US embassy cable - 04CARACAS946

UNCLAS  CARACAS 000946 
 
SIPDIS 
 
 
NSC FOR TSHANNON AND CBARTON 
USCINSO ALSO FOR POLAD 
STATE PASS USAID FOR DCHA/OTI 
 
E.O. 12958: N/A 
TAGS: PGOV, PHUM, KDEM, VE 
SUBJECT: SUPREME COURT DONNYBROOK STALLS RECALL 
 
REF: CARACAS 00923 AND PREVIOUS 
 
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Summary: 
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1. (U) The Supreme Court (TSJ) Constitutional Chamber ordered 
the Electoral Chamber to stop all activity related to the 
National Electoral Council (CNE) March 17.  In a March 18 
letter, the Electoral Chamber reaffirmed its jurisdiction in 
the matter and refused to give up its files.  For its part, 
the CNE appealed the Electoral Chamber's March 15 injunction 
regarding the presidential recall referendum signatures in 
the in the TSJ's Constitutional Chamber March 17, alleging 
that order violated CNE autonomy as a separate governmental 
power.  CNE vice president Ezequiel Zamora, part of the 
opposition minority, said March 18 the CNE was obligated to 
follow the Electoral Chamber's order and schedule a 
presidential recall referendum.  Pro-GoV CNE director Jorge 
Rodriguez was hospitalized March 18 for hypertension. 
Justice Luis Martinez, the vice president of the TSJ 
Electoral Chamber, issued a public statement March 18 
denouncing the March 15 ruling, and attacking his fellow 
Electoral Chamber justices as politically motivated.  The 
apparent deadlock in the court now leaves little room for a 
legal solution that can satisfy the parties.  In the 
meanwhile, the presidential recall referendum is stalled. 
 
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Dueling Court Chambers 
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2. (U) The feud between Chambers of the Supreme Court of 
Justice (TSJ) continued March 17, as three justices from the 
court's Constitutional Chamber ordered the Electoral Chamber 
to stop all activity on legal actions related to the National 
Electoral Council (CNE) and signatures seeking a presidential 
recall referendum (reftel).  As authority, the Constitutional 
Chamber cited its own opinion, issued in December 2001 in a 
separate case, in which it declared itself competent to hear 
cases having to do with the CNE.  The March 17 pronouncement 
also ordered the TSJ's Electoral Chamber to transfer files 
having to do with the CNE case.  In a March 18 letter sent to 
the Constitutional Chamber, Justice Alberto Martini, the 
president of the Electoral Chamber, reaffirmed his Chamber's 
legal authority to settle electoral matters and refused to 
transfer any files in the pending CNE case.  Martini also 
questioned the legitimacy of the Constitutional Chamber's 
March 17 order, saying it was signed by only three members of 
the five-judge chamber when four are required under court 
rules to form a quorum. 
 
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CNE: We'll Follow All Court Orders, But... 
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3. (U) The CNE filed an appeal in the TSJ's Constitutional 
Chamber March 17, alleging that the Electoral Chamber's March 
15 order regarding signatures for a presidential recall 
referendum violated CNE autonomy as a separate governmental 
power.  In a public announcement, Francisco Carrasquero the 
CNE's pro-GoV president, said the legal action was necessary 
to ensure the CNE remains the "final authority for all 
electoral issues."  Carrasquero tempered his earlier comments 
regarding the March 15 ruling, by saying he was a "man of 
laws" and would therefore follow all orders of the court.  He 
insisted, however, that the Constitutional Chamber was the 
appropriate forum for any questions regarding the CNE. 
(Note: Carrasquero did not address the arguments raised by 
the Electoral Chamber, the opposition and by constitutional 
scholars, who point to Article 298 of the Venezuelan 
constitution, which says all questions regarding the CNE will 
be settled in the TSJ's Electoral Chamber.  End Note.) 
Carrasquero also denied that the referendum process was being 
delayed, saying "nothing is paralyzed."  Carrasquero said he 
expects the process will continue once the Constitutional 
Court issues a final ruling. 
 
4. (U) Ezequiel Zamora, the CNE pro-opposition vice 
 
president, responded March 18, saying the CNE was obligated 
to follow the March 15 order of the TSJ's Electoral Chamber, 
add the more than 870,000 signatures at issue to the total 
verified, and schedule a presidential recall referendum. 
Zamora said he and CNE director Sobella Mejias did not agree 
with Carrasquero's decision to appeal the Electoral Chamber 
March 15 ruling.  Zamora also hinted he may take the place of 
pro-GoV CNE director Jorge Rodriguez at a March 19 meeting 
with opposition leaders scheduled to negotiate the terms of 
an appeals process.  Rodriguez was hospitalized March 18 for 
treatment of hypertension. 
 
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Dissenting Electoral Justice Lashes Out 
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5. (U) Justice Luis Martinez, the pro-GoV vice president of 
the TSJ Electoral Chamber, issued a public statement March 18 
denouncing the Electoral Chamber's March 15 ruling regarding 
signatures for a recall referendum, and attacking his fellow 
Electoral Chamber justices as politically motivated. 
Martinez's statement was carried as a paid, full-page 
advertisement in the major Caracas daily newspaper El 
Universal and in the pro-GoV daily tabloid Vea.  (Note:  El 
Universal sources told the Embassy press section that such an 
advertisement cost over 18 million bolivares, or 
approximately $9,000 usd.  End note.) 
 
6. (U) Martinez did not refer to any legal basis for his 
argument, but instead leveled a personal attack on his 
colleague Justice Alberto Martini, the Electoral Chamber 
president.  Martini, he said, had written a "disgraceful" 
decision, filled with "serious falsehoods" designed to 
support his personal political preferences.  Martinez's paid 
announcement said Martini's decision was beneath the dignity 
of a court chamber president, and could qualify as "serious 
and criminal behavior."  Martini also set out his alternative 
policy argument, suggesting that the CNE was correct to send 
more than 870,000 signatures for additional consideration 
rather than validating them. 
 
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Comment: 
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7. (U) The GoV is pulling out the stops to obscure the legal 
issues and to raise questions of propriety in regard to rival 
sections of the Supreme Court.  It is worth noting that each 
argument raised by GoV operatives is a mirror of complaints 
lodged by opposition lawyers against the GoV.  When the smoke 
clears, the GoV still enjoys a narrow majority in the CNE, 
the TSJ's Constitutional Chamber, and the National Assembly, 
and will likely be able to block any opposition appeal in the 
TSJ sitting en banc.  Any eventual solution, therefore, will 
 
SIPDIS 
need to be the result of a political agreement rather than 
from a judicial decree.  In the meanwhile, the presidential 
recall referendum is stalled. 
SHAPIRO 
 
 
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      2004CARACA00946 - UNCLASSIFIED