On Presidential Absences and Public Information

David Smilde

In the past 24 hours some more reasonable and relevant opinions have emerged beyond the tug of war over whether the “continuation thesis” is constitutional. As I said early this week, I think it is not but that it a tempest in a teapot without real consequence. OAS General Secretary Jose Miguel Insulza said something substantially similar yesterday pointing out that the only consequence of the issue is which Chávez insider is in charge, Maduro or Cabello. Yesterday after the ruling Henrique Capriles also portrayed the TSJ’s ruling as essentially an issue of succession within the governing party.

The LA Times came out with an editorial this morning that hits on a different element that I do think is important: the lack of reliable official information on Chávez’s health. On Tuesday the National Assembly extended Chávez’s permission for absence “as long as he needs,” by-passing the figure of “falta temporal.” The latter has a specific time limit (90 days, renewable once) and mechanism for review. It should be pointed out that both figures are in the Constitution. But it seems clear that the permission for absence (Art. 235) refers to extended trips abroad, while the “falta temporal” (Art. 234) refers to precisely this type of case in which the president needs to temporarily step aside for whatever reason. It is therefore more structured. With the AN’s extension of the permission, and the TSJ’s support, Chávez could conceivably be on life-support for weeks or months, but still hold the office of president whether or not that would have been his wish.

Of course there are mechanisms to avoid this. Art. 233 says the TSJ can order a medical team to examine the president to determine if there is permanent mental or physical incapacity which would create a “falta absoluta.” But the TSJ also ruled that out saying Chávez had made clear the reasons for his trip on December 8. So now Chávez is on indefinite leave with no mechanisms for reviewing that leave or verifying his condition.