US embassy cable - 04CARACAS2036

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). 
 
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Summary 
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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. 
 
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TSJ Lets Chavez Run Again, Maybe 
 
SIPDIS 
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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. 
 
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CNE Approves The Question 
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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. 
 
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CNE Releases Timeline 
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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. 
 
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Comment 
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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 
 
 
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      2004CARACA02036 - CONFIDENTIAL