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### Viewing cable 09QUITO602, GOVERNMENT INSTITUTIONS STRUGGLE TO ACCOMMODATE

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
09QUITO602 | 2009-07-17 16:20 | 2011-05-02 00:00 | UNCLASSIFIED//FOR OFFICIAL USE ONLY | Embassy Quito

`

    VZCZCXYZ0015
    OO RUEHWEB

    DE RUEHQT #0602/01 1981620
    ZNR UUUUU ZZH
    O 171620Z JUL 09
    FM AMEMBASSY QUITO
    TO RUEHC/SECSTATE WASHDC IMMEDIATE 0637
    INFO RUEHBO/AMEMBASSY BOGOTA 8265
    RUEHBR/AMEMBASSY BRASILIA 4217
    RUEHCV/AMEMBASSY CARACAS 3636
    RUEHLP/AMEMBASSY LA PAZ JUL LIMA 3312
    RUEHGL/AMCONSUL GUAYAQUIL 4486

` `

    UNCLAS QUITO 000602

    SENSITIVE
    SIPDIS

    E.O. 12958: N/A
    TAGS: PGOV PREL EC
    SUBJECT: GOVERNMENT INSTITUTIONS STRUGGLE TO ACCOMMODATE
    NEW CONSTITUTION

    REF: A. QUITO 1010
         ¶B. QUITO 437
         ¶C. QUITO 467
         ¶D. QUITO 329
         ¶E. QUITO 308
         ¶F. QUITO 513

    ¶1. (SBU) Summary: Four of the five branches of government set
    forth in the October 2008 constitution currently exist only
    in interim form, with the result that power has shifted to
    the one branch that enjoys continuity, the Executive.  The
    first phase of the constitutionally mandated transformation
    of government institutions was carried out in a rush by the
    government-dominated Legislative Commission.  The
    independence and impartiality of the transitional
    institutions have been questioned.  The process overall has
    consolidated President Correa's power and his plans to
    implement fully his citizen revolution.  End Summary.

    LEGISLATIVE COMMISSION
    ----------------------

    ¶2. (U) The interim Legislative and Oversight Commission was
    created on October 25, 2008, by decision of the former
    Constituent Assembly, and its 76 members are a subset of that
    Assembly.  46 of those members belong to President Correa's
    Proud and Sovereign Fatherland (PAIS) movement, giving them
    complete control.  Delays beyond what was expected in holding
    the April 26 elections and the proclamation of their results
    have extended the tenure of the Legislative Commission,
    thereby allowing it to pass more legislation with
    long-lasting impact.

    ¶3. (U) As of July 10, the Legislative Commission approved 25
    laws, including important regulations pertaining to the
    justice system, social security, and mining.  The
    constitution required that only five of these laws be
    enacted: the electoral law, the law on food sovereignty, the
    law regulating the Citizen Participation and Social Control
    Council, the law governing the judiciary, and the law
    regulating the judiciary council.  So far, the Legislative
    Commission has shied away from any oversight role, dismissing
    three requests to investigate and/or have a political trial
    of cabinet members.

    ¶4. (U) An example of a controversial law that the Legislative
    Commission chose to act on is the one governing the
    activities and procedures of the legislature, which was
    passed on July 8.  The opposition sustains that this law
    should be written by the National Assembly, which was elected
    on April 26, once it is installed.  The opposition's
    contention is that PAIS wants to avoid legislative oversight
    of the executive function by approving this law in the
    Legislative Commission, where it has a majority.  In a
    conversation with us, PAIS Assembly member Betty Amores
    defended the initiative: "We want to leave everything ready
    so that the new Assembly can start working right away."

    THE JUDICIARY
    -------------

    ¶5. (U) The 2008 constitution's instructions on how to
    establish interim judicial institutions were not implemented
    (Ref A).  The former Constitutional Tribunal declared itself
    the new more powerful Constitutional Court shortly after the
    2008 constitution went into effect.  A majority of the former
    Supreme Court justices refused to comply with a lottery
    mechanism to appoint members of the interim National Court of
    Justice, and after a month of institutional vacuum, the
    Constitutional Court decided to appoint former Supreme Court
    justices not favored by the lottery and former associate
    Supreme Court justices in the order of their merit-based
    rankings.  The 21 seats on the Court were filled in this
    manner on December 2, 2008.

