THE BOLIVARIAN PLAYBOOK: WRITING A CONSTITUTION

C O N F I D E N T I A L SECTION 01 OF 03 CARACAS 002693

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SUBJECT: THE BOLIVARIAN PLAYBOOK: WRITING A CONSTITUTION

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B. LA PAZ 001283

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Classified By: POLITICAL COUNSELOR ROBERT DOWNES,
FOR REASON 1.4 (D)

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Summary
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1. (C) Post offers this look at President Chavez'
Constituent Assembly in order to provide insight to other
governments in the region that may follow a similar path
(reftels). Chavez convoked in 1999 a Constituent Assembly
that, in the end, provided Chavez with a constitution that
abetted his attempts to centralize political authority in his
hands and was ambiguous enough to provide him legal
justification for his questionable tactics in implementing
his Bolivarian revolution. The Constituent Assembly's modus
operandi provided early insight into a government that has
gradually but decisively moved in an authoritarian direction.
Chavez ensured the National Constituent Assembly (ANC) was
stacked with his supporters, gave it supra-constitutional
power, and used the body to appoint close allies to
supposedly unbiased government bodies. The Constituent
Assembly provided Chavez with an early and ample opportunity
to tighten his grip over Venezuelan political life, most
immediately by usurping the powers of the legislative and
judicial branches, and set the stage for a systematic erosion
of the country's democratic institutions. End Summary.

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An Election Promise Fulfilled
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2. (C) Key to implementing Chavez' 1998 campaign promise to
sweep aside the existing political order and "re-structure
and re-legitimatize the Venezuelan state" was writing a new
constitution. His chosen mechanism to do so was a
Constituent Assembly. After winning the election in December
1998 with well over 50 percent of the vote, Chavez moved
swiftly to lay the groundwork for the Constituent Assembly.
Within his first few weeks in office, he issued a decree
calling for a referendum on his proposal, ordered the
National Electoral Council (CNE) to begin referendum
preparations, and won the Supreme Court's approval for the
referendum. The referendum on the Constituent Assembly was
held on April 25, 1999, and voters overwhelmingly agreed to
Chavez' proposed National Constituent Assembly (ANC),as well
as his proposed means of convoking it, giving the Bolivarian
leader the required mandate to proceed with his plans on his
terms.

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Ensuring a Sympathetic ANC
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3. (C) Chavez' ability to stack the ANC in his favor was
critical to his success in obtaining a constitution to his
liking. With the referendum behind him, Chavez quickly
turned his focus to the election--held on July 25, 1999--to
select the 131 ANC members, which included 24 national seats,
104 regional seats, and three representatives from indigenous
communities. In a harbinger of things to come, Chavez took
liberties with both the candidate selection and campaign
process. Chavez hand-picked key candidates and then
personally campaigned for them, despite a CNE ruling that
high public officials could not do so. He was later
sanctioned for ignoring the ruling, but his support was
likely determinant in the election of his favored candidates.



4. (C) Chavez' efforts paid off, and his candidates won a
landslide victory in the July 1999 elections, winning 119 of
the 131 seats, plus the three seats reserved for indigenous
representatives. Two opposition constitutional lawyers and
former ANC members, Tulio Alvarez and Hermann Escarra, told
poloff in separate, recent conversations that the vast
pro-government majority discouraged debate and compromise
and, for all practical purposes, gave Chavez free rein to

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draft his version of a Venezuelan constitution.

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A Supra-Constitutional Body
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5. (C) The Supreme Court ruled that the ANC did not have
supra-constitutional authority, for example to dissolve and
create branches of government. Emboldened by his referendum
victory, Chavez ignored this decision, citing his popular
mandate for change. The supra-constitutional authority
abetted Chavez' efforts to exert control over other branches
of government and counteract the opposition-controlled
congress. Chavez demonstrated early on his tendency to
propose revolutionary, destructive policies, such as closing
branches of government, and then tactically retreating in the
face of truculent criticism, only to once again move forward
regardless, claiming he was compromising. He also moved to
undermine Venezuelan institutions and used what has become a
tried and true "revolutionary" technique--creating parallel
structures to subvert existing ones--in order to sidestep his
opponents, work around legal restrictions, and purge the
judiciary.


