Photo: El Metropolitano Digital, retrieved.

See, the idea of appointing a new government in Venezuela has been going around for a while requested by the “Legitimate Supreme Tribunal,” while others talks about a transitional government or a government in exile. The end of the presidential term, on January 10, 2019, has given a new impulse to the notion.

But is it really possible to appoint a new government without elections? What could happen on January 10?

Is Maduro president?

There’s an elephant in the room each time someone discusses the appointment of a new Venezuelan government: how can a new government be appointed when there’s someone already in the chair? Is Nicolás Maduro the Venezuelan president?

This is tricky. It’s clear that Maduro is the Venezuelan president, because he holds the seat of power, wears the presidential sache, and acts as president. The real question, though, is if he holds the office in accordance to law.

And the answer is “no.” Maduro was elected in 2013 in a contested election that was recognized by the international community and at least half of the Venezuelan people. Since then, his legitimacy has declined due to several accusations of human rights violations and the dismantling of the National Assembly’s authority, that led to a fraudulent National Constituent Assembly. The National Assembly and the Supreme Tribunal’s magistrates even issued decisions aimed at Maduro’s removal from office (ignored by all of the other branches of the government).

Maduro’s presidency isn’t based on constitutional grounds, then, but on a de facto condition derived from the tyrannical powers assumed by the National Constituent Assembly. This is a very good example of how democracies can die under a veneer of constitutionality.

What could happen on January 10, 2019?

Nicolás Maduro’s term will expire and, at once, a new presidential term begins, with only the elected president assuming office (articles 230 and 231 of the Venezuelan Constitution).

Who’s the elected president in Venezuela? The presidential election was called on May 20, 2018, and according to the National Electoral Council, Maduro was elected. From this formal perspective, he can assume the presidency on January 10, 2019.

Maduro’s presidency isn’t based on constitutional grounds, then, but on a de facto condition.

But Constitutional Law isn’t about formalities, because Constitutional frauds are covered with formalities; we’d have to reckon how the May 20 election was a fraud by the National Constituent Assembly, in violation of all national and international electoral conditions, including electoral human rights. According to articles 25 and 138 of the Constitution, any election organized in violation of human rights and by usurped authority should be deemed as non-existent.

This means that, according to Constitutional Law, the May 20 election didn’t produce any legally binding decision, as declared by the National Assembly.  

As a result, Maduro isn’t a duly elected president. Several countries have turned their backs on the May 20 election, not recognizing him (or anyone else) as elected president, and the vice-president can’t hold power either, because the term of the entire Executive Branch will also expire on January 10. As a result, the Lima Group declared that because Maduro will not be recognized as President since January 10, only the National Assembly could be deemed as a legitimate power in Venezuela.

Is it possible to appoint a new government on January 10, 2019?

A basic constitutional principle of government is the continuity principle: there should be someone able to exercise power, even under extraordinary circumstances. If you’ve seen Designated Survivor, you know what I’m talking about.

However, the Constitution doesn’t provide a specific solution when there isn’t an elected president by term expiration. The only situation similar is in Article 233, second paragraph: if there’s an absence after electing the President, the head of the National Assembly must assume the presidency, until a new election is organized.

Hence, taking Article 233 as an analog rule, we can conclude that the National Assembly´s head can assume power on January 10, 2019, until a free and fair election is organized.  

What’s really going to happen on January 10, 2019?

Life is more complicated than Designated Survivor. The solution I provide to appoint a new government has strong constitutional grounds and, probably, the international community that disavowed the May 20 election could recognize the new president appointed by the National Assembly.

There cannot be a transitional government without a transition, and no transition can begin without a shift in the duty of obedience.

But what Venezuela really needs isn’t a symbolic president, or a president in exile: there’s a list of governments in exile that’s long enough to see how they could end as symbolic institutions. The nation needs a president that’s recognized both by the international community and by the civil and military servants, because the key component of political power, as Gene Sharp concluded, is the duty of obedience.

There cannot be a transitional government without a transition, and no transition can begin without a shift in the duty of obedience, from the current de facto president to a new, legitimate president.  

January 10 is not a magical date, like in Cinderella’s story. Venezuela’s democratic transition cannot be instantly adopted by decree. On the contrary, this transition should be built through a political strategy aimed at producing an actual change in the presidency, and not only a formal change without practical implication. The National Assembly, as the only elected institution in Venezuela, can and must assume the conduction of that strategy in accordance with article 333 of the Constitution. That article established the guidelines that must be followed when the Constitution is not in force by a de facto situation, as is currently happening.

