US embassy cable - 05QUITO2706

UNCLAS SECTION 01 OF 02 QUITO 002706 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV, KJUS, PREL, EC, OAS 
SUBJECT: SUPREME COURT SELECTED, FIRST STEP IN DEMOCRATIC 
REBUILDING 
 
REF: QUITO 2235 
 
1.  (SBU) Summary:  Achieving a major democratic milestone 
and goal of the mission's democracy support strategy 
(RefTel), on November 28 a new, more independent Supreme 
Court was named unanimously by the special selection 
committee, permitting an inauguration ceremony to take place 
on November 30.  The selection of the court came after tense 
final negotiations and culminates a six-month selection 
process mandated by Congress after the discredited former 
court was disbanded in the wake of the irregular change of 
government in April.  The new court will immediately face 
challenges to its legitimacy, since it was selected by 
extra-constitutional means.  The international community, 
especially USG-supported OAS monitors, played a critical role 
which helped the selection commission overcome its 
differences.  The court's first task will be to select a new 
national judicial council, which in turn will nominate a 
replacement Constitutional Tribunal.  Doing so would fill the 
current vacuum there and reconstitute a more independent 
judiciary after almost a year of judicial uncertainty.  End 
Summary. 
 
What Constitution? 
------------------ 
 
2.  (U) The Supreme Court and Constitutional Tribunal were 
dissolved (unconstitutionally) by Congress shortly after the 
irregular change of government in April.  Congress then 
passed a law mandating a new (extra-constitutional) selection 
process for the new court.  This all came in the wake of an 
unsuccessful last-ditch attempt by ex-president Lucio 
Gutierrez to quell street protests leading to his ouster by 
(unconstitutionally) disbanding the court his allies had 
(unconstitutionally) packed in December, 2004. 
 
3.  (U) Lack of political support for a return to the 
original (politicized) court caused Congress, the 
international community (UN Rapporteur for Judicial Affairs, 
the OAS, the Community of Andean National), and others to 
support the new selection process imposed by Congress with 
only minor modifications, despite it being 
extra-constitutional.  The law created a selection committee 
and included a point system for qualifying candidates.  It 
also mandated that the court's 31 members be apportioned by 
affiliation (11 to sitting members of the judiciary, 10 to 
academic legal theorists, and 10 to independent lawyers), but 
included an exceptional provision (Art. 17) to select the 
court by simple numerical rank (top 31 of over 100 qualified 
candidates) in the event of lack of consensus. 
 
Down to the Wire 
---------------- 
 
4.  (U) The selection process, while relatively transparent, 
was not devoid of political pressure.  The selection 
commission president reported receiving threats.  On November 
24, the commission aborted a scheduled press event to 
introduce the new court, for lack of consensus over the 
selection method.  Political parties favored respecting the 
mandate to allocate seats by affiliation, anticipating 
challenges by a disgruntled judiciary, whose representatives 
scored poorly on qualifying exams.  OAS, UN, CAN and national 
observers worked feverishly to encourage consensus inside the 
commission.  Time was running out on the process, since by 
law, nominees needed to disclose their assets before the 
inauguration ceremony scheduled for November 30.  After a 
readjustment of the rank order of some justices after final 
reconsideration, consensus was finally achieved late on 
November 28 and the commission voted unanimously in favor of 
the application of Article 17, automatically naming the top 
31 qualified candidates to the court. 
 
5.  (U) Of the 31 selected, only five came from the ranks of 
the judiciary, 18 hail from academia, and eight came from the 
ranks of independent lawyers.  Three of the justices selected 
had previously served on the court deposed by Congress in 
December 2004.  Only two of the 31 Supreme Court justices are 
women. 
 
Comment 
------- 
 
6.  (SBU) Ecuador's democratic institutions were severely 
strained by the irregular change of government, undermining 
confidence in democracy and creating an urgency for repair. 
Now selected, the new court gains legitimacy benefits from 
its relatively transparent and independent selection process, 
but it will face predictable challenges to its legitimacy. 
To protect against constitutional challenge, some are calling 
for a popular referendum to ratify the court.  Given the 
current stand-off between the Executive and Congress over the 
government's proposed referendum, however, it is doubtful the 
court will be fortified much beyond the inauguration 
ceremony, to be attended by OAS SecGen Insulza and UN 
Rapporteur Leandro Despouy.  The Charge will represent the 
Embassy. 
 
7.  (SBU) After its inauguration, the court will be severely 
tested, both by the backlog of high-profile cases (including 
charges pending against imprisoned ex-president Gutierrez) 
and the selection of the new national judicial commission. 
Once the commission helps reconstitute the Constitutional 
Tribunal, Ecuador will have filled a dangerous vacuum in its 
judiciary.  We believe this overall effort, despite the 
recourse to extra-constitutional procedures, merits 
international support. 
 
Suggested Press Guidance 
------------------------ 
 
8.  (U) We offer the following suggested guidance for press 
inquiries: 
 
-- We congratulate Ecuador for the re-establishment of the 
Supreme Court. 
 
-- We were proud to support OAS oversight of the selection 
process. 
 
-- A well-qualified and independent judiciary is essential 
for effective democratic governance and economic 
competitiveness. 
 
-- (If asked) We do not presume to interpret Ecuador's 
constitution.  That is for Ecuadorian institutions to decide. 
BROWN