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UNCLAS SECTION 01 OF 03 MANAGUA 001077 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM KDEM NU
SUBJECT: Ortega's Judicial Coup: Legal Experts Denounce Court's 
Decision 
 
REF: MANAGUA 1035 
 
¶1.  (SBU) Summary:  In the weeks after the Supreme Court's (CSJ) 
decision to allow President Daniel Ortega to run for re-election in 
2011, legal experts have denounced the judicial ruling as 
"illegal," "unconstitutional", and "invalid."  Experts describe the 
ruling as such for technical/administrative and substantive 
reasons.  Following are the main reasons the experts point to in 
describing the ruling as illegal and unconstitutional.  This is 
based on our discussions with legal experts as well public 
statements by law professors, CSJ magistrates who did not partake 
in the re-election ruling, and a communiquC) from the Nicaraguan 
Academy of Judicial and Political Science.  The academy includes 
Alejandro Serrano, who was the chief justice of Nicaragua's Supreme 
Court during the Sandinista National Liberation Front (FSLN) 
government of the 1980s.  End Summary. 
 
 
 
--------------- 
 
The Ruling 
 
--------------- 
 
 
 
¶2.  (U) As reported reftel, the Constitutional Chamber of the CSJ 
ruled on October 19 that the Constitution had contradictory clauses 
in that it states that every citizen is equal under the law, but 
prohibits the re-election of sitting presidents and limits any 
citizen to two terms as president.  The Constitution also prohibits 
the re-election of mayors.  As a result, the chamber ruled that the 
Constitution's article 147 and 178 were inapplicable to Ortega and 
the other plaintiffs (109 FSLN mayors from across Nicaragua). 
Thus, the court ordered the Supreme Electoral Council to allow 
Ortega and the FSLN mayors to run for re-election. 
 
 
 
------------------------------------- 
 
Technical, Procedural Failures 
 
------------------------------------- 
 
 
 
¶3.  (SBU) The legal experts whose analysis we have reviewed agree 
that the CSJ ruling is illegal, illicit, and invalid from the very 
beginning of the case based on two procedural shortcomings - (1) 
the composition of the chamber that took the decision was illegal 
and (2) the court should never have accepted the case.  As 
described in reftel, the judges who signed the ruling were not the 
judges with the authority to vote on the case.  Francisco Rosales, 
president of the Constitutional Chamber, convened the chamber with 
only FSLN magistrates and the alternates ("suplentes") of these 
same FSLN judges.  None of the Liberal magistrates, nor their 
alternates, were present at the court's ruling.  According to legal 
experts, the Constitution (article 163) and the CSJ's own statutes 
describe the procedures for convoking the magistrates and 
alternates, and Rosales did not comply with these legal 
requirements in convening the chamber. 
 
 
 
¶4.  (SBU) The second procedural problem with the court's ruling was 
that the case should never have been accepted by the judicial 
system.  The case began when Ortega and the other plaintiffs asked 
the Supreme Electoral Council (CSE) to rule on what they viewed as 
contradictory clauses of the Constitution.  The CSE's determination 
to the plaintiffs was that it was not the competent authority to 
rule on the matter.  In its ruling, the chamber argues that the CSE 
aggrieved the plaintiffs and therefore the court needed to step in 
to protect the rights of these particular citizens.  However, all 
the experts agree that no person was aggrieved.  The experts point 
to Nicaragua's "Ley de Amparo" (Law of Protection under the Law), 
 
MANAGUA 00001077  002.2 OF 003 
 
 
which states that "an appeal for protection under the law may be 
filed against a government official or authority which has issued 
an order presumed to violate the Constitution."  In this case, 
neither Ortega nor his fellow plaintiffs had been wronged since the 
CSE simply stated that it was not the competent authority to decide 
the matter.  Moreover, the Liberal magistrates of the Court point 
out that there is no legal redress against the Constitution itself. 
 