In that vein, January 10 will add more pressure, particularly if the international community decides to ignore Maduro as president, but a transitional strategy aimed at provoking a shift in the duty of obedience is needed. It’s not enough that the international community decides to not recognize the old guy, it also needs a new guy to shake hands with, with the necessary gravitas to actually exercise power and address the complex humanitarian emergency.

Without these key ingredients, January 10 will be just another date in Venezuelans’ calendar of frustrated expectations.

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42 COMMENTS

  1. This is probably a reasonable way of adjudicating power AFTER someone shoots Maduro out of power. The question is which Chavista gang does it and when.

  2. And the headwinds facing the president of USA will probably inspire some venezuelans to think about opposing Maduro. As the Venezuelan national anthem states:
    “Unida con lazos
    que el cielo formó,
    la América toda
    existe en Nación;
    y si el despotismo
    levanta la voz,
    seguid el ejemplo
    que USA dio.”

  3. Thank you guys.
    Well the dollar went from 250 soberanos to almost 1000 soberanos in mere weeks. Prices of everything are as we speak catching up to that 400% devaluation and as food prices in Bolivares were too high for most people before Christmas I shudder to think how “er pueblo” is going to react to the new prices when they go shopping in the next few days. Something has to give…I know we’ve been saying this for years now but are we not somewhere close to the end of the line at this point? People got by up until now with the clap bag but they were buying regularly priced food on the side. I don’t see how that’s going to be possible from here on in. Strictly talking about food here, not any of the other factors which also influence peoples ability to generate income. Unfortunately things are going to get much worse, very quickly from now on and people tend to get REALLY cranky when their bellies are empty. Be prepared (those of you who can) to take in and feed those who are important to you, take advantage of the opportunity (while they are eating is a good time) to bring into the light the absurdity and where the blame lies for out current situation. As the article says, it’s not going to change over night but we can lay down some of the ground work necessary to shift the responsibility to where it belongs, create resentment toward the government which destroyed the economy with incessant meddling and monumental corruption. People have to get really mad and even more desperate so they will dare to stand up for themselves. Perhaps the only way that will happen is when we start seeing mass starvation. I know there are ALOT of other factors and I’m going over them in my mind right now but the discussion has to start somewhere.

    • Your comments piqued my interest Marc. According to my notes, on 10 Nov the dollar was at 250.74 according to Dolartoday. Today it’s at 910.68. On the 3rd of Jan, 4 days ago, it was 810.96.

      Revoluccion!!!! LOL

      • And remember that’s dolar today which always lags behind about 20% and NOBODY sells dollars at their prices anymore. Dollar instagram says it’s at 1200. It’s in free fall right now and NOBODY is selling anything in Bolivares until it stabilizes, also consider the change in the pedro which is tied to minimum wage. If minimum wage did indeed go up again its going to finish the job of snuffing out the few remaining businesses that are still intending on opening again in this new year. Total stagnation, no transport, no food no movement of any kind. This morning some thieves murdered a bus driver on his way here from Valencia and the word is the few remaining bus drivers are going to discontinue this route until further notice. It’s coming apart man, it’s definitely coming apart. Touching the price of gasoline at this point would be explosive, any little thing could set it off.

        • I hope you’re right Marc, but I’ve proclaimed so many times that the wheels were abot to come off (and they didn’t) that I’ve given up.

          We still sell for bolivares but only stuff we can sell quickly and double our money. Anything less and it’s a loss and a waste of time. And now, with hyperinflation really ramping up. we might need 200% profit. Heck, there are already a lot of vendors who do not accept the new 2 & 5 bolivar notes. Remember, those were first issued for general use on 20 August of last year. Six months and they’re already obsolete!

          Since products like rice, flour, sugar, and butter are now luxury items and almost impossible to find at any price, my woman has switched to selling cake and ice cream which she makes herself. I’m in charge of quality control of these products. Tough job, but somebody’s got to do it.

  4. What many people forget is that Maduro ain’t much more that a puppet for a deeply corrupt narco-regime. The real people with the power are those with the guns, about 3000 so-called “Generals”. Problem is they were all appointed by the Chavista regime, are complicit and also totally corrupt. The few honest “generals” were expedited long ago, by the filthy generals. It’s well know how they rat on each other for bribes.