6. (C) Chavez focused his efforts on undermining the
judiciary and congress. Tapping into general public
sentiment that the judiciary was corrupt and broken, Chavez
called on the ANC to declare a "judicial emergency." At
first he proposed the ANC shut down the judiciary and assume
its functions, but then settled on the less controversial but
still effective (from his point of view) establishment of a
Judicial Emergency Committee to overhaul the court system and
root out "corrupt" judges. This Emergency Committee, working
parallel to another already established judicial committee,
summarily fired judges without providing any measure of due
process.


7. (C) The ANC also issued a legislative "emergency decree"
in August 1999, temporarily suspending congress and giving
the ANC most of its duties. The decision drew swift
criticism from opposition sectors, and, as with the
judiciary, the ANC and congress eventually came to a
"compromise" that ended up serving Chavez' interests. In
September 1999 a "co-habitation" agreement was announced that
nullified the emergency decree and left the business of
legislating to the legislature. The two bodies agreed to
"self-regulation," committing to act without interfering in
each others' activities. Opinions on how this arrangement
functioned vary. Alvarez told poloff that the ANC
neutralized congress despite the co-habitiation agreement.
Escarra, on the other hand, argued that the congress did
continue to conduct at least quasi-regular business under the
arrangement. Former ANC member Vladimir Villegas, meanwhile,
claimed that that ANC had supra-constitutional authority and
used it.

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The Final Vote
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8. (C) Chavez held another referendum on December 15, 1999
to approve the new Constitution. The stakes were high for
Chavez, politicians serving in his ANC coalition, and the
opposition, all of whom were positioning themselves for the
2000 "mega-elections," in which the president, legislature,
and regional leaders would be elected under the new
constitution. In the run-up to the December 15 vote, Chavez
campaigned aggressively for the "yes" vote, while six
non-chavista members of the ANC, as well as business and
opposition sectors, declared themselves in favor of the "no"
vote. Nevertheless, Chavez' strong campaigning, the
opposition's disarray, and the public's sense that they were
finally being represented in the political process helped him
win the "yes" vote. With abstention nearing 54 percent, the
constitution was approved on December 15, 1999 with 71
percent of the vote.

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ANC Manages Transition
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9. (C) The transition between the abrogation of the 1961
constitution in January 2000 and the "mega-elections" further
facilitated Chavez' consolidation of authority. The ANC
unilaterally appointed key officials of supposedly neutral
government institutions, setting the stage for what has
become a systematic erosion of institutional independence and
electoral transparency in the so-called "Fifth Republic."
Chavez and his then-mentor, ANC President Luis Miquilena,
announced immediately following the referendum victory that
the ANC would assume by means of a "constituent act" full
responsibility for the legislative function and supervision
of the judiciary, claiming that the existing legislative and
judicial bodies had no basis for existence following
termination of the 1961 constitution.


10. (C) On December 22, the ANC by decree passed
transitional measures allowing the ANC to select a
"congresillo," appoint new members to the Supreme Court, and
name the Attorney General, Comptroller General, and Defender
of the People with little to no consultation. All twenty
additional Supreme Court justices were later confirmed by the
new, post-mega-election government-controlled National
Assembly. The ANC also appointed a new five member CNE board
with a pro-Chavez majority, which then oversaw the 2000
"mega-elections." Opponents to the move claimed it broke
legal, constitutional, and political norms.

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Comment
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11. (C) Post offers these reflections for other missions in
the region in countries that may be following the Chavez
path. The Constituent Assembly's modus operandi, as well as
Chavez' management of it, provided early insight into a
government that has moved in an authoritarian direction.
While Chavez won initial legal approval for the Assembly
process and claimed he was representing the will of the
Venezuelan people, he also ensured the ANC was stacked with
his supporters, gave it supra-constitutional power, and used
the body to appoint close allies to supposedly unbiased
government bodies. The series of referendums and elections
related to the ANC process, as well as the "mega-elections"
held following the new constitution's implementation, also
served to further bankrupt and fracture Chavez' opposition.
The Constituent Assembly provided Chavez with an early and
ample opportunity to tighten his grip over Venezuelan
political life and set the stage for a systematic erosion of
the country's democratic institutions. The 1999 Constitution
heavily concentrates power in the executive even by Latin
American standards. It contains loopholes that allow Chavez
to circumvent agencies and procedures that he would not
otherwise be able to influence. Despite these advantages,
Chavez has still occasionally ignored the constitution when
he sees fit, and other provisions, such as a balance of power
between the three branches of government, are obviated when
these branches are stacked with Chavez supporters.


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