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PP RUEHWEB

DE RUEHDG #1608/01 2911521
ZNR UUUUU ZZH
P 171521Z OCT 08
FM AMEMBASSY SANTO DOMINGO
TO RUEHC/SECSTATE WASHDC PRIORITY 1584
INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE PRIORITY
RUEHWN/AMEMBASSY BRIDGETOWN PRIORITY 2195
RUEHCV/AMEMBASSY CARACAS PRIORITY 0934
RUEHGE/AMEMBASSY GEORGETOWN PRIORITY 1104
RUEHKG/AMEMBASSY KINGSTON PRIORITY 2896
RUEHPO/AMEMBASSY PARAMARIBO PRIORITY 1229
RUEHPU/AMEMBASSY PORT AU PRINCE PRIORITY 4864
RUEHSP/AMEMBASSY PORT OF SPAIN PRIORITY 1930
RUEHUB/USINT HAVANA PRIORITY 0209
RUEAIIA/CIA WASHINGTON DC PRIORITY
RHEFDIA/DIA WASHDC PRIORITY
RUMISTA/CDR USSOUTHCOM MIAMI FL PRIORITY

UNCLAS SANTO DOMINGO 001608 
 
SENSITIVE 
SIPDIS 
 
STATE FOR WHA/CAR 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM ECON DR
SUBJECT: FERNANDEZ'S PRIORITY: A NEW CONSTITUTION 
 
REF: 06 SANTO DOMINGO 3521 
 
¶1. (SBU) Summary:  On September 18, President Fernandez 
delivered his long-promised draft of a new constitution to 
the Congress.  With the goal of a "democratic revolution," 
Fernandez proposes changes to the judiciary, presidential 
re-election, electoral system, nationality, and many other 
areas.  While the most attention has been paid to the 
amendment on presidential re-election, which could 
potentially allow Fernandez to stay in office until 2020, the 
changes to the judiciary are perhaps the most far-reaching. 
There is widespread support for constitutional reform, if not 
for the specific changes proposed or the process for 
approving the amendments.  We do not expect this process to 
cause the political upheaval that constitutional change has 
in Bolivia and Ecuador; however, Fernandez does face a 
challenge in obtaining consensus on the new charter, 
including from within his own PLD party.  End summary. 
 
New Constitution 
---------------- 
 
¶2. (SBU) Fernandez launched "constitutional reform," as the 
process is known here, in November 2006 with a major speech 
and series of public consultations on what changes were 
needed to the charter (Reftel).  The President argues that 
the current constitution does not adequately address the 
issues of civil rights, electoral supervision, presidential 
prerogatives, and judicial review.  He asserts that in the 
worst of cases, it would not bar the return of dictatorship. 
By mid-2007, the process fell from public view as the 
proposed amendments began to be drafted and the presidential 
election of May 2008 approached.  The new draft has 254 
articles, almost double that of the 1966 charter. 
 
¶3. (SBU) PRESIDENTIAL RE-ELECTION:  By one count, the 
Dominican Republic has modified or rewritten its constitution 
on 32 occasions since independence.  Controversy over 
presidential re-election has been a recurring theme, with the 
majority of the 32 modifications addressing that issue.  The 
three main political parties here have switched positions on 
the issue repeatedly to suit the desires of their sitting 
presidents.  In 1994, the PRSC supported re-election, but 
ultimately succumbed to the efforts of the PLD and PRD to ban 
the practice.  In 2002, the PRD pushed through an amendment 
permitting re-election against the opposition of the PRSC and 
PLD.  And in during the 2008 election, it was the PLD's turn 
to promote re-election, as Fernandez justified running for a 
second term against the wishes of the PRSC and PRD. 
 
