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C O N F I D E N T I A L LA PAZ 002464 
 
SIPDIS 
 
E.O. 12958: DECL: 10/30/2018 
TAGS: PGOV ECON KDEM PREL PHUM PINR ENVR BL
SUBJECT: BOLIVIA: MAS CONTINUES PURGE OF JUDICIARY 
 
REF: A. 07 LA PAZ 688 
     ¶B. 07 LA PAZ 3258 
     ¶C. 07 LA PAZ 1467 
 
Classified By: EcoPol Chief Mike Hammer for reasons 1.4 (b) 
and (d) 
 
¶1. (C) Summary:  Bolivian President Evo Morales and his 
ruling Movement Toward Socialism (MAS) party are moving 
aggressively once again to bring to heel dissident members of 
the country's judiciary, including the Supreme Court, and to 
install new justices more amenable to the MAS vision.  Recent 
comments by Bolivian Vice-President Garcia Linera that "most 
members" of the judiciary in Bolivia are corrupt have raised 
opposition fears of a movement against the Supreme Court 
reminiscent of the 2007 dismantling of the Constitutional 
Tribunal.  The MAS plans to elect at least twelve new members 
of the judiciary to fill current vacancies, including nine 
members of the Constitutional Tribunal, a Supreme Court 
justice, and two members of the National Electoral Court. 
The Morales administration's antipathy toward the Supreme 
Court has been stoked by rulings that attempted to end the 
ongoing detention of ex-Pando Prefect (governor) Leopoldo 
Fernandez in a La Paz prison, and transfer him instead to 
Sucre for impeachment hearings.  Government Minister Alfredo 
Rada defied the court order and, in a counter-attack, brought 
charges against two Supreme Court justices for "attempting to 
aid a fugitive."  The MAS has similarly pressured the 
country's Attorney General, Mario Uribe, to stop supporting 
the Supreme Court's decision.  Uribe now appears to have 
abdicated his role as prosecutor, giving power to the 
Congress (read: the MAS) to conduct the investigation.  The 
Vice-President has further upped the ante, calling for 
"reform and transformation" of the judiciary and asserting 
that any failure by members of the judiciary to toe the MAS 
party line is "proof of their corruption."  An opposition 
contact tells us that Morales and the MAS are determined to 
get their way, first by asking nicely, then by discreetly 
threatening family members, and finally by planting 
accusations in the press and/or opening public 
investigations.  This recipe follows exactly the pattern used 
in 2007 to dislodge opposition members of the Constitutional 
Tribunal.  End summary. 
 
- - - - - - - - - - - - - - - - - - - - - - - 
2007: MAS destroys the Constitutional Tribunal 
- - - - - - - - - - - - - - - - - - - - - - - 
 
¶2. (SBU) The Bolivian judiciary is comprised of three main 
elements: the Constitutional Tribunal, the Supreme Court, and 
the National Electoral Court.  (A fourth group, the Judicial 
Council, acts as an oversight body.)  The Constitutional 
Tribunal is Bolivia's highest court on constitutional 
matters, and the Supreme Court is the highest court of 
appeals for all other matters. The National Electoral Court 
rules on all matters related to elections. 
 
¶3. (C) In 2007, President Morales and his ruling MAS party 
effectively dismantled the Constitutional Tribunal, which has 
not recovered since then.  In 2008, it appears they may be 
ready to follow a similar path against the Supreme Court.  Of 
the three judicial institutions, the Constitutional Tribunal 
is considered the most fragile because, according to a former 
Tribunal magistrate, it serves as "the brake on excessive 
power in the Executive branch." (Reftel A)  By early 2007, 
President Morales and the ruling MAS party had become hostile 
toward the Tribunal, which they saw as opposing their change 
agenda.  In response, the MAS developed a multi-pronged 
strategy to shut it down: the Tribunal members' salaries were 
cut in half; Morales accused them of being corrupt and 
protecting narco-traffickers (without presenting proof of 
either); the MAS allegedly had the members pressured with 
threatening phone calls; Morales encouraged a protest by MAS 
supporters (where marchers exploded dynamite at the door of 
the Tribunal building, destroying its facade and badly 
injuring a police officer); and in May 2007 the Congress 
opened impeachment proceedings against four magistrates. 
(Reftel B)  Although the impeachment proceedings failed, the 
overall strategy worked.  By the end of 2007, following a 
series of resignations (many coerced), the Tribunal was 
reduced from ten members (including five alternates) to one, 
rendering it unable to reach a quorum of three and 
effectively defunct.  The Tribunal now has a three-year 
backlog of cases (and growing), according to a recent report 
in leading daily La Razon.  More importantly, it is unable to 
rule directly on the constitutionality of measures taken by 
the Morales administration. 
 
