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Venezuela: Legal Stand-Off Over Chávez Absence

Venezuela has returned to the forefront of the political debate scene after leaders of the government claimed President Hugo Chávez will no longer hold the presidency captive after of January 10, 2013.

Discussions revolve around Chávez's eligibility to be sworn into office after this date and in such a case whether or not a permanent or temporary vacancy should be declared as stated in articles[es] 231, 232, 233, 234 and 235 of the Bolvarian Republic of Venezuela's constitution.

Attorney José Ignacio Hernández shares his analysis on Prodavinci of how these five articles should be interpreted in light of President Chávez's illness:

To read the Constitution is a difficult and delicate task because such constitutional provisions determine presidence, establishing the principals and values with which scope and meaning are interpreted.

Let me be clear: it is not that a literal interpretation of the Constitution should be entirely dismissed. Nor am I inclined to support the notion that the provisions granted in the Constitution are flexible and elastic. The Constitution, in entirety, is regulatory in nature, establishing rules of conduct that should be interpreted in accordance with the Constitution, without distortion of its meaning, the repercussions of which would result in a parallel constitution of sorts.

José Ignacio Hernández proposes declaring a temporary absence for the President, a provision he believes fully established by the Constitution.

Presidente Hugo Chávez Frías. Photo by Flickr user !Que comunismo!, under the Creative Commons license agreement (CC BY-NC-SA 2.0).

In response to the recent debate, Venezuelan citizen José Gómez Barata submitted his perspective to the Aporrea opinion pages. There he explains that the time and place of the presidential inauguration will remain secondary so long as the authorities are involved:

 Article 231 of the Venezuelan constitution states- without any general doubt or margin of creative interpretation- that: “The elected candidate will be sworn in as the President of the Republic on the 10th of January in the first year of his or her constitutional period, under Oath before the National Assembly…”

A cautionary provision immediately follows. “If, for whatever reason, the circumstance suddenly arises where the President of the Republic is not able to be sworn in before the National Assembly, he or she is to be sworn in before the Supreme Court”.

The secondary guideline precisely notes “sudden” instances, meaning unexpected or unforeseen and as such should be impossible to legislate. The text establishes no place, date, or extensions, things that consciously leave constituents at the discretion of the concerned authorities: the National Assembly, the Supreme Court and the President who, in mutual agreement, should enforce the mandate. In this case what is in accordance with the substance of the law and that which is legally binding is that the president take office before the mandated authorities. The means and timing are secondary.

However, for Daniel Pratt in his post on the Panfleto Negro page, this question of interpretation has created a deep divide in Venezuelan political life:

The problem for the chavistas [Chávez supporters], and Venezuela as a whole, is that they believe in democracy and the Republic only when they win the elections. If they lose or if an obstacle presents itself, no one has a problem violating the people's will (I repeat: all Venezuelans, no just chavistas). In fact, this instance and its absurd interpretations of the Constitution (from both sides), reveals that even more than republicans and democrats, Venezuelans are actually majorically monarchists.

Strong arguments are heard noting the general lack of information present, despite the more than 25 medical reports that have been published regarding the President's condition since the beginning of his health battle in June 2011:

We have no idea what he's actually sick with. Absolutely no party has specified cancer. The only thing they have said is “malignant cells” and “pulmonary infection.” For all we know, he could have cancer, AIDS, Lupus, pneumonia or bronchitis.

But on Twitter, the majority of the discussions have revolved around the distinct interpretations and their implications for the political climate in Venezuela.

LaDivina Diva (@ladivinadiva) claims that Venezuela's Ocober 7th elections were simply for President Chávez and no one else. Otherwise, to talk of an indefinite absence now would have been completely unfeasible:

 ‏(@LaDivinaDiva): The Venezuelan people voted for Chávez, not for “whatever chavista was available.” To indefinitely prolong an absence is not legal nor is it a viable option

But Ángel Dueñez (@AngelNoez) considers that while the reasons the Supreme Court levies may or may not be please the people, the Court is ultimately who has the final say:

‏(@AngelNoez): Like it or not, the Court is the ultimate interpretation of the Constitution. WHAT'S DONE IS DONE.#6AñosMas

Alonso Moleiro (@amoleiro) questions the invalidity of issuing a temporary absence, and in turn, the consequence if Diosdado Cabello of the National Assembly were to assume an interim presidency:

‏(@amoleiro): I would love for a chavista to explain to me- without insulting me- why @dcabellor can't serve as interim President while we wait for Chávez #Constitución

For José Montilla (@datobinario) the current crisis in Venezuela is not about the defense of the Constitution but the interests of the various sectors that make up the political life in the country:

(@datobinario): In the end, no one is defending the constitution or its legality, only political interests defending themselves.

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