¶4. (SBU) Fernandez now proposes to allow presidents to run 
for more than two terms, provided that they leave office for 
four years before again seeking the presidency.  Since 
Fernandez will have served eight years in office by 2012, the 
amendment would appear to require him to step down at that 
time.  However, several commentators -- including a respected 
NGO leader (publicly) and at least one PLD minister 
(privately) -- have raised the possibility that Fernandez 
will promote an interpretation of the new constitution as 
applying only to future terms.  Such an interpretation would 
allow the President to stay in office until 2020 and would 
likely be strongly opposed by senior leaders in the PLD 
concerned about the action's impact on Dominican democracy, 
as well as on their own prospects for seeking the presidency. 
 Fernandez's chief rival within the party, former Chief of 
Staff Danilo Medina, is particularly strong in the Congress, 
which must approve the new constitution by a two-thirds vote. 
 (Note: The PLD holds the required majority in the Senate, 
but not the House.  For additional votes, the President is 
courting the PRSC party, whose Secretary-General accompanied 
Fernandez when the draft charter was presented to Congress.) 
 
¶5. (SBU) JUDICIAL SYSTEM:  The draft constitution includes a 
series of changes to the judiciary, including expanded powers 
to the Council of Magistrates, seven-year terms and 
performance evaluation for Supreme Court justices, a new 
constitutional chamber for the Supreme Court, an independent 
Administrative Court, and a requirement that appeals court 
judges be career officers.  There is widespread support here 
for a "second wave" of legal reforms to complement the 
modest, but important, gains made since a judicial reform 
effort was launched in 1994.  As for the specific amendments 
proposed by Fernandez, most legal scholars and other 
commentators have yet to make detailed comments.  USAID LES 
describe the draft changes as holding a good deal of promise, 
but requiring a number of clarifications before they can be 
fully assessed.  Post will follow this debate closely, given 
the importance of law enforcement issues here and the 
significant assistance that USAID has provided to the 
Dominican legal sector for the past 11 years.  While the 
changes to the judiciary have been the most debated, a second 
area of particular concern is the possible affect on the 
Public Ministry's career law and independence from the 
Executive Branch. 
 
¶6. (SBU) ELECTORAL SYSTEM:  The Dominican electoral system 
has improved considerably since the fraudulent 1994 election. 
 Fernandez proposes to strengthen the system further by 
creating an Electoral Prosecutor and Superior Electoral Court 
to handle violations and legal challenges.  Such a change 
would permit the existing Central Elections Board (JCE) to 
focus on the administration of elections and, by eliminating 
the JCE's contentious chamber, would remove the current 
acrimony between the Board's complex administrative, 
contentious, and plenary bodies.  In addition, the new 
constitution would require presidential and 
congressional/municipal elections to be held at the same 
time, instead of the current system in which they are offset 
by two years (both serve four-year terms).  (Note:  This is a 
positive change:  It would reduce the nearly constant 
campaigning here, thereby reducing campaign spending and 
allowing office-holders to focus on governing.) 
 
¶7. (SBU) NATIONALITY:  A proposed amendment would deny 
Dominican nationality to children born in the country to 
illegal immigrants.  This change, which would affect the 
large Haitian and Haitian-Dominican communities, would simply 
make constitutional an interpretation of the migration law 
which has already been upheld by the Supreme Court. 
Nevertheless, the denial of nationality to persons born here 
is major political issue since it is strongly opposed by 
Haitian-Dominicans.  Some Dominicans have also spoken out 
against the practice, partly because programs to provide 
alternative documentation have not been successful to-date. 
In addition, while many affected individuals are eligible for 
Haitian citizenship, some do not want it (because they 
consider themselves Dominican) or cannot obtain it because of 
bureaucratic hurdles -- leaving them functionally stateless. 
Another proposed amendment has some positive potential in 
that it grants citizenship to persons born to stateless 
parents; however, it would be of little use if government 
authorities refute the parents' claim of statelessness.  A 
third amendment states that public education shall be 
provided to persons legally residing in the country, raising 
the concern that illegal immigrants -- who are currently 
permitted to study through the eighth grade -- will be turned 
away from schools completely. 
 