- - - - - - - - - - - - - - - - - - - - - - - - - - - 
Pando Ruling Re-Triggers MAS' Ire Toward Supreme Court 
- - - - - - - - - - - - - - - - - - - - - - - - - - - 
 
¶4. (SBU) Morales' antipathy toward the Supreme Court is also 
not new.  In April 2006, he argued that "certain sacred cows 
of the judiciary" do not wish to "go along with the 
government's policies of change."  In October 2006, he called 
the Supreme court a "relic of the colonial state."  At the 
opening of the 2007 judicial year, Morales denounced the 
entire system as corrupt and "smelling of dollars."  As they 
did with the Constitutional Tribunal, the Morales' 
administration publicly pressured the justices, urging them 
to change their recalcitrant ways and follow the MAS program 
of change.  Morales cut the justices' salaries in half. 
(Note: While the Bolivian government cut the salaries of all 
government employees, Constitutional Tribunal magistrates and 
Supreme Court justices felt the cuts were being done to 
pressure them to resign. End note.)  On May 21, 2007, Supreme 
Court magistrate Juan Gonzales Ossio resigned, citing 
pressure and "the constant questioning of the judiciary."  On 
December 5, 2007, the Congress passed impeachment charges 
against another of the justices, which failed but kept the 
magistrate, Rosario Canedo, suspended until the Senate acted 
to reinstate her on April 10. 
 
¶5. (SBU) Since the attempted impeachment of Canedo, the 
political storms surrounding the Supreme Court had abated 
somewhat.  However, a series of recent Supreme Court rulings 
regarding the imprisonment of ex-Pando Prefect (Governor) 
Leopoldo Fernandez has started another round of pressure 
tactics from the MAS.  As part of the state of siege declared 
in Pando, the Bolivian government confined Fernandez in a La 
Paz jail and opened criminal proceedings against him for 
allegedly directing the September 11 killings in Pando.  At 
roughly the same time, the prosecutor's office in Sucre, 
headed by Attorney General Mario Uribe, opened a separate 
impeachment case against Fernandez for abuse of his powers as 
a Prefect.  The Supreme Court reviewed the two cases and 
decided that as a Prefect, Fernandez could not be legally 
tried in normal criminal proceedings in La Paz, but should 
instead be moved to Sucre, the judicial capital of Bolivia, 
for impeachment hearings.  The Judicial Council, acting in 
its oversight capacity, reprimanded the La Paz judge that 
accepted the criminal case against Fernandez, stating that 
the judge should have known the case would require 
impeachment hearings and that La Paz would not be the correct 
jurisdiction. 
 
¶6. (SBU) However, MAS Government Minister Alfredo Rada 
publicly disagreed with the decision to move Fernandez.  He 
criticized the judgments and refused to release Fernandez 
from the La Paz prison, where MAS-affiliated social groups 
were keeping a round-the-clock vigil.  In response, the 
Supreme Court affirmed its stance, and gave a second deadline 
to move Fernandez to Sucre for impeachment proceedings, which 
was also ingored.  On November 5, Vice-Minister Wilfredo 
Chavez, in conjunction with Rada and Defense Minister Walker 
San Miguel, opened a complaint and investigation against 
Supreme Court Justices Jose Luis Baptista and Angel Irusta 
for "aiding a fugitive" from the law when they "had no 
competency in the case."  At the same time, the government 
publicly denounced the head of the Judicial Council for 
criticizing the La Paz judge who accepted the criminal case 
against Fernandez.  Then, after repeatedly and publicly 
stating his support for the Court's verdict to move the case 
to Sucre, Attorney General Uribe released a letter correcting 
himself and stating his new belief that the MAS-controlled 
Congressional commission should investigate Fernandez' 
crimes, not the prosecutor's office.  Uribe's reversal came 
after a the same commission opened proceedings against him to 
investigate his potential "undue influence" in the Fernandez 
case.  PODEMOS Senator Luis Vasquez called the MAS' use of 
Congressional investigations into Uribe and seven other 
members of the judiciary "a coup d'etat against the judicial 
branch." 
 
¶7. (SBU) On November 10, Vice-President Garcia Linera took 
his turn in denouncing the judiciary, stating that "a 
majority of the members of the judicial system" are corrupt 
and calling for its "reform and transformation."  Garcia went 
on to say that the desire of judges to defend the court was 
proof of their "corruption and chicanery."  He added that, 
"the Government has a clear role in defending the 'State of 
the Law,' its judgment."  In a response reported by leading 
daily La Razon, Supreme Court Chief Justice Eddy Fernandez 
called the Vice-President's comments an indication of the 
government's intent "to behead the leadership of the judicial 
branch in the same way they did with the Constitutional 
Tribunal."  Fernandez remarked that there is always conflict 
between government powers, and requested that the executive 
branch respect the independence of the others. 
 
