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O R 082113Z JAN 10
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UNCLAS SANTO DOMINGO 000009 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV KJUS KDEM PHUM DR
SUBJECT: Constitutional Reform Process - The Judiciary Altered 
 
REF: A) 08 SDO 1608, B) SDO 51, C) SDO 315, D) 08SDO1959 
 
SUMMARY 
 
 
 
¶1.  (U)   The GODR's constitutional reform process, ongoing now for 
more than a year (reftel A) reveals much about the relative powers 
of various actors including the President, political parties, the 
judiciary, civil society, the Catholic Church and Dominicans in 
general.  The independence and powers of the judiciary and organs 
connected to the rule of law have been the subject of particularly 
vigorous discussions (reftels B-C), and the new constitution to be 
promulgated on 01/26/10, contains reforms that arguably could 
strengthen or weaken the independence and authority of the Judicial 
Branch.   The major innovations include the creation of a new 
Constitutional Tribunal, increased powers to name and review 
high-level judges for the politicized National Judicial Council, 
expansion of the President's authority to name Assistant 
Attorney-Generals, and a constitutional mandate for the Legal 
Assistance program and the Public Defender's Office.  Civil society 
organizations, as well as the Embassy, will closely monitor the 
implementation of the new constitution.  End Summary. 
 
 
 
 CONSTITUTIONAL TRIBUNAL 
 
 
 
¶2.  (SBU) The main change to the judicial system is the creation of 
a Constitutional Tribunal.   The Tribunal was vociferously opposed 
by Supreme Court Chief Justice Jorge Subero Isa, who argued it will 
undermine judicial independence, create judicial chaos by opening 
up for review all prior Supreme Court decisions on constitutional 
matters, and cause trial delays as defendants raise constitutional 
objections that could result in the suspension of trials until 
Constitutional Tribunal rulings can be obtained.  The two major 
civil society organizations, Participacion Ciudadana (PC) and the 
Institutionality and Justice Foundation (FINJUS), however, both 
supported the establishment of a Constitutional Tribunal, holding 
that it would create an independent arbiter of the constitution and 
speed up consideration of constitutional issues, noting that 
similar institutions are prevalent in European and Latin American 
countries.  (COMMENT:  PC and FINJUS directors have also hinted to 
Emboffs that their support for the Constitutional Tribunal stems 
from their loss of confidence in the Supreme Court's freedom from 
political influence, as a result of that court's decision in the 
Sunland case (Ref D).  In that ruling, the high court held that 
only the Presidents of the Senate and Chamber of Deputies had 
standing to challenge the government's entering into a commercial 
loan agreement without congressional authorization.  Since the 
heads of both houses of Congress were members of the ruling 
Dominican Liberation Party (PLD), such objections were, of course, 
never made.  END COMMENT.) 
 
 
 
 ¶3. (U)  The Constitutional Tribunal is to  be composed of 13 
judges who will review the constitutionality of laws and decrees 
upon the request of the President, one third of the Senate or 
Chamber of Deputies, or "of whatever person has a legitimate and 
legally protected interest," per Article 185.  This phrase 
enshrines the Supreme Court ruling in the Sunland case that found 
that plaintiffs lacked standing.   Some observers - particularly 
those who objected to the Sunland decision - feel this language is 
too restrictive, but whether it blocks or permits ordinary citizens 
or civil society organizations from suing to protect their rights 
has yet to be seen.  Interestingly, the "Public Defender" 
(Ombudsman) is not listed as one who can bring constitutional 
challenges under Article 185, which as a practical matter undercuts 
the ombudsman's function to "safeguard fundamental rights [and 
those] established in this Constitution," per Article 191. 
 
 
 
¶4. (U) Potential judges for the Constitutional Tribunal must meet 
 
the criteria for being a Supreme Court justice and both sets of 
judges will be selected by the National Judicial Council (CNM - see 
paragraphs 8-11, below, for details).   The Tribunal's judges will 
serve non-renewable mandates for nine years, and the composition of 
the court will be "gradually renewed every three years" (i.e., 
about one-fourth of the Tribunal will be changed every three 
years). 
 
