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by the Living Constitution’s explicit emphasis on the idea that the previous period ends a month after His remarks were originally made.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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  1. “Serán faltas absolutas del Presidente o Presidenta de la República: la muerte, su renuncia, la destitución decretada por sentencia del Tribunal Supremo de Justicia, la incapacidad física o mental permanentemente certificada por una junta médica designada…”

    Esto es si y solo si el esta muerto “ya”, siempre pueden venir con que por ahora solo es una “falta temporal prolongada”.

      • They don’t need to argue that. As anyone with a brain knows, the swearing-in process is not what makes a person president, elections do. Swearing-in only certifies what the people already decided, and there is no reason why anyone with any common sense would think it needs to be strictly assigned to a certain day, as even the constitution allows for “motivos sobrevenidos”.

        • “What the people already decided” is called the Constitution. Since Maduro was not elected President, he will not be a Constitutional President on January 10th. If Maduro can be President for “motivos sobrevenidos”, so too can any other unelected Venezuelan.
          Cabello would be the only possible Constitutional President in Chavez’ absence.

          “Because Chavez said so” is not a Constitutional argument, it is a confession of sychophancy.

          • Maduro can indeed be president in case of a temporary absence, as is clearly laid out in the constitution.

          • Well no. Maduro is not an elected functionary, Cabello is an elected functionary. There is the diference, and since the last term ends in January 10th, the Vice President can be “Acting President” until that time. The next in the succession line is the President of the National Assembly, who should be taking the oath as an acting president in January 11th, if the Elected president is deemed unable to fulfill his duties.

            And since the President of the Assembly, was not elected President of the Republic, then he should hold the post until the next president is named by the citizens of Venezuela, in elections within 30 days.

          • This would only be the case if it were declared an absolute absence. But that isn’t the case. It hasn’t even be declared a temporary absence.

          • With all due respect I didn’t make that up. It was result after simply reading the constitution.

            You have to agree with me that Maduro is not the elected president, and he can not act as one after January 10th.

            So that’s the question, why don’t we send a group of doctors, to asses the situation. Aren’t you a bit curious of what’s going on with the elected President?

          • Maduro can indeed act as president if it is declared a temporary absence, as is clearly laid out in the constitution.

          • Once again, Maduro can not be acting president after January 10th. Pay attention to the following, The “current mandate” is until January 10th.

          • maduro SHOULDN’T be, maduro was the president of the prior period, after that period chavez will not be president until tha juramentación, he shall remain elected candidate(no elected president) as such maduro has no tight to be president, EVEN if chavez se hubiese juramentado and then come back to cuba afterwards maduro wouldn’t be able to be president uless he was juramentado again as vice president for this period.

        • Living in a country a number of years, and learning the language, and applying for it, and getting the go-ahead make you a naturalized citizen of a country…

          But you know, you still need to F****ing to go there and swear loyalty in front of witnesses to your new status and country. Plain private citizen of a country. To be a President… figure it out, smart guy.

    • Only that the TSJ and the National Assembly are derelict of their duties. They have never even made an effort to know what’s wrong with the President’s health, much less designated a commission.

  2. “But 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.”

    That’s why “the living constitution” had Diosdado Cabello with him, to let everyone knows what role should be playing each person, and the country is his witness,

  3. More wishful thinking from Toro. Both the President, and Article 233 are referring to an absolute absence in which the president is permanently unable to carry on as president. That is not the case here, as it has not been established that Chavez is permanently unable to take power.

    Nowhere does Chavez (or the constitution) say that if he is unable to be present for the swearing-in on January 10th that it should be considered an absolute absence.

    • Why not send a medical board and determine whether it is an absolute or temporary absence? This should be done immediately. For what we know, he could be dead.

      • Yes, but until the TSJ sends a medical commission to declare the president permanently unable to hold office, you cannot pretend that this is an absolute absence. It simply isn’t.

        • Where’s Hugo Chavez? Is he alive? Do we know anything about his condition, objectively, opportunely, truly (Imparcial, oportuna y verazmente) ? The TSJ might actually move its heavy ass and try to ascertain his condition. You know, it’s not the flu. They have not bothered to even know and make public the names and qualifications of the treating physicians. For all we know they could be Babalaos.

        • GAC, the TSJ is not going to do it. Neither are they going to stop chavistas from saying that since Chavez is being reelected, Jan 10th doesn’t mark the beginning or the end of his Presidency, protracting his absence for up to 6 months. it’s quite an independent Judiciary we have, don’t we?

