Chávez's absences

Exactly one year ago, June 10, 2011, President Hugo Chávez got emergency surgery of a "pelvic abscess" in Cuba; news that was disclosed that same day by Foreign Minister Nicolás Maduro, through a press release. Since then, the Head of State has been under medical treatment for 114 days. It is worth noting that he has spent 108 days in Havana. Additionally, he has traveled to the Caribbean island at least 12 times in order to be operated on three times and also initiate a three session chemotherapy and a six session radiotherapy.

During this period of time, the Hugo Chávez known by Venezuelans for his constant and endless broadcasts on the media, just vanished from the public eye without a trace. This has spread scandals relative to two basic yet fundamental questions: whether the Head of State is fit to rule and if his absences from the national territory should be filled by Executive Vice-President Elías Jaua. The answers are depicted in the Constitution of 1999, according to experts.

First thing to take into consideration is that the president's health is "a State matter" and, therefore, in the national interest. It concerns the citizen entrusted by the Constitution (Article 226) and voted by Venezuelans with the mission of leading the country destiny. That is why his medical condition should not be kept under wraps; his health status will determine the existence of temporary or absolute absence in office and, as appropriate, the mechanism of a presidential substitute would be activated, as set forth in the Constitution to prevent power vacuum.

As asserted by specialist in Administrative Law and Professor of Graduate Studies at the Faculty of Law, Andrés Bello Catholic University (UCAB), Víctor Hernández, the Head of State is a high-ranking public officer. As the top representative of the Executive Power, he must report on his health status to the National Assembly (AN). Pursuant to the Constitution, (Article 187, Number 3), the AN is in charge of exercising "control functions" on the government.

Sadly, such control has not materialized because "there is really no separation of powers" in Venezuela, constitutionalist lawyer Rafael Chavero affirms.

Now, therefore, Chávez's medical status may be determined by specialists only. Nevertheless, since Venezuelans have no access to information regarding the specific diagnosis and the consequences of conducting a legal analysis of the matter, it is quite understandable to suppose that as any cancer patient- the Head of State is advised to rest during his convalescence, in the opinion of some oncologists queried about the effects of  the disease.

Therefore, one wonders how long President Hugo Chávez has been resting and how longer he ought to rest.

The president's sick leaves

Opposition deputy Carlos Berrizbeitia (Carabobo state) handles a different number from the previously indicated which includes, besides the days of treatment, the rest periods that the Head of State has had inside and outside the country up to early April 2012. According to his own maths, "from May 11, 2011 (when the president experienced some pain in one of his knees) to April 8, 2012, President Chávez has spent 200 days in sick leave or admitted to hospital. "This number was presented by the parliamentarian during the AN plenary session held on April 14, 2012 to authorize one of Chávez's trips to Cuba. Add to this  the president's three subsequent trips in April and May, 2012, in order to continue his recovery in Cuba, where he stayed additional 27 days. This amounts to a total number of 227 days in sick leave, including treatment.

Against this background, the most radical views claim that due to the evident absences of Chávez relative to his trips to the Caribbean island, the Vice-President should take over in order to avoid a leaderless country. However, government spokesmen oppose to this option. Even the very Elías Jaua told last February 23 state-run channel Venezolana de Televisión,  "(The president) is absolutely able -both mentally and physically- to continue his agenda ruling the country (... ) The Constitution by no means establishes a mechanism to decree the temporary absence."

Effectively, the Constitution does not establish the need to fill the president's temporary absence, but it does indicate expressively the appropriate steps in the event of temporary and absolute absence. In this context, a distinction must be made between temporary absence and absolute absence. From a constitutional perspective, both terms may not be used as synonyms; both terms are totally distinct from each other and can even converge at the same time.

The absence stands for the non-physical presence of the Head of State within the geographic limits of the Republic. This takes place when, for instance, he/she travels to foreign countries in order to sign bilateral agreements. Chavero highlights that in such cases, the President should be completely able to fulfill his/her duties.