 
 
 
------------------- 
 
No Substance 
 
------------------ 
 
 
 
¶5.  (SBU) Aside from the technical failures of the ruling, experts 
point to the substantive failures of the sentence and characterize 
the chamber's arguments as a "distortion of equal rights."  The 
ruling states that the plaintiffs are being treated unequally and 
discriminated against by not allowing them to run for re-election. 
Since the incumbents of other offices are allowed to run for 
re-election (e.g., National Assembly deputies), the chamber argues, 
then the plaintiffs are being denied their equal rights.  However, 
experts note that this argument is false since the people are 
treated equally - i.e., everyone can be president twice.  The 
experts point out that "equals" are treated equally, so President 
Ortega may exercise the same political rights as other former 
Nicaraguan presidents.  Simply put, you can't compare apples and 
oranges. 
 
 
 
¶6.  (SBU) More important than the misinterpretation of equal 
rights, however, is that the experts (and the public in general) 
denounce the chamber's decision because it is, in itself, 
unconstitutional.  In its ruling, the CSJ states that Ortega and 
his fellow plaintiffs are being treated unequally, thus Article 147 
of the Constitution is not applicable to them.  (Note: the ruling 
states that the decision is effective "inter-parte" - i.e., only to 
those party to the case - and shall be reviewed by the full CSJ for 
applicability to the general population.)  By ruling that an 
article of the Constitution should not be enforced, all legal 
experts agree that the Constitutional Chamber reformed, altered, or 
revoked the Constitution - a power solely vested in the National 
Assembly or a constituent assembly.  To support their argument, the 
legal experts cite various articles of the Constitution, including: 
 
 
 
-          Article 129: defines the separation of power among the 
executive, legislative, electoral, and judicial branches of 
government, and stipulates that each is subordinate only to the 
powers proscribed to it by the Constitution; 
 
-          Article 138: defines the authorities vested in the 
legislature, including reforming laws and the Constitution; 
 
-          Article 182: states that the Constitution is the 
foundation of Nicaraguan law, and that no subsequent law, treaty, 
order, or judicial ruling that opposes or alters the Constitution 
shall have any validity; and 
 
-          Article 191: states the National Assembly has the 
authority to partially reform the Constitution. 
 
 
 
---------------------------- 
 
A Premeditated Coup 
 
---------------------------- 
 
MANAGUA 00001077  003 OF 003 
 
 
¶7.  (SBU) Legal experts have not publicly commented on the blatant 
political motives of the case, but the chamber's own ruling makes 
it obvious that the sentence was staged.  According to the 
Constitutional Chamber's sentence, the timeline of the case was as 
follows: 
 
 
 
-          Thursday, October 15: Ortega and 109 FSLN mayors ask the 
CSE to rule on what they consider contradictory clauses of the 
Constitution (i.e., equal rights vs. term limits for presidents and 
mayors); 
 
-          Friday, October 16: the CSE determines it is not the 
competent authority to decide the matter; Ortega and other 
plaintiffs file an appeal for protection under the law ("recurso de 
amparo") with an Appellate Court; the Appellate Court accepts the 
case and orders it referred to the Constitutional Chamber of the 
CSJ; 
 
-          Monday, October 19: 
 
o   At 12:00 in the afternoon - the Chamber accepts the case and 
orders all parties (the plaintiffs, Attorney General, and CSE) to 
present their arguments; 
 
o   12:00 through 1:00 - all parties present their arguments; 
 
o   1:00 - Rosales convoked the Chamber to meet at 4:00 to discuss 
the case; 
 
o   5:00 - the Constitutional Chamber's ruling is approved, and at 
5:30 it notifies the CSE to adhere to the decision; and 
 
o   7:00 - the CSE magistrates meet and certify the court's ruling 
allowing Ortega and FSLN mayors to run for re-election. 
 
 
 
-------------- 
 
Comment 
 
------------- 
 
 
 
¶8.  (SBU) The Constitutional Chamber's ruling to allow Ortega and 
the FSLN mayors to run for re-election is viewed by legal experts 
and the general public as illegal, illicit and invalid for both 
technical and substantive reasons.  Moreover, the uncharacteristic 
alacrity with which the court ruled on the matter further hints at 
a political motive behind this operation. 
SANDERS