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Cablegate: Mas Takes Steps Against Constitutional Tribunal

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DE RUEHLP #2305/01 2331926
ZNR UUUUU ZZH
R 211926Z AUG 07
FM AMEMBASSY LA PAZ
TO RUEHC/SECSTATE WASHDC 4739
INFO RUEHAC/AMEMBASSY ASUNCION 7013
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UNCLAS LA PAZ 002305

SIPDIS

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL ECON PHUM BL
SUBJECT: MAS TAKES STEPS AGAINST CONSTITUTIONAL TRIBUNAL

REF: LA PAZ 1664

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Summary
-------

1. (SBU) On August 16, the Constitution Commission in
Bolivia's lower house of Congress submitted a report
recommending legal action against all but one of Bolivia's
five Constitutional Tribunal judges (the Constitutional
Tribunal rules on the constitutionality of laws, while the
separate Supreme Court acts as the court of final appeal.)
In recommending that a case against the magistrates be filed
in the Senate, the lower house may have violated Bolivia's
constitution, because it did not wait for the required ruling
on the magistrates' prior appeal for legal protection. If a
formal accusation is lodged, the magistrates will be
temporarily suspended until the Senate tries the magistrates.
In the mean time, Bolivia will have no legal body overseeing
the constitutionality of laws, giving the Executive Branch
greater leeway without constitutional oversight. Although
the Senate seems likely to vote not to convict, ruling party
Movement Toward Socialism (MAS) senators are likely to stall
the vote, leaving Bolivia without effective constitutional
oversight at a critical time.

-----------------
The Legal Process
-----------------

2. (SBU) The case against the Constitutional Tribunal
judges is in the preparatory stage in the lower house's
Constitution Commission. During this phase, the subjects of
an impeachment case have the right to file an appeal for
legal protection, which the magistrates did, claiming that
their rights were being violated. This appeal for legal
protection was accepted by the Congress and transferred to
the district court, which in turn decided that the lower
house's Human Rights Commission must rule on the issue. The
Human Rights Commission has not yet issued a decision, and
therefore the case should not proceed. However, the MAS
party has a majority in the Constitution Committee (and in
the lower house overall). Taking advantage of this majority,
the MAS representatives have continued with the case and on
August 16 published a report that recommends that the Senate
impeach the Constitutional Tribunals. There has not yet been
a formal accusation from the President of the lower house, a
necessary step if the case is to be put before the Senate
(reftel.)

----------------------
Potential Implications
----------------------

3. (SBU) If the President of the lower house submits the
case to the Senate, the judges will be automatically
suspended (even before the Senate makes a decision.) There
is no legal limit to the deliberation period, and while the
opposition has a one-seat majority in the senate, the MAS
could use stalling tactics to prevent a final vote (keeping
the Tribunal in limbo.) The judges remain suspended until
the senate reaches a decision. In such a situation,
substitutes (suplentes) are intended to replace the suspended
judges. However, currently the Constitutional Tribunal does
not have substitutes available to take over, which would
leave a Constitutional Tribunal comprised of only Judge
Silvia Salame, who by herself would not have the necessary
quorum to issue constitutional decisions. Thus Bolivia could
be left without a body to determine constitutionality,
leaving President Morales and the Executive branch with
ever-more unfettered powers. (Note: On August 19, Vice
President Garcia Linera suggested that the Congress would
elect new tribunals as soon as possible. Election of
magistrates requires a two-thirds vote of the combined Senate
and lower chamber. End note.)

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Comment
-------

4. (SBU) The recommendation by the Constitutional
Commission does not have any legal power without action by
the president of the lower house, and therefore this newest
wrinkle in the Constitutional Tribunal situation may pass
without further issue. If the impeachment process continues,
a suspension of the Constitutional Tribunal would come at a
particularly difficult time, since a number of issues
currently being debated in the Constituent Assembly could be
subject to oversight from the Constitutional Tribunal:
without a Constitutional Tribunal, these constitutional
questions would be left unanswered. On August 20, the
Bolivian Bar Association issued a statement: "To close the
Tribunal means to remove the only legitimately empowered
arbitration which can revise the acts and resolutions of the
Assembly and implies the coming of juridical chaos and
violence." Whether or not the judges are eventually
suspended or impeached, the action by the lower house's
Constitutional Commission seems to be yet another example of
the MAS testing the limits of its powers. In addition, the
impeachment of the constitutional tribunal justices is part
of an ongoing MAS campaign to discredit the judiciary, a
branch of government the MAS currently does not control. End
summary.

GOLDBERG

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