    The only way to remove vicious dictatorships from power these days is by force. As we just saw in Nicaragua and recently in Venezuela, the people are incapable of removing such criminal regimes, they are promptly crushed by the corrupt police, armed forces and Guardia Nazional Bolibanana.

    And don’t expect another rescue from the “international community” or another Panama. The US Marines ain’t going nowhere anytime soon, much less to Venezuela. The military is under control and complicit, corrupt, as all armed forces, and since no other nation will intervene militarily to free our hijacked country, they are doomed. Cuban style, for decades to come. Dictatorships can last a long time, Chinese style or Russian style, and the world gets used to them. Heck, didn’t Obama visit Cuba and hug the Castro assassins a few years ago? Money rules, and if Europe or the USA can gain anything from Venezuela, they will continue to do business with them, not risking a single soldier’s life for a foreign country. They care a lot more about oil prices, and Venezuela still helps in keeping the prices rather low. Heck, not even that, the USA is drilling more oil than ever now in its own territory, and there are more alternative new energy sources and technologies than ever.

    If no other country intervened after the massive humanitarian crisis we are still witnessing – probably over 4 million exiles, not to mention thousands of dying children, etc, or when oil was a much bigger concern, what makes us dream the USA or any European “coalition” will intervene militarily now? They have their own concerns at home, and are too far away. Heck, many Americans don’t even know if Venezuela is in central or south america, and with low oil prices, what’s in their interest, Hallacas? They don’t know about that either.

    Venezuela is no Egypt or France centuries ago. I hope I’m wrong, but that seems like reality. Also, people forget that there are probably also about 4 million complicit and corrupt ‘public employees’, under Maduro’s payroll, living rather well. But of course, no one likes to admit these things about our “bravo pueblo”. Corrupt armed forces, and too many empleados publicos. Much like in Cuba and other dictatorships that last a long time. It’s already been over 20 years in Venezuela, and you’d be surprised how much can people tolerate while their countries get worse, and worse. There are countless examples of that. Heck, Donald Trump’s successor will probably visit Venezuela and hug Nicolasito as president to do some deal. Not to liberate them, unfortunately, the Panama days are over.

    • Sad to say I agree with you about there being very little hope of foreign intervention, I think the change has to come from within, we have to hit rock bottom before we can pick (ourselves) up and recover. Just like an alcoholic must hit rock bottom before they gain the ability (maturity?) to overcome their addiction. I must admit something that I am ashamed of but none the less I actually hope that things get really bad really fast, faster then slowly boiling the frog. Like one week to the next fast that shit hits the fan because of a total system meltdown which spurs people to react. Like it has to get way worse before it gets any better. It’s horrible I know but I just don’t see any other way then for us to burn this whole fucking thing to the ground and then rebuild from the ashes up. I mean there isn’t a single aspect of this society which is functioning properly right now, it’s all broken, a total write off.

      • I wish you were right and your optimism is commendable, but did Cuba hit rock bottom in so many years? Or Russia, Lybia, China.. dictatorships tend to adapt, and get a little more tolerable for the surviving population.

        Chavismo already expelled about 4 Million of skeptics and unhappy opponents. They have less enemies, and as I suggested, more complicit allies everywhere than we might think. Many of the young that could got the hell out. They are still leaving. They know they can fight armed forces, as we saw in Caracas and Nicaragua more recently. Those thugs have the army, the guardia nacional and police. How many students died in Venezuela? I forget 300? Nicaragua was about 500, dunno. They just crush people, and people remember. Actually the abuse and intimidation happens every day at any stop sign, si no te bajas de la mula.

        Chavismo also has millions of complicit employees getting richer. Some more than others. Many had nothing before. The government and alcaldias, ministerios get really big, and many don’t do any except cash checks. So that adds to the unfortunate stability of the system. Pure corruption sharing a bit of the pie.

        The older people who didn’t leave, get older and tired. As the Cuban population did, with less mass exodus than us. And the young are born into the system, assimilated.
        With time, people get used to it, and the system is less shocking. Russia, China, Africa.. Children born this decade have known no other life than Chavismo. Like in Africa, they even get used to live hungry in terrible conditions. They are cut away from the civilized world and control by poverty. And they start begging for Clap food.. Also, the education gets much worse, and the communist indoctrination washes people’s brains, as we’ve already stated seeing, schools with no teachers and children forced to work for food instead of getting educated.

