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