US embassy cable - 04CARACAS908

C O N F I D E N T I A L  CARACAS 000908 
 
SIPDIS 
 
 
NSC FOR TSHANNON AND CBARTON 
USCINSO ALSO FOR POLAD 
STATE PASS USAID FOR DCHA/OTI 
 
E.O. 12958: DECL: 03/16/2014 
TAGS: PGOV, PHUM, KDEM, VE 
SUBJECT: CHESS GAME IN THE SUPREME COURT OF JUSTICE 
 
REF: CARACAS 898 
 
Classified By: Political Counselor Abelardo A. Arias for Reason 1.4(d) 
 
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SUMMARY: 
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1. (C) Venezuela Supreme Court's (TSJ) Constitutional Chamber 
declared March 11 that it alone is the appropriate forum to 
hear cases regarding the National Electoral Council (CNE) and 
the proposed presidential recall referendum.  Constitutional 
Chamber president Ivan Rincon told the Ambassador March 12 
that such cases had to be removed from the Electoral Chamber 
to save the country and to take the decision out of "the 
opposition's Chamber."  News of the Constitutional Chamber's 
decision came shortly after the TSJ Electoral Chamber 
rejected pro-Chavez and opposition motions to recuse its 
justices from cases regarding the CNE.  The Constitutional 
Chamber's action, questioned because a decision has yet to be 
published and taken without the required quorum, aims to kill 
a suit filed by opposition allies challenging the CNE's 
decision to refuse to certify more than one million 
signatures from the presidential referendum signature drive. 
End Summary. 
 
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Background on Court Moves 
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2. (U) This cable provides background on the legal moves in 
the Supreme Court (TSJ) prior to the Electoral Chamber's 
March 15 decision, in which the Chamber instructed the 
National Electoral Council (CNE) to include more than 800,000 
signatures, previously relegated to "observation," in the 
appeals process (reftel). 
 
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Dueling Court Chambers Trade Rulings 
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3. (U) After a flurry of legal maneuvering March 11, the 
TSJ's Constitutional Chamber declared that it alone is the 
 
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appropriate forum to hear cases regarding the CNE and the 
proposed presidential recall referendum.   The Constitutional 
Chamber, acting on a request presented by pro-GoV legislator 
Ismael Garcia (PODEMOS), made its declaration hours after the 
TSJ Electoral Chamber seemed to hand the opposition a victory 
 
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when it declared itself competent to decide cases regarding 
the CNE. 
 
4. (U) The Electoral Chamber's ruling rejected motions 
seeking to recuse each of the Chamber's members.  Garcia, who 
is also a member of Chavez's election movement (Comando 
Ayacucho), filed a motion seeking to remove Justices Alberto 
Martini and Rafael Hernandez, alleging they were both 
prejudiced against President Chavez.  Garcia and other 
pro-GoV legislators publicly called Martini a traitor for 
allegedly seeking protection from the U.S. Ambassador and now 
taking orders from the USG. 
 
5. (U) Under court procedures, such a motion brought against 
the Chamber president would normally be decided by the 
Chamber vice president.  Opposition legislator Gerardo Blyde 
(Primero Justicia), however, filed a motion to recuse the 
Chamber VP.  The additional motion threw the decision to the 
whole three-judge panel, which ruled that all recusal motions 
were untimely and without sufficient legal basis. 
 
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Chief Justice Feared Decision of Electoral Chamber 
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6. (C) In March 12 meeting, TSJ Chief Justice Ivan Rincon, 
who also serves as the president of court's Constitutional 
Chamber, told the Ambassador that he had to take the case 
away from the Electoral Chamber to keep the country from 
"going up on flames."  Rincon dismissed the Electoral Chamber 
as an instrument of the opposition, and alleged that that 
 
Chamber was poised to declare a referendum without regard for 
the CNE-mandated appeals process.  Letting the Electoral 
Chamber rule on the case, said Rincon, would be akin to 
permitting a "coup d'etat by magistrates."  Rincon agreed 
that allegations that Electoral Chamber president Martini was 
taking orders from the USG were baseless.  However, Rincon 
said opposition leaders such as Juan Fernandez and Henry 
Ramos were "close" to Martini.  Rincon said he suspects there 
are as many as 300,000 false signatures filed by the 
opposition, and complained that the media had interposed 
itself in the process instead of acting as an observer. 
 
7.  (C) The Ambassador told Rincon several times that the 
international perception of the CNE's verification of the 
presidential referendum signatures is that it was arbitrary, 
and that by rejecting 50% of the signatures because the 
personal data were allegedly entered by the same hand the CNE 
altered the outcome of the petition drive.  He urged the 
Venezuelan justice to do what he could to ensure that the 
appeals system being developed for the sugnatures was 
transparent and workable, and that the universe of signatures 
to be considered in the appeals process be as large as 
possible.  Rincon agreed it should be transparent and 
workable. 
 
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Opposition Law Suit Could Force a Referendum 
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8. (U) The central case before the Supreme Court, filed by 
Blyde and opposition allies, challenges the CNE's rejection 
of some 1.3 million signatures from the recent Presidential 
referendum signature drive.  The CNE threw out many of the 
rejected signatures because some corresponding data on the 
petition forms was written in the same hand.  The opposition 
suit claims the CNE never published guidelines directing 
signers to fill in all information with separate handwriting, 
and therefore alleges that failure to certify the 1.3 million 
signatures is illegal. 
 
9.  (U) Noted constitutional expert Tulio Alvarez, speaking 
to reporters, questioned the validity of the Constitutional 
Chamber's decision -- no decision has been published and 
there was no quorum in the Constitutional Chamber.  The 
Constitutional Chamber, he asserted, cannot make a decision 
infringing on the jurisdiction of the Court's other chambers. 
 Alvarez also noted that accepting that one Chamber of the 
court can usurp the jurisdiction of another would signal the 
complete emasculation of the judiciary. 
 
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Comment: 
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10. (C) Court-watchers expect these rulings to be only the 
first round of decisions in several competing legal actions 
that could impact on a decision to schedule a presidential 
recall referendum.  Under court rules, the TSJ's 
Constitutional and Electoral Chambers enjoy co-ordinate 
jurisdiction on some electoral matters.  Recognizing this, 
opposition lawyers had hoped to push their case through the 
Electoral Chamber.  Because the recall referendum is a matter 
stemming from a constitutional provision, however, Chavez 
supporters saw an opening to transfer the case to the 
Constitutional Chamber.  For now, these moves in the 
referendum legal chess match appear to kill the opposition's 
central case.  Rincon is convinced that allowing a referendum 
without first having a CNE-run appeals process first is 
unworkable.  Nevertheless, he appears open to discuss 
options. 
SHAPIRO 
 
 
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      2004CARACA00908 - CONFIDENTIAL