The Supreme Regulation (Constitution) does not envisage in these cases the replacement by any other government official. The only thing that it points out, in its Article 235, is that the Head of State must require the authorization from the National Assembly when his absence "lasts for a period of time longer than five consecutive days." To picture this more clearly, Chávez may travel to Cuba for a shorter period of time without the need to request for permission or delegate powers. Nevertheless, if his/her trips take longer than the established period, in the request, he/she must provide an estimate of the time abroad so that the Parliament reaches a decision, as appropriate.

That is the reason why the constitutionalist opposes to the fact that President Chávez is granted permits with no pre-established periods like the one granted in the AN plenary session held on February 23, 2012 for him to travel to Cuba for a third surgery.

The temporary absence, instead, implies the Head of State's inability to perform his function for a certain period of time, regardless of being inside or outside the country. The Constitution does not indicate the cases in which this sort of absence can be decreed. It only stipulates (Article 234) that any absence "shall be filled by the Vice-President up to 90 days, which term may be extended under a decision of the National Assembly for additional 90 days." In such case, the substitution is produced automatically without the Vice-President being sworn in.

In light of the omission in the Constitution of the assumptions which determine the temporary absence, there is a wide range of possibilities including physical or mental incapability (sick leave)- to regard a potential presidential vacancy as temporary. For such reason, it is appropriate to assert that every time that Chávez travels to Cuba in order to get a checkup, a temporary absence is produced. Still, the cause is not related to his absence from the Venezuelan territory but because his disease and the treatment he needs to follow, make it difficult for him to continue fulfilling his obligations as head of the National Executive.

"President Chávez was not able to perform his functions when he was inside the operating room, or the subsequent hours when he was probably sedated and being administrated a large amount of drugs," points out the constitutional expert to picture the scene.

With regard to the absolute absence of Venezuela's President, the only way to go is that a medical board designated by the Supreme Court certifies the "permanent physical or mental challenges" of the President and also it must be approved by the National Assembly. It is worth noting that these are a must contemplated in the Constitution (Article 233). If things were to take this road, the burden of substituting Chávez would also fall on Vice-President Elías Jaua, who should complete the constitutional period and deliver the baton -in 2013-to the winner on October 7 election.

Changing the subject, if Chávez wins the presidential election and the absolute absence takes place during the first years of his new term in office, then a new election process will have to be initiated within the 30 next consecutive days; but while the new Head of State is elected and assumes office, the Vice-President would take over.

The constitutional fraud

The government has used the premise of the absence so far and has refused to decree the temporary absence despite the fact that Chávez has been on a medical treatment for 114 days, which has ended up in a "constitutional fraud," according to Chavero.

To his mind, the declaration has not materialized because of the "fear experienced (by Chávez's followers) relative to designating the Vice-President on a temporary term and if by any chance more than the 90 days established in the Constitution pass, they would have to ask for a time extension and then the National Assembly will be forced to decree the absolute absence."

The constitutionalist warns that whenever the President's absence surpasses the reasonable limits, there could be the chance of stating the temporary absence and even the absolute absence in case that more than 180 continued days pass. However, he is certain that in Chávez's case, the temporary absence is mainly presumed by his remarks on his health status and by acknowledging that he must take "the warrior's rest." As he expressed it last April 13 from the so-called Balcón del Pueblo (People's Balcony): "It is not an easy task to rest for someone like me who has always fought the whole life (... )I must be disciplined."

Everything seems to indicate that there is not an only one temporary absence but many which have taken place during the previous year as a consequence of Hugo Chávez's disease. Nevertheless, what the Constitution establishes regarding the presidential substitution has not been observed. And in light of it, official spokespeople insist on saying that Venezuela's President is in good standing to rule and to run for reelection.

Twitter: @alejandramhf

Translated by Adrián Valera Villani