        The way out has to be by force, with guns. My only hope is that a few Generals have the guts and ability to recruit enough man power. Otherwise we’re looking at another Cuba, except quite bigger and with 30M oppressed and poor people.

        A people’s uproar and revolt has to have leaders. There’s zero true political opposition left in Venezuela. MCM? Capriles? MUD? Gone. Most of them probably bribed with hard cash and/or threats. Which is the main reason why Venezuela went to hell: massive corruption, at all levels, everywhere. Not just the “Chavistas” or “El Gobierno”. Venezuela is like Africa now, very hard to rescue in many places. Or like Nicaragua, heck even Haiti seems to be doing better.

        • I’ve always believed to expect the unexpected:

          History is filled with seemingly minor, unanticipated events that change everything. Castro never had a chance against Battista’s military, but that military just walked away.

          A natural disaster like a major earthquake, a political slash military move that pushes one of VZ’s neighbors too far, Maduro drops dead of a heart attack (he’s a prime candidate) and the infighting begins, or a general gets a leukemia diagnosis and decides to take him in out in a last-minute bid to get to heaven.

          Or Maduro pisses Trump off just a little too much, and Trump says enough is enough. (Remember that the U.S. is now minimizing its presence in the Mideast, and those soldiers need SOMETHING to do.)

          Yes, I believe in the big surprise. The one no one can anticipate.

          Like the election of my fantastic president!

          • Trump will build his wall to keep Venezuelans (watch tonight @ 8 EST) or whom ever, out. He’ll bitch about the shiteholes.. but to MAGA we need to keep them all out. If they keep coming he’ll cut off any funding, saving the American taxpayers. But he doesn’t have the backbone to do anything (just ask Anne), and he’s lost the support of the majority to do anything. Makes Obumma look strong. Venezuela is on its own. (tongue almost in cheek, and stirring the shite).

          • Just reflecting on your some general gets leukemia theory. Good one, I like that. Actually kind of surprised that some sick regular person who has the money but can’t find the medicine, hasn’t invested instead in a hand grenade (actually pretty easy to get your hands on here if you have the money) and gone to one of his rallies to get close enough to give him a hug.

    • “They care a lot more about oil prices, and Venezuela still helps in keeping the prices rather low…”
      You have this backwards. Venezuela help keep the price of oil high, and is propping up the other OPEC states like KSA. The US likes cheap oil, but not too cheap. Too cheap hurts the US domestic oil industry, which becomes a strategic geopolitical problem like we had in the 1970’s.

      Venezuela is single handedly keeping a large amount of oil off the market by (a) being unable to pump and refine oil, (b) being too corrupt to entice investment in oil production industry, (c) giving away what fuel they do produce countries that have no money, like Cuba.

  5. “What could happen on January 10, 2019?
    Nicolás Maduro’s term will expire and, at once, a new presidential term begins, with only the elected president assuming office (articles 230 and 231 of the Venezuelan Constitution).”

    And since when has the constitution been respected in 2 decades? If Maduro eventually gets tired of being president, Chavismo would appoint someone else. Remember, he’s just a puppet and an illiterate clown. Supported by the corrupt military. What happened when Chavez died? They designated a replacement. To stay in power. That’s what dictatorships do. Who even reads the Venezuelan Constitution, much less respect it anyway. It’s a lawless country . The most likely scenario in 3 days is Maduro will be even fatter after way too many arepas and hallacas. Cabello and the military want him to continue being a ‘tonto util’ – useful fool.
    He’s the most qualified for that role, while thousands of others continue getting very rich, under the radar.

    Also, some people tend to forget that many ‘generals’ and ‘officials’, countless Chavista politicians, are subject to jail terms if the regime were to change or if they left the country. Not many places for them to hide after so many crimes. Tarek, etc, etc – todos presos. The massive humanitarian tragedy will not be soon forgotten. They know they have to stay in Venezuela and hide behind the stupid Monkey named Maduro. And that includes the entire military, and millions of corrupt, complicit public employees. “Enchufados” is what we call them. Those that didn’t already leave with the millions they stole have reasons to stay and support Maduro. He doesn’t call the shots anyway, just a facade for the narco-regime, making tons of billions off the drug trade too, among countless mafias (financial scams, food scams, you name it)

