Constitutional Debates Amidst an Absent President

Jennifer McCoy

The Constitutional Chamber of the Venezuelan Supreme Court addressed yesterday a furious debate over a constitution that does not give explicit instructions about the unique situation facing the country on the eve of the scheduled inauguration of a new presidential term.  The Court resolved that the government of a re-elected president continues without a break into the next term, and that the swearing in of the president’s next term could take place at a later date when the president determines that the obstacles to the swearing in have been removed.  The consequences of the Court’s ruling are that Hugo Chávez remains the president, on authorized leave outside of the country, and the vice president and cabinet continue in their functions.

The Supreme Court thus denied the opposition’s claims that the failure of President Chávez to appear for his inauguration, or the failure to make use of the constitutional provision to declare a 90-day temporary absence of the president, leaves a vacuum of power.  The opposition argued that the constitutional date of January 10 signified the end of the previous government (including its vice president and ministers) and that in the temporary absence of the president, the head of the National Assembly should take over until either the president is able to return to his office, or an absolute (permanent) absence is declared.  In the case of a permanent absence, special elections would be called within 30 days to elect a new president to fulfill the remainder of the six-year term.

The Court’s decree thus ended the legal uncertainty but not the political controversy over the significance of the January 10 inauguration date.  No one is arguing that an ill president who cannot make his inauguration should give up his entire term.  The dispute revolves more around legal and political fears and arguments.

The opposition fears that the “flexible” interpretation of the constitution could become a slippery slope to ignore other provisions, such as special elections should they become necessary.  The government’s arguments have focused on the political facts of the popular mandate and decried legal “formalisms”.  

The practical consequences are that President Chávez remains president in absentia, the vice president continues to be in charge, and there is no specified end-date to the situation.  It is not entirely clear why the Venezuelan government opted for this approach rather than the constitutional provision for a temporary absence up to 90 days, extendable by another 90 days, which the opposition and even the special adviser to President Rouseff have endorsed.  Some have attributed the decision to divisions within chavismo, and particularly a power struggle between the civilian wing with close ties to Cuba, reportedly represented by the vice president,  and the nationalist military wing reportedly represented by the head of the National Assembly.  But the three branches of power, and both men, have all agreed on this approach, and indeed disunity at this point does not serve either faction.  

Instead, the decision may reflect that government officials would prefer that the president himself take the decision to step down, even temporarily.  It may just be too difficult for close confidants to take on that burden, and for supporters to accept it, for a leader with such strong charisma and emotional connection.

In addition, the legal decision appears to reflect the philosophy of constituent power – the authority of the people’s will, in this case expressed in the October 7 election, over constituted power – the formal rules and institutions of government.  This has been the basis of the Bolivarian revolution and the 1999 constitution.  

So for now, Chávez’s supporters are called to rally in the streets to celebrate the non-inauguration day, and foreign dignitaries arrive to féte an absent leader .  Meanwhile, the opposition has asked the OAS to declare the situation unconstitutional, and foreign governments will have to decide whether and how to respond.

Jennifer McCoy is Director of the Americas Program at the Carter Center, Atlanta, Georgia. 

Another version of this column appeared in Folha de Sao Paolo.