          • You don’t interpret the constitution based on what you think the institutions might or might not do, you interpret it based on what it says.

          • Yes and we happen to have a constitution shittily written that does not compel the judiciary to evaluate Chavez’s capability to rule nor do we have a judiciary willing to stop sucking Chavez’s dick and do its job.

          • Again, when you don’t have any arguments left, just go off onto something else, right? It is clear who is incapable of serious debate.

          • There are laws, you know, based on the Constitution, that define such duties as for example, what the TSJ is to do if there’s any issue with the health or well-being of the President, among others. Just so you know. They define also what the National Assembly might do in related cases.

        • Only in GAC’s world would the complete and utter absence of a head-of-state without any meaningful explanation for a month be considered a partial absence. Cuando el rio suena, piedras trae.

          • “Only in GAC’s world”… in which the Constitution is read correctly?

            Using phrases like “complete and utter” doesn’t change the fact that the criteria for declaring Chavez’s absence “absolute” and not merely “temporary” hasn’t been met.

      • Chavistas are happy being ignorant and clueless, among other things of things affecting them and on how they are led. Where ignorance is bliss… Else how do you think anyone can come to think of Castro’s Cuba as a role model?

    • True, but let’s not forget that we don’t know whether or not the president is ready to resume duty, heck we don’t even know his current medical state, is he conscious? We don’t know!

      We have very little information from Villegas and Maduro, and they just sugarcoat the whole thing. IMHO, the TSJ must appoint a group of doctors, have them to visit Havana Cuba, to asses the current situation and solve these three simple fuc*** questions

      Is the president able to resume duty?
      When can we have a president?
      Who is in charge in the meantime?

      Period!! Is that so hard? Come on no need for this whole melodrama. You won the last election, we don’t care for new elections, Capriles is not even trying hard you know, we want everybody doing business as usual, Chavistas are the biggest moron of the earth, they are drowning in a glass of water.

    • The fact is that unless Chavez takes the oath of office on the 10th he becomes another ex-president until he can do so. My guess is that the party will keep this situation going for as long as it is necessary. The opposition is powerless to stop this and the TSJ will do whatever the party tells it to. I don’t expect to see a parliamentary delegation visiting Chavez or his corpse anytime soon.

  4. Lol, good one. However, I fear that Chavez is slowly becoming irrelevant in this mess, he is destined to become our version of the Cid, the party will call the shots, once they are ready they will tie him to their version of Babieca and they follow the corpse to the next electoral “victory”.

  5. Chavismo would be foolish to delay the election. They are riding a high political wave and there’s a ticking economic time-bomb waiting to explode. If they delay, they may lose. The sooner the better for them, no doubt.

    • Right. That’s the other part that doesn’t make any sense – it’s not even in their interest to do this.

      If they declared Chávez’s absence on Thursday and swore in Diosdado instead, they might even get to run the new campaign with Chávez still (barely) alive…or, if they get really lucky, he might die a week before the vote – imagine that! Funeral on Friday, vote on Sunday…how could they lose?

      • That’s exactly it. The argument I can make for the delay is that they (somehow) realise everything is FUBAR – economically speaking – and don’t want to be in power once the bomb goes off… But that gives them too much credit methinks.

        • Exactly. Upon his return from Cuba, Dilma Roussef’s advisor (Marco Aurelio Garcia) announced that “La informacion que obtuve (en La Habana) es de que en la eventualidad de que el Presidente Chávez no pueda comparecer a Caracas (el dia 10), hay una cobertura constitucional” que establece los procedimientos.

          MAG did not get to see Chávez in CIMEQ. Chávez’ two arcangels are in Caracas. Yet, it’s Cuba that pronounces on the constitutional umbrella.

      • Maybe a government that has made breaking the law and circumvent the Constitution a state policy fails to see when following the rules actually benefits them.
        I can imagine Diosdado and Maduro thinking, hey if this is legal it must benefit them not us!

    • I heard a rumor that they think that declaring the absence while he’s still alive might hurt them electorally because it might seem like a betrayal to HCH by the hardcore chavista base.

  6. ‘That’s the other part that doesn’t make any sense – it’s not even in their interest to do this.’