 
 
¶5. (U) The Constitutional Tribunal will also have the power to 
review the constitutionality of treaties before they are ratified, 
as well as to resolve conflicts between "public powers" upon the 
request of one branch of government.  Ordinary laws may 
subsequently determine what other kinds of cases the Tribunal may 
hear (per Article 185(4)).  Article 186 provides that dissenting 
judges may have "their reasoning" recognized ("given value") in 
decisions taken by the Constitutional Tribunal.   (COMMENT:  This 
suggests that dissenting opinions will be published; in the French 
civil law system - from which the Dominican is derived - dissenting 
opinions have traditionally not/not been allowed or publicized. 
END COMMENT) 
 
 
 
¶6.  (U)  Art. 184 provides that Tribunal decisions will constitute 
precedents that must be followed by other courts.  The current 
constitution does not contain a similar provision with respect to 
Supreme Court decisions and, as a result, such decisions do not 
constitute binding precedents for lower courts on constitutional 
issues.  (COMMENT:  This reform promises to be an important 
development.  The DR has a civil law system, in which judicial 
decisions are derived from interpretation of statutes, not prior 
case law.  The constitutional mandate that Constitutional Tribunal 
rulings shall serve as precedent adds the common law system's 
consideration of case law, which should help standardize the 
application of constitutional rights in lower court judicial 
decisions.  END COMMENT.) 
 
 
 
¶7.  (U)  Art. 277 provides that the Constitutional Tribunal cannot 
review final decisions of the Supreme Court that were handed down 
before the Tribunal's establishment.  This measure was included in 
response to Supreme Court Chief Justice Subero's concern of a 
"judicial train wreck" should the Tribunal be authorized to 
reconsider prior Supreme Court Rulings.  (COMMENT:  Apparently the 
way this will work is that the Tribunal may alter the substance of 
prior Supreme Court rulings on constitutional questions, but these 
new constitutional interpretations will not apply to those cases 
previously decided by the Supreme Court, but only to those cases 
that come up for decision after the Tribunal's creation.  END 
COMMENT). 
 
 
 
THE NATIONAL JUDICIAL COUNCIL 
 
 
 
¶8. (U)  The new constitution significantly expands the powers of 
the National Judicial Council (CNM), while also reinforcing the 
political character of its composition.   Under the existing 
Constitution, the CNM's role is limited to selecting Supreme Court 
Judges and naming the Chief Justice and his two deputies.  Once the 
reforms are promulgated, however, pursuant to Art. 179, the CNM 
will also select the 13 Constitutional Tribunal judges and the 
three-to-five Superior Electoral Tribunal members, as well as 
review the performance of Supreme Court judges every seven years to 
determine whether they should be reappointed for an additional 
seven year period.  In addition, the new constitution establishes 
an age limit of 75 for Supreme Court Justices (Article 151(2)), 
which means that the CNM will pick four new Justices in early 2010, 
and another two before the end of the year (in total, six of the 
current 16 Justices will be replaced this year). 
 
¶9. (U)  The new constitution will also alter the composition of the 
CNM.  Under the existing constitution, it consists of seven 
members:  the President, the presidents of the Senate and Chamber 
of Deputies, one additional senator and one additional Deputy who 
are not members of the same party as the presidents of each 
chamber,  the Supreme Court Chief Justice and another Justice. 
Currently, the ruling PLD party controls the CNM, as the President 
and the heads of both congressional chambers are PLD members, while 
the two other legislators are members of the PLD's Social Christian 
Reformist Party (PRSC) allies.  Consequently, the revision of the 
CNM's membership became a major political issue, as the opposition 
Revolutionary Dominican Party (PRD), in large part conditioned its 
acceptance of the new constitution on a provision stating that the 
additional senator and deputy come from the second largest party in 
each chamber, in other words from the PRD.  This was incorporated 
in Article 178 over the opposition of the PRSC. 
 
 
 
¶10. (U) Article 178 also provides for the addition of the Attorney 
General (AG) to the CNM, increasing the membership of that body to 
eight.  NGO Participacion Ciudadana has confidently asserted that 
the inclusion of the AG was the PLD's price for agreeing to give 
the PRD two seats on the Council, as this will continue to 
guarantee the ruling party a blocking plurality of four members 
(the AG is a PLD stalwart), rounded out by the two Supreme Court 
justices and two PRD legislators . 
 
 
 
¶11. (SBU) COMMENT:  The CNM is and will continue to be a body 
overwhelmingly dominated by politicians.  As a result, there is 
concern that it will prioritize political considerations over 
judicial qualifications in selecting members of the Constitutional 
Tribunal, Supreme Court and Supreme Electoral Tribunal, as well as 
in reviewing the performance of Supreme Court justices.  This 
concern is heightened by the absence in the new constitution of 
detailed criteria for making these decisions.  President 
Fernandez's original constitutional reform proposal posited 
appointing a representative of civil society and three appellate 
court judges to the CNM, but this idea did not prosper.  By way of 
comparison, Peru's equivalent of the CNM is non-politicized, as it 
consists of  a Supreme Court justice, a senior prosecutor, a public 
law school rector, a private law school rector, a bar association 
representative and two representatives from other professional 
organizations, and criteria for its work are established.  END 
COMMENT. 
 
