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UNCLAS SECTION 01 OF 03 SANTO DOMINGO 000051 
 
SENSITIVE 
SIPDIS 
 
DEPT FOR WHA DAS DROBINSON, WHA/CAR VDEPIRRO, BPREMONT 
 
E.O. 12958: N/A 
TAGS: KJUS PGOV PHUM PREL DR
SUBJECT: DR DEBATE OVER CONSTITUTIONAL REFORM OF JUDICIARY 
 
REF: A. 2008 SDO 1608 
     ¶B. 2008 SDO 1819 
     ¶C. 2008 SDO 1959 
 
SANTO DOMI 00000051  001.3 OF 003 
 
 
¶1. (U) Summary: President Fernandez's proposed constitutional 
reforms continue to generate public comment, especially those 
reforms that touch on the judiciary. On "Judiciary Day" (07 
Jan), Supreme Court President Subero 
Isa gave a speech underscoring the need for political leaders 
to respect judicial independence and strongly critiquing the 
proposed creation of a separate constitutional court and an 
administrative tribunal. A major rule-of-law NGO, FINJUS, 
doubts that the creation of a separate constitutional body 
would contribute to the "dismemberment" of the judiciary as 
Subero Isa claims. 
FINJUS notes, though, that much depends on whether the 
constitutional organ is more a chamber within the current 
Supreme Court structure, or a completely separate entity. 
Other crucial issues, raised at a 12 Jan forum hosted by the 
Foreign Ministry, include how members will be selected, their 
number, their term of office, and whether the constitutional 
body would review the constitutionality of laws and decrees 
before  they are issued (as in France) or after (as in the 
United States) or both.  In such technical details will rest 
the balance of power, if/when some reforms are made. End 
Summary. 
 
Background 
---------- 
 
¶2. (U) On September 18, 2008, President Leonel Fernandez 
presented sweeping constitutional reforms to the Dominican 
Congress (ref A).  The reform process has not moved as 
swiftly has he apparently wanted, due in part to the 
intervening holidays and financial crisis, as well as some 
muscle-flexing by Congress.  One of the key reforms proposed 
is the creation of a "sala constitucional." The term "sala" 
has led to confusion: as written, the proposal suggests a 
separate tribunal, but the word "sala" usually denotes a 
chamber within a court.  This matter has become the subject 
of great debate. 
 
President vs. President 
----------------------- 
 
¶3. (SBU) President Fernandez's vague constitutional court 
idea has received push-back from the well-respected President 
of the Supreme Court, Jorge Subero Isa.  As previously 
reported (ref B), Subero Isa has questioned the need for, 
efficacy and cost of, creating both a separate constitutional 
and an administrative tribunal.  He also told Emboffs of his 
strong belief that, were a constitutional court to be 
created, its members must be professional judges and it must 
not be able to overturn prior decisions of  the Supreme 
Court, which currently hears constitutional and all other 
types of cases.  He indicated to USAIDoffs that he would 
resign if the reforms were passed as written. 
 
¶4. (U) Subero Isa's highly public Judiciary Day speech 
included two key themes: The need to avoid a separate 
constitutional court that might "dismember" and politicize 
the judiciary, and the need for commitment on the part of 
"political forces" to the concept of judicial independence. 
On this last point, he argued,  "Nobody disputes that 
judicial independence is one of democracy's fundamental 
values  (...) (yet) nowhere in the world does judicial 
independence exist if political forces do not, at some point, 
make (such) a commitment." 
 
¶5. (U) He also indirectly responded to the uproar over the 
Supreme Court's recent Sun Land decision (ref C), by pointing 
to the ability of the United States to produce, and with time 
overcome, bad Supreme Court decisions.  He cited specific 
decisions, including Dred Scott (regarding slavery) and 
Koremastu (regarding internment of Japanese-Americans), as 
examples of judicial errors later overruled or disavowed. 
 