    And yet … and yet … they are doing it. So somewhere or other there must be a sense to it. Here’s how I read it (and I’d be interested to hear what others think): 1. Note that, despite what he said before the operation, Chavez ‘no ha soltado el coroto’. He has at no point deemed himself to be incapacitated, so far as we know. And I think that if he had given clear instructions to this effect, Maduro would be the acting president. I can’t think of any reason why, if he’d been told to take over, Maduro would not have done so. 2. In the absence of Chavez’ own decision (and he may well simply not be capable of taking one at this point), his minions are far too scared of him rising from the dead to take the reins, even temporarily, much less have him declared ‘permanently absent’ and move to elections.

    That’s going to be a big problem if Chavez slips into a coma but fails to die for months, without ever making explicit that he is handing over power.

    If this is what is really happening, the part that doesn’t make any sense (to a normal, sane human being at any rate) is that anyone would be so absolutely hooked on power as to refuse to let it slip from his grasp even as the Grim Reaper was standing by the bed and gesturing towards the door. But it is consistent with everything we have come to know and love about the comandantepresidente.

      • It’s the Hot Potato Doctrine. It’s based on the fear that the big guy might come back and take the head of those who he perceives tried to take power in his absence. Hence the focus on maintaining the pre-op status quo. This does kind of make sense; as long as things haven’t changed no one can be blamed for making a grab. “I’m exactly where you left me, ComandantePresidente”. This might actually be the best indicator of the prognosis of the patient. He might be in bad shape but they believe there is a good chance he’ll come back.

        • ‘.. they believe there is a good chance he’ll come back.’

          or: they’re so scared of him that while he still has a pulse they don’t dare do a thing. As Fidel Velasquez (who managed to retain the leadership of the Confederacion de Trabajadores Mexicanos for about half a century) was fond of remarking: ‘el que se mueve no sale en la foto’.

  7. The 1961 constitution was clear about what to do in a case like this: ” Cuando el Presidente electo no tomare posesión dentro del término previsto en este artículo, el Presidente saliente resignará sus poderes ante la persona llamada a suplirlo provisionalmente en caso de falta absoluta, según el artículo siguiente, quién los ejercerá con el carácter de Encargado de la Presidencia de la República hasta que el primero asuma el cargo.” (Art. 186). The new one is not. It only says what to do in case of a falta absoluta. Thus Mr. Maduro et al, have plenty of room to maneuver and get it done their way while Mr. Chavez is alive. Afterwards, who knows?

  8. Are you trying to furnish proof, Quico, that chavismo is a pre-modern political sect built around some kind of Living Saint? You just have contributed a piece of the proof. One characteristic of such a pre-modern approach is having Living Word this and that, who are not questioned but believed on faith alone. Already we have the part where they believe in the Saint (or his acolytes) on faith and blind faith alone.

    The huge problem for the chavistas is, barring a Marxist miracle, that the Living Constitution and the Dead Constitution are converging towards the same state. Being a thing of archive, cold and… definitely fixed and ended. Now we know why they are going into hysterics.

  9. >>> … The Living Constitution … January 7, 2013 by Francisco Toro
    Thank you. Very nicely explained. How you manage to sit down and string a cogent argument at a moment’s notice is beyond me. At least, now I know what to expect on jan 10

  10. I stopped worrying a long time ago about what the constitution says or does not. Quico you are really doing a heck of Job trying to guess what will happen. For me is simple, they will do as they please, and sadly not much will be done by the oppo.
    My only hope is that they somehow mess up and make a wrong choice the 10th, i.e. leaving Maduro as VP. Not because having a Gobierno de facto will change anything, but because finally this lame asses as get a clue, will have to stop pretending that Venezuela is a beautiful democratic socialist panacea.
    I still believe there is something we are all falling to see.
    If a Gobierno de facto starts the 10th, will the US do/say something? will anyone?

  11. As far as I can see from this blog and others, the best constitution in the world is still too opaque and leaves a lot to interpretation. What is needed is simply a new one. If I remember correctly, this one is only constitution #26 and seems to still have plenty of flaws, so, I humbly suggest back to the drawing board. Eventually, the legislators will get the right constitution. Good thing the legislator are not baseball players, only three strikes allowed. Imagine 26?

    • One time, just for fun, I decided to see if I could improve on the current constitution using just one button on my keyboard: delete. You could clarify a lot by just deleting extraneous verbiage and empty phrases from the constitution, without having to actually add any new text. I should finish that exercise, some day. We’d end up with a much, much shorter and much clearer and more applicable text.

