The Living Constitution

As a lector avispao put it to me, the problem with my critique of the Maduro Doctrine is that I’m looking for the constitutional law in the wrong place.

The source of genuinely binding norms in Venezuela these days isn’t what’s written down in any little blue book, but rather The Living Consitution, a.k.a., Chávez ranting extemporaneously. That, ultimately, is where we need to turn for exegesis.

And so, behold, the Real Article 231:

“If, as the constitution says – how does it go? – if some unforeseen circumstance presented itself – that’s how the constitution goes – that renders me unable, listen carefully, to continue to head the presidency of the Bolivarian Republic of Venezuela, whether it’s to conclude the few remaining days, ¿How long, one month? Right, one month – and especially to take on the new period, for which I was elected by you, if something should happen to render me unable in some way, I – Nicolás Maduro – not only – in that situation, must conclude, as the constitution dictates, the period. But in my firm opinion, full like the moon, irrevocable, absolute, total, in that scenario which would oblige you to call new presidential elections, you elect Nicolás Maduro…” [emphasis added – stumbles and non-sequiturs sadly in the original.]

A couple of things jump out here: The Living Constitution is quite explicit. He urges us to listen closely. He notes that Maduro, as vice-president, would be entitled to conclude (terminar) the existing, 2007-2013, constitutional period – the one with “just a few days” remaining.

That period ends on Thursday.

Separately, the Living Constitution also mandates that Maduro become PSUV’s presidential candidate in fresh elections, to be held within 30 days, to replace a disabled Chávez’s for the balance of the 2013-2019.

The Living Constitution is silent on the question of who should be president between the start of the New 2013-2019 period on January 10th, and the date when new elections are held.

Nowhere does the Living Constitution endorse the Solicitor General’s view that there is “continuity” of the old, extinguished presidential term past January 10th, a position rejected by the Living Constitution’s explicit emphasis on the idea that the previous period ends a month after His remarks were originally made.

Where the Living Constitution is silent, and only where the Living Constitution is silent, it is admisible to consult the Dead (i.e., dead-tree based) Constitution for direction. And here article 233 is clear:

While a new president is elected and takes office, the Chairman or Chairwoman of the National Assembly shall be in charge of the presidency.

Now, constitutional scholar love to go on about the “Harmonic Interpretation” of the constitutional text. In this case, it seems to me clear that the Harmonic Interpretation of both the Living and the Dead Constitutions point to a single conclusion:

As of Friday, January 11th, Diosdado Cabello is interim president of the Bolivarian Republic of Venezuela.

And fresh elections must be held no later than Saturday, February 9th.

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