- - - - - - - - - - - - - - - - - 
Stacking the Courts with MASistas 
- - - - - - - - - - - - - - - - - 
 
¶8. (C) At the same time as they are pressuring the existing 
members of the judiciary, the Morales government is preparing 
to fill vacancies in all three wings of the judiciary.  The 
MAS plans to elect at least twelve new members, including 
nine members of the Constitutional Tribunal, a Supreme Court 
justice, and two members of the five-member National 
Electoral Court.  Past Tribunal and Supreme Court 
appointments have been blocked by the Senate, which the 
opposition controls.  However, the MAS may feel the 
opposition's current state of disarray, plus the recent 
compromise on the text of the draft Constitution (which a 
majority of the opposition ultimately supported), will give 
it the strength it needs to push through new nominations. 
There is also debate as to whether the new vacancies would be 
filled for their full terms (up to ten years in the case of 
the Constitutional Tribunal and the Supreme Court) or for 
just two years until the new Constitution is projected to 
take effect.  The MAS has come out in support of interim 
appointments, while PODEMOS leadership is divided.  Senator 
Carlos Boerth supports a transition period, while Senator 
Luis Vasquez has insisted that any new appointments follow 
the current Constitution, as it is the only one in effect and 
does not allow for interim appointments. 
 
¶9. (C) The Electoral Court, in addition to missing two 
members, is faced with the pending expiration of Court 
Vice-President Jeronimo Pinheiro's term in office, which ends 
in December.  Without Pinheiro or the appointment of two new 
Court members, the Electoral Court would be unable to certify 
the legitimacy of the January 25 constitutional referendum. 
The MAS introduced legislation on November 18 to extend the 
tenure of both Pinheiro and Court member Amalia Oporto 
through January 2010.  Vice-President Garcia Linera has taken 
a harder line, promising to convoke the Congress immediately 
to fill all pending vacancies across the judiciary.  (Note: 
While the Senate has in the past blocked appointments, Garcia 
Linera's aggressive stance likely signals a willingness to 
use whatever tools are necessary to work a deal, from the 
usual political "carrots" to "sticks" that could include 
surrounding the Congress with MAS-affiliated protestors.  End 
note.)  PODEMOS Senator Vasquez reacted strongly against the 
proposed extension of tenure, saying the MAS was acting 
unconstitutionally by working to get around the Congress' 
duty to elect Court members.  Once passed in the lower house, 
the legislation would go to the Senate, where it would have 
to be acted on within 15 days or go to a vote of the full 
Congress (where it would require only a simple majority to 
E 
pass). 
 
¶10. (C) PODEMOS legal adviser Carlos Goitea, who was in talks 
leading to both the Oruro version of the proposed 
Constitution and the newer compromise version announced 
October 22, told PolOff the MAS is determined to get its way, 
first by asking nicely, then by discreetly threatening family 
members, and finally by planting accusations in the press 
and/or opening public investigations.  "If they cannot get 
you to kneel, they will force you out," he said.  This recipe 
follows exactly the pattern used in 2007 to derail the 
Constitutional Tribunal, and appears to jibe with the current 
public investigations of the two Supreme Court justices and 
Attorney General Uribe. 
 
 
- - - - 
Comment 
- - - - 
 
¶11. (C) It appears that from a MAS point of view, the only 
thing better than a defunct judiciary (i.e. the 
Constitutional Tribunal) is a compliant judiciary.  To that 
end, the MAS is attempting to reconstitute the Tribunal with 
a large majority of MAS supporters and pressure the Supreme 
Court and the Attorney General to toe the MAS party line. 
Furthermore, the statements by the Vice-President and 
government ministers reflect a kind of revolutionary 
"group-think."  Any judgments that do not agree with 
revolutionary thinking are either ignored (i.e. Rada's 
dismissal of two Supreme Court deadlines to transfer 
Fernandez) or actively dismissed as belonging to a "corrupt 
past" (i.e. Garcia Linera's comments about the Supreme Court 
justices).  The imprisonment of ex-Prefect Fernandez is the 
first time in Bolivian history a Prefect has been held in a 
jail without formal charges, and his incarceration continues 
despite clear legal guidelines to the contrary.  These 
actions show how ready the MAS leadership is to act according 
to their own internal vision of what the law "should be," 
instead of hewing to democratically-approved laws that might 
otherwise interfere with their actions.  Our contacts are 
also speaking of more pressure on the National Electoral 
Court, particularly on Court President Jose Luis Exeni, to 
support the MAS in the upcoming review of the voter rolls. 
The message seems clear: in today's Bolivia, the law is 
subordinate to the revolution, and not the other way around. 
URS