What if they had an inauguration and no-one came?

In 2009, Venezuelan president Hugo Chávez succeeded (at his second attempt) in getting approval in a referendum to amend his country’s constitution to remove term limits, thus enabling him to run for re-election last October. He won reasonably comfortably, and is due to be sworn in for a new term tomorrow (Friday morning, Australian time).

The problem is that Chávez is in Cuba, recovering from cancer surgery, and although information on his medical condition is sparse, it has become clear that he is in no condition to attend an inauguration ceremony. Yesterday the Venezuelan government stated (according to the Guardian‘s translation):

The president is in a stationary condition with respect to the most recent statement, which informed about the respiratory deficiency he faced caused by a pulmonary infection. Treatment is permanently and rigorously administered and the patient is assimilating it.

That doesn’t sound very encouraging. Lacking any further data, it’s not surprising that rumors are widespread, mainly to the effect that Chávez is in a coma, or on life support, or perhaps even already dead. So what does that mean for his new presidential term?

You can read the Venezuelan constitution here, or in translation here (my Spanish is rudimentary, so I’m mostly working off the English version). Wikipedia describes it as “among the world’s longest, most complicated, and most comprehensive constitutions”, but sadly the provisions for temporary incapacity are not quite as comprehensive as they might be.

Article 231 is as follows:

The candidate elected shall take office as President of the Republic on January 10 of the first year of his constitutional term, by taking an oath before the National Assembly. If for any supervening reason, the person elected President of the Republic cannot be sworn in before the National Assembly, he shall take the oath of office before the Supreme Tribunal of Justice.

Then there’s article 234:

A President of the Republic who becomes temporarily unavailable to serve shall be replaced by the Executive Vice-President for a period of up to 90 days, which may be extended by resolution of the National Assembly for an additional 90 days.

But that doesn’t say anything about a president-elect, so presumably it can’t apply to Chávez after Thursday unless he’s sworn in – because once his term expires he’s no longer president.

There are provisions in article 233 covering the permanent unavailability of either a president or a president-elect, but permanent physical disability would have to be “certified by a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly”, and the only other relevant ground is “abandonment of office”, which would also have to be “declared by the National Assembly”.

The opposition’s claim is that the president has to take the oath on 10 January, either before the National Assembly or the Supreme Court, and if that doesn’t happen then the office becomes vacant and fresh elections must be organised within 30 days. The Catholic church in Venezuela, no friend to Chávez, has endorsed this view, but the attorney-general has rejected it.

I’m no Chávez fan myself, but I have to say I find the opposition’s argument very unpersuasive. The framers of the constitution can’t possibly have intended that some temporary and unavoidable absence of a president-elect on inauguration day would void his or her election: if that was what was supposed to happen, they would surely have said so explicitly. It makes much more sense to just extend by analogy the provision in article 234 for temporary incapacity.

In that case one can argue about whether the acting presidency should go to the executive vice-president or the president of the National Assembly – but since both are Chávez allies, probably not a great deal turns on that. It’s unlikely that either would be required to serve the full 90 days; knowing Chávez, he will return as soon as he possibly can unless he is either dead or comatose.

No constitution can cover every possible contingency. One day, a new situation will come up that wasn’t foreseen, and it will be necessary to use common sense and stretch or reinterpret some existing provision in a way that best maintains the coherence of the whole document. That day now seems to have arrived for Venezuela.




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