The Venezuelan Presidential Crisis

—Rolando Seijas-Bolinaga, PhD Candidate, University of Cambridge

The leader of the Venezuelan National Assembly, Juan Guaidó, was sworn in as Venezuelan interim President before a crowd on one of Caracas’ largest avenues on January 23. A week before, Nicolas Maduro, was also sworn in as President before members of the Supreme Court. Are there now two presidents in Venezuela?

It is crucial to comprehend what happened in 2018 in order to understand the current situation. After the opposition won a resounding majority in the National Assembly (Venezuela’s Legislative body) in late 2015, then-President Maduro unilaterally convoked a Constituent Assembly that was designed to bypass the National Assembly in 2017. The Venezuelan Constituent Assembly was elected ignoring constitutional procedure, and half its members were not selected by universal suffrage. Not surprisingly this Constituent Assembly only has Maduro supporters as its members. Imagine that the president of the U.S calls for the election of a parallel Congress after losing a midterm election with the added layer that the new Congress will have the power to amend the Constitution, to remove any public official, and to set new electoral calendars: this was precisely Maduro’s strategy.

The Constituent Assembly called for a new presidential election last year, in the middle of a worsening humanitarian crisis. Government published statistics suggest that infant and maternal mortality has soared in 2017 and 2018. According to a local NGO, almost 500 new-born babies died due to a lack of basic sanitary conditions in 2017 in a hospital in San Cristobal, a city near the border with Colombia. Far from being an isolated case, this situation repeats itself throughout the country. At the same time, the economy has continued its plunge into hyperinflation. Nonetheless, Maduro ran almost unopposed in 2018 since most of the leaders of the oppositions are either in jail, in exile or banned from running. He was re-elected president on May 20, 2018 in a process that was widely considered a sham. Turnout in the presidential election was the lowest in Venezuelan history and even the company that provided the voting machines and electoral software for the election called it a fraud. As a consequence, Latin American countries, except for a few allies of Maduro, refused to recognize the results. Other countries in Europe and North America followed the same path and asked for new elections.

According to article 231 of the Venezuelan Constitution, the elected president needs to be sworn in before the National Assembly on January 10 of the first year of his new term. Maduro refused to attend the National Assembly and proceeded to be sworn in instead before the Supreme Court that had previously been packed with his allies. Meanwhile, on January 5, Juan Guaidó became the President of the National Assembly.

According to article 233 of the Venezuelan Constitution, the president of the National Assembly is called to undertake the responsibilities of the Office of the Presidency when there is an ‘absolute absence’ of the president-elect. This caretaker government has the sole responsibility to call for new elections after 30 days.

Article 233 of the constitution stipulates that an ‘absolute absence’ of the president occurs in the event of her death, resignation, successful impeachment, permanent physical or mental incapacitation, or ‘desertion’ from office. The scenario of not having a president-elect before the start of the term, due to the lack of a legitimate election, is not explicitly considered in the Constitution.

The Venezuelan National Assembly nonetheless chose to apply Article 233. It argued that the election of 2018 was not a legitimate democratic process. Therefore, in the absence of a duly elected president, the solution that ought to be used is similar to that described in article 233. Hence, the National Assembly has tried to remedy the absence of a democratically elected president by assuming functions of the presidency and naming Guaidó interim president. Now, Guaidó’s power is only that of a caretaker president. The Constitution limits his agenda to securing the holding of new elections.

Two issues need to be discussed further. One concerns an interpretation of the facts and the other the interpretation of Article 233. First, if you consider that Maduro was elected through a legitimate electoral process in 2018, then the National Assembly is wrong in claiming there was no president-elect. However, this interpretation should be rejected due to the serious flaws of this election. The vote was held following the mandate of the Constituent Assembly – whose creation itself was unconstitutional – and furthermore, the vote did not meet any threshold of electoral integrity. Constitutional law scholar José Ignacio Hernández has pointed that in the heart of the issue is the fact that Maduro is an usurper of the presidency due to the illegality of the 2018 elections. Therefore, the National Assembly has a duty to restore the constitutional order in the country. Restoring the constitutional order is a complex process that goes beyond the application of Article 233.

Regarding the text of the Constitution, article 233 does not deal specifically with the situation of not having a president-elect because of lack of democratic elections. The examples used in the article are not really similar to the facts of this case. The Constitution would seem to give the Congress some discretion in determining whether one of the situations presented in the article has been met: it is up to the National Assembly, for example, to determine whether the president has ‘deserted’ office. However, this is not a satisfactory explanation since Maduro has not ‘deserted’ office; if anything he has refused to leave office. The text of article 233 does not offer an immediate way out of this situation. One way around this problem is to suggest that the list of examples found in Article 233 is not exhaustive.

My position is that in the absence of a specific solution found within the constitution, Article 233 offers the only possible remedy that might be applied in this situation. In other words, the optimal course of action is for the president of the National Assembly to assume an interimpresidency with the goal of calling an election. Otherwise, Maduro will continue to arrogate for himself the powers of the presidency without holding a democratic mandate. The latter is an outcome that needs to be rejected as contrary to the democratic principles of the constitution (See articles 5,6,138 and 350)

Seldomly will a constitution offer an obvious remedy to a power grab of the type attempted by Maduro. Article 233 offers a remedy to a situation that is at least similar to the current one. Further, Article 233 offers the only option that could lead to free and fair elections in Venezuela. Restoring the constitutional order will be a complicated process. This is especially true since Maduro has control over the judiciary, the military, and the institution with the machinery to organize elections. The National Assembly has approved a Statute that regulates the powers of Guaidó and establishes a path for free and fair elections. The Statute also calls for the interim president to safeguard assets of the Venezuelan state, to guarantee the delivery of desperately needed humanitarian aid, and for concrete steps such as re-ratifying the American Convention of Human Rights denounced by Hugo Chavez in 2010.

It is uncertain how the crisis will unfold. However, it is possible to clarify that Guaidó has not ‘sworn himself in’ as president of Venezuela. He is acting fulfilling a mandate to restore the Venezuelan Constitution from the National Assembly. It is untrue that in acknowledging him as president, foreign governments are simply recognizing a U.S imposed president in the Americas. Guaidó has a legitimate claim under the Venezuelan constitution. He has far more democratic legitimacy as president of an elected body to hold the Office of the Presidency than Maduro. Assuming he is just an American imposed president ignores the millions of Venezuelans that have rebuked Maduro, especially in the 2015 elections and through massive political mobilizations in 2017-2018. Furthermore, it ignores that Latin-American countries have led the efforts against Maduro’s regime for most of the past two years.

The only party in this conflict that is openly offering the Venezuelan people an opportunity to have a say on their future through elections is Guaidó and the National Assembly. The decision to recognize him or not as President of Venezuela remains in the political realm under international law. However, in recognizing Guaidó as interim president, governments will be backing the only option on the table that is offering free and fair elections. On the other hand, Mr Maduro does not promise any peaceful or democratic alternative out of this crisis, only repression.

Suggested citation: Rolando Seijas-Bolinaga, The Venezuelan Presidential Crisis, Int’l J. Const. L. Blog, Feb. 21, 2019, at: http://www.iconnectblog.com/2019/02/the-venezuelan-presidential-crisis/