817.0131/8: Telegram
The Minister in Nicaragua (Hanna) to the Secretary of State
[Received 8:52 p.m.]
76. Department’s 58, June 27, 2 p.m. After a prolonged search I met President Moncada late yesterday in the Sierras where he was [Page 641] inspecting public works. He strongly maintained his opinion that the Nicaraguan Congress would have to reject the amendments to the electoral law because it must ask the Supreme Court for its advice and because that advice would be unfavorable, and that therefore the amendments should be made by Executive decree. He said he had informally consulted leading members of the Supreme Court including Dr. Morales, its President, and that they maintained that the Court could not escape giving an unfavorable report if consulted by Congress but that it could and would render a favorable opinion if consulted with respect to making the amendments by Executive decree. He said there is no inconsistency in this attitude of the members of the Court and that it is also consistent with the Court’s approval of the appointment of Captain Johnson because the Constitution does not say that the President of the National Board of Elections must be a Nicaraguan. He insisted with emphasis that a situation even more annoying and complicated than that which arose in 1928 would be created if the amendments were submitted to Congress and that his only desire is to avoid such a situation and insure free and honest elections. He does not anticipate directing [direct?] strong or organized opposition to the procedure he has proposed and does not think it will be seriously challenged on Constitutional grounds. He said his proposed action will be the best guarantee he can give to the Conservative Party and that he will be following a precedent established by a Conservative administration.
The Minister of Fomento who is a lawyer was present and he supported President Moncada especially on the legal points involved. At the conclusion of our conference I requested the President to give me a memorandum of the principal points he desired to have brought to your attention and he and the Minister of Fomento immediately drafted the following memorandum:
“By the Constitution, the President of the Republic is charged to enforce the laws and especially to guarantee the right of free suffrage, and may prescribe the measures which he deems necessary for this purpose. With reference to elections of supreme authorities such as Senators and Deputies the recognition and qualification of the members elected and the final canvass of the votes pertain to the faculty of the respective legislative chambers and therefore, after the completion of the electoral procedure, everything is brought to the attention of the Congress through the appropriate official.
With respect to the point under consideration, the Supreme Court of Justice may take cognizance, by virtue of any direct charge of unconstitutionality, of any law which is enacted; and in the case of a bill sent to Congress which is in conflict with the Constitution or any law of the land, it is also a Constitutional duty to request an opinion of the Supreme Court.
[Page 642]Consequently, the Executive, in submitting to Congress a bill in the form under discussion, would abrogate the very rights which the Constitution has granted to him and would expose the initiative to rejection by the Congress.
In case the Executive should decree the electoral procedure, it is believed that it would run no risk of being rejected because it is the executive power that decrees laws of guarantee.
It is also true that Congress in renouncing the right of canvass and other faculties which it possesses in connection with elections of supreme authorities would also abrogate the corresponding constitutional provisions.
For the reasons thus stated the President thinks that it is better to follow the precedent established for the cooperation of General McCoy. The Supreme Court of Justice is in accord with the President in this opinion.”
The President told me this statement was merely to supplement my report of our conversation. He added that, in expressing his views, he takes it for granted that the proposed amendments which he has not yet seen will fix a procedure along the same general lines as that followed by General McCoy. I told him I would deliver the draft amendments to him as soon as he returned to Managua. I did not tell the President that the amendments do not deprive Congress of its right to make the final canvass conferred by article 91 of the unamended law partly because he said there are other Constitutional objections and partly to leave the Department free to point this out later if the Department sees fit to insist upon its view. The President stressed his objection to what he conceives an abrogation of his powers. He said he is personally pledged to guarantee a supervision and does not want to impair his responsibility for its success.
I am inclined to think President Moncada’s present attitude is based on the advice of members of the Supreme Court probably initiated by Dr. Morales. I think the President is sincere in his views but I suspect that the initiators of the idea, whoever they may be, have some well-concealed motive. When I asked President Moncada if the validity of the elections could be challenged subsequent thereto by the Nicaraguan Congress on the grounds of unconstitutionality he replied in the negative and the Minister of Fomento concurred. I doubt if the President’s views can be changed in opposition to the advice he is receiving from the Supreme Court but even if he should ultimately agree to submit the amendments to Congress it probably would result in his being subject to pressure to disclaim responsibility for future developments. I believe we will be in a stronger position to meet developments if the Government is fully responsible for the choice of methods in this particular matter.