    • If you look back to 1999 and the constituent assembly that drafted the mess that is the current constitution, you’ll see that they ended up throwing it together any old how at the last minute. Almost all the assembly members were chavistas and there were precious few voices warning them of the pitfalls ahead (all ignored anyway). That’s why, for instance, they ended up with ridiculous articles like 350 – intended to invest the 1992 coup attempt with some retrospective ‘legitimacy’ – which can be used to justify any act of rebellion against the established order. Do yourselves a favour, Venezuelans, and don’t bother drafting any more constitutions. Put all your energy into constructing a decent judiciary so that the one you’ve got is interpreted in the most liberal and progressive manner possible.

    • Yeah this whole thing, will teach us somehow of the importance of making a very well written constitution.

      Also this will give us one reason to call for another constituent process and prepare a new improved, well written constitution. I don’t like a constitution where the guy in charge call any of its articles a mere formality because it does not suit any of his political or personal interest, since such articles is so badly written that leaves too much room for interpretation.

      Well some people might say with all the reasons, that making a new constitution is a waste of time. But I rather invest 2 or 3 years into making a new constitution than spending 2 or 3 generations deciding which is the best way to interpret every article of the best constitution of the world, provided by the most kind, generous people of the world.

  12. Yesterday, I listened to an interview broadcast of Malcolm Gladwell. He described the relationship between Canada and the USA as being “asymmetric”… and what he described sounded to me very much like the asymmetry between Chavismo and the opposition. In effect it goes like this: (1) The opposition knows much more about Chavismo than the reverse simply because Chavismo doesn’t think the opposition is important enough, while the opposition is constantly worrying about what Chavismo is doing and how it will effect them. In fact, Chavismo doesn’t care very much how their policies effect the opposition. On the other hand, what Chavismo does care about is its Bolivarian revolution. (2) Among themselves, whether it’s fantasy or not, Chavistas are working hard on their revolution, but the opposition is not intimate enough to listen in on that conversatation… hearing only the rhetoric and propaganda packaged for the followers. There is a dimension that is going on among the Chavez gang that is opaque. (3) That conversation that is so profoundly critical to the future should be transparent to all open to debate.

    • the USA and Canada are good neighbours. They respect one another, grosso modo. Throughout their long history, they have rarely engaged in artificially-induced polarization. And that’s just for starters. You might be able to use parts of your number (1) to justify the comparison. But I don’t see numbers (2) or (3) applying.

      • However, Canada is very small and depends profoundly on what the USA does… but USA doesn’t pay attention to Canada very much. Canada cannot participate in USA’s political process, because Canada is a separate country…. and my thesis is that Venezuela’s opposition is being treated like it is from a separate country. Meanwhile, Chavismo is aware that it is failing to accomplish its missions, and it must know that its current path is not sustainable. Cuba is not going to provide a solution. There needs to be a solution to this quagmire.

  13. I kmow he has gone quiet but GAC is he a PSF yankee? If GWB had been drunk on swearing in day and absent for a month would that have been a “formalism”? I presume not! Ah but Constitutional rigour is for them not for us! in the eyes of most PSFs we probably have not reached that level of political sophistication. i have always thought that most PSFs are at heart racist and prejudiced! They do not deem us Venezuelans worthy of the rule of law, fairr due process, freedom of speech, etc. If only they would renounce their US and or European citizenships and move to Venezuela permanently, BS talks!

  14. yes I invite all PSFs to move to Venezuela PERMANENTLY, give up your other citizenship of your capitalist/imperialist state and live by your word (without the optionality of having a get out of jail free card), I suggest Caracas as a preferred location. under the current regime it is one of the most thrilllong places to live (die?) in. Come, the red carpet is here roja rojita

  15. FT, what if Diosdado refuses to be sworn in? Would he still be president? What if he is kidnapped just before Jan. 11? Or becomes too ill to be sworn in? For that matter, what if Chavez had been kidnapped on Jan. 9, instead of recovering from cancer surgery? Would he still have to cede the presidency to the president of the AN?

    You seem to think that how the constitution is to be interpreted is unambiguous, in which case answering the above questions should pose no problem for you.

      • That is a refreshingly humble statement from someone who usually has an opinion on almost everything and who earlier made this definitive statement:
        “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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