    ¶6. (U) The constitution establishes different mechanisms for
    the appointment of permanent judicial authorities.  Once the
    new authorities in the Executive, Legislative, and
    Transparency branches of government are in place, they will
    appoint two delegates each to a commission tasked with
    appointing the nine Constitutional Court justices, who will
    subsequently be replaced by thirds every three years.  As for
    the National Court of Justice, its 21 members will be
    appointed by the Judiciary Council and one third of them will
    be replaced every three years.  The nine Judiciary Council
    members will be appointed by the Council of Citizen
    Participation and Social Control.

    ¶7. (SBU) The 2008 constitution does not directly grant the
    Executive more power to control the Judiciary.  It does,
    however, open the door for it if the implementing laws and
    regulations provide the government with the control over the
    newly created Transparency and Social Control branch of
    government, which is key in the appointment of judiciary
    institutions (such as the Judiciary Council and the
    Constitutional Court).

    ¶8.  (U) Two of the pieces of legislation passed by the
    Legislative Commission, a reform to the criminal procedures
    law and the organic law governing the judiciary, have
    encountered resistance and generated confusion among the
    judicial community and the general public.  One of the main
    complaints of judicial actors (prosecutors, lawyers, judges,
    etc.) is that they were not involved in the drafting process
    and that as a result some aspects of these laws do not make
    sense.  For example, the number of possible hearings in
    criminal procedures was raised from 16 to 29, thus slowing
    down the administration of justice.  The press extensively
    covered the confusion these laws caused for the judicial
    sector and the public.  For example, one of the new
    provisions requires victims of theft worth less than $654 to
    file a complaint with police stations instead of the
    prosecutor's office, which have led many to feel unprotected.
     PAIS Assembly member Maria Paula Romo defended the reform,
    arguing that based on the new law robbers who did not use
    violence to commit the crime could be sanctioned with
    returning the stolen goods ) in her view, a very effective
    way to compensate the victim.  Additionally, the fact that
    the 2008 constitution placed the Prosecutor's General Office
    and the Ombudsman under the Judiciary -albeit as 'autonomous'
    institutions - has generated further criticism.  The press
    coverage of the reforms was one of the factors that triggered
    president Correa's launch of a crusade to attempt to prove
    the press wrong (Ref B).

    TRANSPARENCY AND SOCIAL CONTROL
    --------------------------------------

    ¶9. (U) The Transparency and Social Control branch of
    government is composed of the Citizen Participation and
    Social Control Council, the Ombudsman, the General
    Comptroller, and the other oversight institutions (currently
    there are three, for banks, companies, and
    telecommunications).  The 2008 constitution tasked these
    institutions with oversight, transparency, the national
    anticorruption plan, and promotion of citizen participation.

    ¶10. (U) Following a highly controversial selection process,
    the members of the interim Citizen Participation and Social
    Control Council were officially inaugurated on January 26.
    According to the 2008 constitution, their job is to draft a
    bill to govern the Council's organization and activities in
    the future and to organize the commissions of citizens to
    appoint around 16 new oversight authorities (Ref C).  The
    interim Council submitted to the Legislative Commission the
    bill it was tasked to draft on May 20, and is in the process
    of organizing the citizen commissions.

    ¶11. (SBU) Given a gap in the constitution's rules for the
    institutional transition, the self-proclaimed Constitutional
    Court ruled that the interim Council also would have to
    appoint the members of the new National Electoral Council,
    the Social Security Institute Board (representing those
    participating in the system), and the civil society
    representatives on the newly created Food Sovereignty
    Council.  Council member Roxana Silva told us on May 29 that
    she expected that the interim Council would continue to work
    for at least two more months.

