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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