    • This is the fourth time Ive tried to reply the fricken power keeps going out and I lose what Ive written. Oh and this last surge just took out all three 1000 watt high pressure sodium lamps that the building in front uses to light up it’s property, actually looks like it took out most of the blocks light bulbs except ours as I installed LED bulbs a while back. This is UNSUSTAINABLE. All of it. There are not enough people getting rich to keep Maduro in power. Even the 5 million public employees do not make enough to feed themselves let alone their families, they are practically working (if you can call it work) for free. The 2000 generals that are socking away loads of cash are not enough, the rest of the GN and police are also starving while canabalizing their own population. It HAS to come to a head. If even one of those TSJ Express fuckers grew a conscience, doesn’t that mean that there is hope? All those military and police have mothers and brothers and sisters and wives and friend who are suffering for one reason or another, will they not inspire conscience at some point? There is no quick fix, that I will admit but perhaps if we start somewhere it will grow and spread as truth and logic and justice have a habit of doing. We are WAY bigger than Cuba, in we are in the information age with social media and instant messaging. And Maduro is so fucking incredibly fat right now that even that is inspiring hatred for him from the masses. I think we just have to start small, with our own circles, educate and inform. Truth and justice must prevail.

  6. I can’t disagree with Guap’s take on things. And since the woman and I bust our asses for the benefit of the pueblo, then we too are part of the problem. Cannuckles, you listening? You finally got me.

    PS: Guap, I’d shut this thing down quicker than a cat can lick his ass but my woman simply will not stop working. It’s in her genes I guess.

    • Tocayo (yes I do realize your are not Marco Rubio) would you be willing to give me your Venezuelan phone number somehow privately so we can share (I get my hands on some interesting audio files and text now and again) via what’s app? I would like to be in more intimate contact with all of you guys that are here in Venezuela. I think we may be able to help each other out now and again, if not simply by sharing information. I think there is a storm coming and it would be mutually beneficial for all of us here who are going to have to weather it out.

      • I wouldn’t use whatsapp if I were you guys, it’s hackable (Israeli company sells the hacking software). I use “signal” when I need to communicate in real privacy!

      • Marc,

        I’ve got no problem speaking to you by phone. If the PTB read this message, you have my permission to pass along to Marc my email addy.

        Hope to hear from you soon Marc.

    • Apparently, the “do nothing” advice has been taken down by the CC thought police. Apparently too distasteful for polite company?

        • Crickets? Can anyone please explain why guapos suggestion about doing nothing and staying home got erased? Passive resistance is a taboo suggestion now? Sounds like someone hit a nerve and that is exactly what they don’t want anyone to do? Who is censoring these comments about and why? Can we please get an explanation or some sort of reiteration of what the rules of conduct are here?

          • IIRC, there is a constitutional right for workers to strike. That’s what Guap called for, but I guess he was too mean about it, or sumptin’.

  7. This is the best post in CC in quite a while. It is focusing on a solution rather than describing problems. Unfortunately, it is depressing topic.

    I plan to be useful and attend the protest at the Venezuelan consulate in Washington, DC on Thursday.

    Thanks Jose Ignacio Hernandez

  8. I don’t see a change coming.

    I read El Nacional. La Patilla. El Cooperante and a few others. Most of the stories are about people upset with lack of food, drugs, water, electricity, etc. etc. They throw garbage in the street, bang on pots and pans and whinge about empty bombas. And then the GNB shows up and everyone scatters. Rinse. Repeat.

    I see the stories on Aporrea about El Pueblo and their distaste for Maduro… but not Chavismo. “We want our subsidized Christmas hams! Where are our free toys? I want a raise! I don’t need actual freedom, but I demand my free stuff!”

    Where should a person outside of Venezuela go to read about the people who are FIGHTING for their freedom and dignity? I have asked innumerable times about the political party in Venezuela that ISN’T “Chavismo Lite”. Every single party is the same… offering more free shit in return for El Pueblo’s vote.

    I don’t see it happening. Most everyone in Venezuela, it seems to me, is waiting for Maduro to get a bullet and the next fraud to come along and bring back the Good Old Days of Chavismo. I can only surmise that it is the culture. Everyone is waiting for the reincarnation of Bolivar, when they should be pining for the next Thomas Jefferson.

    Meh. Call me an optimist…

    • “Everyone is waiting for the reincarnation of Bolivar, when they should be pining for the next Thomas Jefferson”

      That’s plain poetry!!!

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