¶8. (SBU) OTHER AMENDMENTS:  Additional proposed changes to 
the constitution of note include: 
-- Formation of a National Security Council; 
-- An increase in House of Representatives seats from 154 to 
a range of 175-250, including new seats to represent the 
Dominicans diaspora overseas (the Senate would also gain 
seats for the diaspora); and 
-- Creation of a mechanism for public referendum. 
 
Reactions 
--------- 
 
¶9. (SBU) Given the length and complexity of the draft 
constitution, opposition parties and civil society are only 
beginning to make substantive comments on the proposed 
charter.  Former President Hipolito Mejia, of the PRD party, 
has argued that now is not the right time for a major 
political project such as constitutional change, given the 
need to respond to the international financial crisis.  Other 
PRD leaders are pressing for the draft document to be 
considered by a constituent assembly instead of the sitting 
congress.  Several prominent civil society leaders also 
support the constituent assembly idea. Indeed, some have 
argued, including the President of the Autonomous University 
of Santo Domingo, that the so-called reform is actually 
unconstitutional, as it is so extensive that it is actually a 
new constitution, which, under the current constitution, 
requires a constituent assembly.  However, Fernandez has 
shown little inclination to accept the proposal.  Civil 
society has also commented that several articles could 
increase what they consider to be already excessive 
presidential power vis-a-vis other branches of government. 
Finally, NGOs have taken the lead in raising the possibility 
that Fernandez will seek to stay in office beyond 2012 and 
are calling for the new constitution to explicitly state that 
terms already served when the charter is approved will apply 
towards term limits. 
 
Process 
------- 
 
¶10. (U) In addition to the constituent assembly issue, there 
have also been differences regarding the process for 
approving the new constitution.  After submitting the draft 
to Congress, Fernandez launched the "Forum for Constitutional 
Reform," a series of public dialogues.  The President 
skillfully secured the support of two influential, 
politically independent Dominicans to help run the dialogues, 
Monsignor Agripino Nunez Collado (a university rector) and 
Servio Tulios Castanos (Executive Vice-President of the NGO 
FINJUS).  Many leaders in Congress, where the charter will 
eventually be voted on, consider the Forum an encroachment on 
their prerogatives.  Senate President Reinaldo Pared Perez -- 
who is also the Secretary-General of Fernandez's PLD party -- 
seized on a remark by Castanos, saying that the NGO leader 
had disrespected the Congress by implying that legislators 
needed advice on complex constitutional issues.  Neney 
Cabrera, of the PRD, noted that civil society and others 
could just as easily express their views of the draft 
constitution to the Congress as they could to the Forum. 
 
Comment 
------- 
 
¶11. (SBU) Given the need for more Presidential action to 
address the multiple socioeconomic problems of the Dominican 
Republic, it is difficult for American observers to 
understand why Fernandez would choose a new constitution as a 
priority.  Of course he is not alone among Latin American 
leaders in viewing constitutional change as a panacea.  We 
suspect that, as a former law professor, Fernandez enjoys 
this issue far more than the challenges of corruption, the 
electricity sector, education system, and other issues where 
enacting reform carries significant political costs.  The 
timing of the international financial crisis is bad luck for 
the President, who already had to postpone constitutional 
reform for over a year during the election campaign.  Post 
has so far refrained from public comment on the new charter. 
However, as analysis of the document by constitutional 
scholars and civil society continues, we will keep on eye on 
key areas of U.S. interest.  These include the judicial 
system, where we have 11 years of USAID investment to 
protect, and presidential re-election, where an overt attempt 
by the President to remain in office for 16 years would raise 
serious questions about the democracy.  At the moment, 
Fernandez says he wants a system where the President cannot 
"perpetuate himself in power."  We'll see. 
 
(U) Please visit us at 
http://www.state.sgov.gov/p/wha/santodomingo/  
FANNIN