REFERENDUM DEVELOPMENTS: QUESTIONS UPON QUESTIONS

C O N F I D E N T I A L CARACAS 002036 SIPDIS NSC FOR CBARTON USCINCSO ALSO FOR POLAD STATE PASS USAID FOR DCHA/OTI E.O. 12958: DECL: 05/26/2014 TAGS: PGOV PHUM KDEM VE SUBJECT: REFERENDUM DEVELOPMENTS: QUESTIONS UPON QUESTIONS Classified By: Mark Wells, Acting Political Counselor, for Reasons 1.4(b) and (d). -------------- Summary -------------- ¶1. (C) A Supreme Court (TSJ) decision on June 8 determined that a recalled Chavez may run for president in 2006, but left unclear whether he may participate in presidential election 30 days after the recall vote. The National Electoral Council (CNE) on June 15 approved the question for the recall referendum against President Hugo Chavez planned for August 15. The question does not use the constitutional language of a "recall," but rather asks voters whether they agree to invalidate Chavez's "legitimate and democratic" mandate. Despite the ambiguities of the TSJ's decision, we assume Chavez will indeed be allowed to run in the subsequent elections if recalled. End summary. -------------- TSJ Lets Chavez Run Again, Maybe SIPDIS -------------- ¶2. (U) The Constitutional Chamber of the Venezuelan Supreme Court (TSJ) issued a decision June 15 that said a recalled Chavez may run in the 2006 presidential elections, but left unclear whether he would be permitted to run in the elections to be held 30 days after the August 15 referendum in the event he is recalled. The case arose from a constitutional provision (art. 198) that prohibits National Assembly deputies who are recalled from running for the next full term. The decision, which was approved three-to-two by the pro-Chavez majority of the Constitutional Chamber, said this prohibition did not apply to the President. Dissenting opinions from two opposition magistrates criticized the decision for being silent on the pertinent question of whether Chavez can be re-elected just after being recalled. The dissenting justices argued that to permit a recalled official to run immediately for the same office effectively nullified the referendum process. ¶3. (U) Constitutional lawyers offered an array of interpretations. Tulio Alvarez said it was clear the Court had said Chavez would be "definitively separated" from his office for his current term. Alvarez concluded from this that Chavez may not run again. Esteban Gerbasi, the lawyer who filed the original petition with the TSJ and member of the opposition party Un Solo Pueblo, said the decision requires clarification, which he said he intends to request. Academic Rafael Chavero told reporters the Constitutional Chamber could easily have clarified the decision with "two more lines," and had apparently decided not to resolve the issue. -------------- CNE Approves The Question -------------- ¶4. (U) The National Electoral Council (CNE) board approved June 15 the formulation of the question to be asked for the August 15 recall referendum against President Hugo Chavez. The question was approved three-to-two by the pro-Chavez majority of the CNE board. Although the 1999 Constitution uses the term "revoke" when referring to the referendum, the CNE opted instead to ask: "Are you in agreement with invalidating the popular mandate granted to Citizen Hugo Rafael Chavez Frias via democratic and legitimate elections as the President of the Bolivarian Republic of Venezuela for the current presidential term? Option 1: No, Option 2: Yes." Rodriguez told reporters the board chose a question that was sufficiently clear, that could be answered with a "yes" or "no," and "had the effect of revoking the mandate" of the official. ¶5. (U) Reaction to the question was subdued. Coordinadora Democratica (CD) negotiator Felipe Mujica said the question was "badly formulated" but left the opposition with the "yes" option it has used as a symbol for more than a year. Mujica said the question was not important, noting that "Venezuelans are not idiots" and would understand how to vote. Fellow opposition negotiator Alberto Quiros Corradi called the CNE's phrasing "childish" and denied it would have any effect on the process. -------------- CNE Releases Timeline -------------- ¶6. (U) The CNE released on June 16 the timeline for the presidential referendum. The timeline sets the public campaign period for July 16 - August 14, though both sides arguably are already engaged in politicking. The electoral registry will be closed on July 10. International observers will be registered August 11-13, according to the timeline. -------------- Comment -------------- ¶7. (C) The anti-Chavez legal experts are putting their best spin on the TSJ decision by saying that a recalled Chavez cannot run until 2006. No matter how compelling logic and the legal arguments may be, however, there has been a general assumption in the political arena that Chavez would, in fact, be able to run again immediately if recalled. TSJ President Ivan Rincon made that clear to the Ambassador in late 2003. Not to permit Chavez to run again would practically guarantee a win by the opposition candidate. It is unlikely Chavez would allow a Court decision to bench him for (at least) two years. And, in light of Chavez's control over the Constitutional Chamber, any clarifications the TSJ may be compelled to make will no doubt tip to his favor. The only plausible scenario in which Chavez does not run after a referendum defeat would be if the referendum were to produce an overwhelming rejection of him by the Venezuelan people -- a political rather than a legal defeat. SHAPIRO NNNN 2004CARACA02036 - CONFIDENTIAL