US embassy cable - 05QUITO881

C O N F I D E N T I A L QUITO 000881 
 
SIPDIS 
 
E.O. 12958: DECL: 04/20/2015 
TAGS: PGOV, KDEM, EC 
SUBJECT: ECUADOR'S ADMINISTRATION CHANGE:  CONSTITUTIONAL 
OR NOT? 
 
REF: QUITO 871 AND OTHERS 
 
Classified By: Ambassador Kristie A. Kenney, Reason 1.4 (b) 
 
1.  (C) SUMMARY:  Opinions differ here on whether Congress's 
dismissal of ex-President Gutierrez was constitutional.  In 
play is whether Ecuador's supreme law required a simple or 
two-thirds majority to remove the chief executive on 
"abandonment of office" charges.  With few demanding 
Gutierrez's re-instatement, and given Ecuador's recent 
history of changing presidents on borderline-legal grounds, 
the issue seems more academic than relevant.  END SUMMARY. 
 
2.  (U) Sixty Congressional deputies, assembling at offsite 
location CIESPAL, voted April 20 to remove GoE President 
Lucio Gutierrez, ushering in the succession of then-VP 
Alfredo Palacio.  The legislators cited Article 167, Section 
6 of the Ecuadorian constitution, which states that "The 
president of the republic will cease in his functions and 
leave vacant his position for abandonment of office, declared 
by Congress."  Article 168 notes that in the absence of the 
president, the vice president will serve out the term. 
 
3.  (U) As expected, pro- and anti-Gutierrez elements differ 
on the legality of yesterday's events.  Former Legal Adviser 
Carlos Larrea considered Congress's move unconstitutional. 
Article 130 gave the legislature power to remove the chief 
executive via a political trial; that procedure required a 
two-thirds vote (67 members) of Congress.  As Article 167 
also concerned the president's removal, but did not specify 
the majority needed, the logical interpretation was that it 
too required 67 votes.  Larrea also disparaged the 
"abandonment of office" grounds, noting the president was 
working for a crisis solution until being forced to flee the 
Presidential Palace. 
 
4.  (SBU) Social Christian Deputy and former Constitutional 
Affairs Committee Chairman Luis Fernando Torres differed in 
opinion.  Articles 130 and 167 were distinct, he claimed, and 
the framers purposely intended a lower bar for the 
abandonment of power charge.  Taking a different tack on 
constitutional interpretation, Torres argued that, since the 
drafters had not specified a special majority in Article 167, 
than a simple majority would suffice.  He claimed that 
Ecuador's Constitutional Tribunal had ruled similarly after 
the 1997 removal of Abdala Bucaram, although an older 
constitution was then in force. 
 
5.  (C) COMMENT:  Regrettably, Ecuador's constitutions are 
best drafted in pencil, as open to interpretation by 
politicians as courts.  Both sides have offered compelling, 
logical arguments regarding the constitutionality of the 
April 20 presidential succession; we are torn between them. 
Yet the question really is moot.  Gutierrez is gone, for 
example, and no one is calling for his return.  Ecuador's 
Constitutional Tribunal, a court that the former president 
packed with supporters, may soon disband itself, and its 
successor, likely staffed by the new majority, surely will 
issue a ruling that legalizes the transition. 
KENNEY