Cablegate: Ortega's Judicial Coup: Legal Experts Denounce Court's

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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.

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The Ruling

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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.

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Technical, Procedural Failures

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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.

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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.

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A Premeditated Coup

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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.

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Comment

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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

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