UCV law professor José Ignacio Hernández G. has provided what seems to me the best discussion of the constitutional provisions regarding what should happen if Chávez cannot be sworn in on January 10. In contrast to most of the political players weighing in, he starts with the assumption that the 1999 Constitution, like all constitutions, does not provide a complete guide for every concrete situation and therefore requires interpretation. His explanation is a little long and in Spanish, so here is a summary of the key points.
Ambiguities and Interpretations
- The Constitution speaks of an “elected” rather than a “re-elected” president, so perhaps the articles on being sworn in don’t apply. He discards this possibility saying that the Constitution makes no exceptions for re-election and therefore it should be considered the same as being simply “elected.”
- The Constitution says that if the elected president can’t be sworn in in the National Assembly, he or she can be sworn in by the Supreme Court (TSJ). That effectively refers to the “who” but not the “when.” He interprets this latter to be non-negotiable. The presidential term ends on January 9 and the new term must begin on January 10.
- The Constitution does not say what happens if the elected president cannot be sworn in on time, for whatever reason. This could presumably occur not just be cause of a “falta absoluta” (such as mental or physical incapacity) but for logistical reasons (like an earthquake or electrical blackout).
- The Constitution does not actually say where the swearing in has to take place. Presumably a commission of the AN or TSJ could go swear Chávez in. However Hernández says that a country’s public powers only have authority within its territory. Thus it would have to happen within Venezuelan territory.
Bringing his interpretation of these ambiguities together he suggests the following.
The “continuity” thesis–i.e. the idea that Nicolas Maduro and Attorney General Cilia Flores have offered that Chávez is on a “falta temporal,” left Nicolas Maduro in charge and will take possession when he can–is unconstitutional. Chávez’s presidential term ends on January 9, as does the term of the Vice President and the latter cannot exercise that role.
However, the simple fact that Chávez cannot make it to a January 10 swearing in does not mean his election is revoked and that Venezuelan needs to go to new elections in 30 days. That would violate popular sovereignty which is a Constitutional principle that also needs to be taken into account.
Hernandez concludes that the constitutionally appropriate solution would be for the president of the National Assembly to become acting president during what would be a “falta temporal” which amounts to a 90 day term that can be renewed once. If this becomes a “falta absoluta” elections need to be called within 30 days.
Indeed the leading positions of both the opposition and the government seem a little hard to understand. Julio Borges seems to be pushing for declaration of a “falta absoluta” which would trigger new elections. I have yet to read any analyst who suggests that the opposition would win new presidential elections in the short term with Chávez sick or passed. Interestingly, perhaps because he is clear on the math, probable candidate Henrique Capriles has not been pushing in this direction. Is Borges’s push the result of the opposition’s traditional overconfidence, simply a desire to make life difficult for the Chávez government or the result of some sort of competition with Capriles?
Why doesn’t the government simply adopt the solution Hernandez suggests? I would speculate that two reasons are at play. First, despite the remarkable recent shows of unity between Maduro and Cabello, there are long term tensions between the networks they represent and Maduro probably does not want to risk having Cabello in power for several months. Second, taking the plunge to start making moves for a chavismo without Chávez is no small step. In fact it is something only Chávez has been able to do publicly in naming Maduro his successor. For Maduro and others to start taking further steps while looking like they are not taking advantage of the situation it will have to be absolutely clear that Chávez is not coming back. So far the unquestionable premise of everything Maduro, Flores and Cabello have said is that Chávez will be coming back to fulfill his term.