    ¶12. (SBU) Commentators fear that too much power is
    concentrated in the Transparency and Social Control branch of
    government.  Fundamentally, it has taken away from Congress
    the power to appoint oversight authorities and many fear that
    the procedures regulating citizen participation will be
    arranged to favor the Executive's control over them.  Xavier
    Buendia, Democratic Left Party secretary general, told
    PolCouns that he feared that the government would be in a
    position to restrict property rights through citizen
    commissions in the future.  Those aligned with the government
    disagree.  For example, in a public speech held on May 29,

    PAIS Legislative Commission member Virgilio Hernandez stated
    that the Council was just a "small back office" within the
    new institutional framework.

    THE ELECTORAL INSTITUTIONS
    --------------------------

    ¶13. (U) The 2008 constitution created two electoral
    institutions to replace the former Supreme Electoral
    Tribunal.  The National Electoral Council is tasked with
    administering the elections, and the Electoral Disputes
    Tribunal is charged with resolving electoral disputes.  In
    accordance with the transition regime, the interim members of
    both institutions were chosen on October 24, 2008, by the
    government-controlled Constituent Assembly.

    ¶14. (U) Many commentators have criticized the April and June
    elections for lack of transparency and delays, and some
    political actors have disputed the electoral results alleging
    that there was fraud (Ref D and E).  The complaints filed
    before the Electoral Disputes Tribunal against inappropriate
    campaign spending by PAIS were not upheld, which resulted in
    allegations that the electoral authorities, who were
    appointed by the PAIS-dominated Constituent Assembly, sided
    with the government.  To its credit, the interim National
    Electoral Council did impose some discipline, such as
    forbidding use of PAIS slogans in government advertising and
    forcing Correa to cancel his April 25 radio address (which
    would have been the day before the elections).  Some of the
    interim electoral authorities, have expressed their desire to
    stay at their jobs after the interim appointment expires.
    However, National Electoral Council president Omar Simon told
    PolCouns that he considered it unethical to remain given that
    the National Electoral Council will appoint the Citizen
    Participation and Social Control Council, which will then be
    in charge of the process to select the new National Electoral
    Council.

    THE EXECUTIVE
    -------------

    ¶15. (U) Even the one branch of government not reorganized or
    established under the 2008 constitution has undergone
    changes.  Since his reelection on April 26, President Correa
    has made nine cabinet changes, which respond to Correa's
    desire to consolidate his power by bringing in cabinet
    members who would help him expand his support base.  During
    his June 13 radio/TV address, Correa stated: "We are clear
    that we have to transform this huge political capital that we
    have, which was ratified on April 26, into mobilization and
    organizational capacity."  Correa's new four-year term will
    officially begin on August 10 and, in accordance with the
    2008 constitution, will end on May 24, 2013.

    ¶16. (SBU) The electoral win appears to give Correa enough
    strength to overlook binding legal provisions when he chooses
    to do so and to speed up implementation of his government
    plan.  For example, Correa issued a decree on June 16
    creating the National Secretary of Intelligence, which
    restructures intelligence agencies in such a way that
    provides more control to the executive and less autonomy to
    the armed forces.  This new agency stands outside of the
    national security law currently in force, but the government
    is confident that the Legislative Commission will soon
    approve new legislation in line with the presidential decree
    (Ref F).

    ¶17. (U) An administrative re-organization is also being
    considered by the government.  The national planning agency,
    SENPLADES, is putting together a plan for organizing national
    government services in seven regions.  The plan is in its
    preliminary state, yet it has already caused controversy
    among cities that are competing to become regional capitals
    ) notably, Guayaquil was not to be the capital of the region
    that comprises Guayas, Los Rios, Santa Elena, and Bolivar
    provinces.

    COMMENT
    -------

    ¶18. (SBU) Many questions about the future shape of
    institutions and the independence of the various branches of
    government remain unanswered, but developments so far are not
    reassuring.  Correa's electoral victory has fuelled his
    belief that he and PAIS embody the changes demanded by

    Ecuadorians.  The interim, PAIS-dominated legislature's rush
    to enact many fundamental laws before the new National
    Assembly members can take their seats raises doubts that the
    Correa administration is willing to promote debate and seek
    consensus on the new institutional order.

    HODGES

`