 
 
PUBLIC MINISTRY APPOINTMENTS 
 
 
 
¶12. (U)  The current constitution is silent on how Assistant 
Attorney Generals (AAG) are to be named, although existing 
legislation provides that all are to be named by the President with 
advice from the AG.  When the text of the new Constitution passed 
its first reading in August 2009, the President's discretion to 
name AAG's was reduced to one-fourth, but in the final approved 
version (Article 171), the President designates half.  (COMMENT: 
The limitation on the President's authority to name AAGs is 
expected to ensure that at least half of future AAGs come from the 
ranks of career prosecutors.  END COMMENT) 
 
 
 
OMBUDSMAN 
 
 
 
¶13. (U) Article 176 provides constitutional recognition of the 
"administrative and functional autonomy" of the Legal Assistance 
services program.  The chief Public Defender (or Ombudsman), and 
Assistant Public Defenders will be selected by the Senate from a 
short list presented by the Chamber of Deputies, under Article 190. 
 
Although the human rights ombudsman position has gone unfilled for 
years, the Public Defense system, established in 2003, has grown to 
include over 300 public defenders, judicial investigators, social 
workers and administrative personnel.   It operates in the main 
judicial districts of the country and the quality of the Public 
Defenders' work has been recognized within and outside the judicial 
sector.  (COMMENT:  The requirement under Article 177 that public 
defenders also "protect the rights of the victim" could create 
conflicts-of-interest and/or complicate the role of public 
defenders.   END COMMENT) 
 
 
 
NATIONAL JUDICIAL SCHOOL 
 
 
 
¶14. (U) The National Judicial School (ENJ) is also mentioned in the 
new constitution, under Article 150.  This institution has been 
functioning for some 10 years and has established a reputation as a 
rather cutting-edge institution for training would-be judges and 
providing continuing legal education to sitting judges. 
Currently, a lower-court judge moves "up" as vacancies emerge, 
while new magistrates leaving the ENJ are sent to fill the lower 
ranks of the judiciary.  Article 150 of the new Constitution 
provides that anyone wishing to be a judge must pass a competitive 
exam to enter the ENJ and then satisfactorily complete the ENJ's 
program, with the exception of appointees to the Supreme Court (who 
can be veteran attorneys and/or law professors). 
 
 
 
CIVIL SOCIETY'S ROLE 
 
 
 
¶15. (U)  Civil society organizations, particularly the 
USAID-supported Participacion Ciudadana and FINJUS, have been 
involved in the debate over the new constitution from the 
beginning.  FINJUS published a study in the early months of 2009 
containing numerous observations and recommendations, while 
Participacion Ciudadana spoke out, particularly when it seemed that 
certain "diffuse" rights were endangered (such as public access to 
the beaches).   More recently, in December, FINJUS hosted a 
workshop focused on the new, stronger National Judicial Council 
(CNM).  Panelists at the meeting agreed that civil society must 
carefully monitor and try to participate in the process by which 
the CNM selects and evaluates judges to help ensure that 
professional, not political standards are applied. 
 
 
 
¶16. (U) The panelists at this workshop cautioned that detailed 
criteria governing the CNM's selection and review of judges are 
lacking .  For example, Art. 181 addresses the review of Supreme 
Court justices' performance, but only states that the National 
Judicial Council may, "decide the pertinence of separating a 
(Supreme Court) judge from his duty," although such a decision must 
be "based on the grounds of the law that (will) regulate(s)  this 
matter."   Since the new constitution defers this matter to 
subsequent legislation, the FINJUS panelists expressed their 
determination to stay involved in the process of drafting and 
enacting such legislation to lobby for proper criteria. 
 
 
 
COMMENT 
 
 
 
¶17. (SBU)  It appears that the new constitution's impact on the 
judicial system will be positive.  The establishment of a 
Constitutional Tribunal could advance the development of 
constitutional rights and of a body of binding constitutional case 
law in the DR.  The expansion of the National Judicial Council's 
authority is not in and of itself worrisome, but the continued 
political character of three-quarters of its membership certainly 
 
is.  Civil society's continued engagement in the debate and passage 
of implementing legislation is essential to ensure that purely 
political considerations are not the only voices heard.  Embassy 
will continue to monitor developments closely.  END COMMENT. 
Lambert