Other Voices 
------------ 
 
¶6. (U) The Vice President of FINJUS, an NGO supporting the 
rule of law that receives significant funds from USAID, 
disagreed with Subero Isa by saying that specialized 
constitutional courts function in "many countries" without 
"dismembering" the judiciary.  At the same time, the FINJUS 
VP indicated that the government must clarify just what type 
of institution it is seeking to create - a chamber within the 
current Supreme Court or a separate tribunal.  Even if a 
 
SANTO DOMI 00000051  002 OF 003 
 
 
separate court is created, opined FINJUS, there would not 
necessarily be the "collision of trains" Subero Isa also said 
he fears. 
 
¶7. (U) However, another important NGO, Participacion 
Ciudadana, ageed with Subero Isa's concern that two separate 
institutions would create conflict.  Moreover, the concept of 
a "sala constitucional" as currently envisaged "does not 
correspond to an independent (judicial) organ," the NGO said. 
 
¶8. (U) Just what might constitute an independent 
constitutional court was the theme of a discussion - at the 
Foreign Ministry's Diplomatic School on January 12 - by 
former French Senator, Constitutional Court member, Justice 
Minister, and law professor Robert Badinter.  First, Badinter 
cogently set forth rationales for constitutional review, and 
the various forms (especially American and French) by which 
this can be done. Then, he explained that judges engaging in 
constitutional review must be protected by long (but not 
lifetime), un-renewable tenures.  Citing the U.S. federal 
model, he said such judges must also be selected through a 
process involving both the legislative and executive branches 
to ensure that checks and balances exist.  He implied, but 
did not clearly state, that members of a constitutional court 
should also be judges or otherwise have the needed expertise. 
 
¶9. (U) While gently pleading for the French constitutional 
court model, he recognized that a main problem with its "a 
priori" review of constitutionality (i.e., before the 
legislation or decree is finalized) is that unforeseen 
onstitutional issues may arise in the application of the law. 
 Thus, Badinter is in favor of having both "a priori" 
constitutional review and "a posteriori" review - i.e., 
constitutional review arising from cases and controversies 
(as in the U.S.).  He cited the European Court of Human 
Rights system as a model in this regard. 
 
¶10. (U) With respect to a priori constitutional review, 
Badinter noted that French law allows any small group of 
congressmen to seek constitutional review of draft 
legislation, not just France's President or the two leaders 
of the legislature's two chambers. In so doing, he raised an 
important detail, given the recent Sun Land decision by the 
Supreme Court, which indicated that only the Presidents of 
the Dominican Senate and Chamber of Deputies had standing to 
sue for violation of the constitution, in that case. 
 
¶11. (SBU) Note: The timing of Badinter's invitation to speak 
at the Foreign Ministry's school for diplomats may not have 
been an accident - he clearly favors a European-style 
"constitutional court" - but he also suggested safeguards 
that Dominicans have perhaps not yet considered:  advice and 
consent in the selection of constitutional court members, 
non-renewable tenure, good salaries, "before" and "after" 
constitutional review, and respect - by other branches of 
government - for the finality of constitutional decisions. 
End Note. 
 
Comment 
------- 
 
¶12. (SBU) The debate over the scope and form of 
constitutional reforms affecting the judiciary is heating up 
and Post is follow the issue with great interest, 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.  We are concerned that, on an 
issue of national importance such as this, Fernandez 
apparently failed to consult adequately with Subero Isa 
before submitting the proposed amendments.  That concern is 
compounded by the fact that we have found the views of Subero 
Isa, as well as the head of Participacion Ciudadana, to be 
frequently on the mark in the past. 
 
¶13. (SBU) Many details have yet to be worked out, but those 
details - regarding institutional structures, selection of 
judges, how constitutional review may be sought, etc. - will 
be crucial to the long-term effects of the constitutional 
changes. 
 
¶14. (SBU) Finally, this debate takes place in the context, as 
Participacion Ciudadana puts it, of three "scandals" 
regarding judicial matters: The Sun Land decision, the 
questionable holiday bonuses for the new Court of Accounts 
Camara de Cuentas), and the President's pardoning of persons 
found guilty in the Baninter and Renove fraud and corruption 
cases (ref C).  With the respect, power and credibility of 
the judiciary already so much in play, it is to be hoped that 
 
SANTO DOMI 00000051  003.3 OF 003 
 
 
Dominican political forces will take the concept of judicial 
independence and the details of judiciary-related 
constitutional reforms very seriously. 
FANNIN