Ten rules for a transition
Experts in the subject agree that the Presidency take-over must take place on January 10, 2013 and inside the national territory. If by any chance, the Head of State is not able to attend it, President of the National Assembly is called to lead an interim government. The following questions and answers provide clear information regarding the political scenery of these days
CAN THE PRESIDENCY TAKE-OVER BE POSTPONED?
The Constitution of the Bolivarian Republic of Venezuela establishes in article 231 that "the candidate-elect shall take over the presidency on January 10 during their first year in term, under oath at the National Assembly." The constitutionalist lawyer and director of the Judicial Investigation Institute of Andrés Bello Catholic University (UCAB), Jesús María Casal, indicates that "if the Head of State (President Hugo Chávez) does not show up at that moment, it would be confirmed that he is not able to take office in his next term."
MUST THE PRESIDENT BE SWORN IN FACE-TO-FACE?
Article 231 of the Constitution clearly states that the president-elect must be sworn in by the National Assembly or, at least, by the Supreme Tribunal of Justice. Professor of Law School of Central University of Venezuela (UCV), Gustavo Linares Benzo, indicates that "article 18 of the Constitution asserts that no president can rule outside the country." Therefore, there are no legal mechanisms or special powers to take office from a foreign country. Based on the same article, Linares Benzo adds that any decisions and decrees signed outside the country are null and void.
IS THE VENEZUELAN PRESIDENT BOUND TO INFORM ABOUT HIS HEALTH STATUS?
Lawyer Gustavo Linares Benzo, convinced that the president's health condition is not a secret or a taboo, warns that the Constitution demands to provide information regarding subjects which bring consequences on a collective scale. He remembers that article 58 establishes the right to have access to "transparent, impartial, timely information." Linares points out that article 57 "forbids censorship for public workers to render accounts about the matters of their expertise," and as if it was not enough, he adds that article 51 enables any citizen to make requests concerning public matters in order to receive an appropriate and timely answer.
WHO IS ASKED TO DECREE PHYSICAL OR MENTAL INCAPABILITY?
A medical board must certify any physical or mental incapability that may make the President unable to rule. Article 233 of the Bolivarian Constitution claims that such group of experts must be designated by the Supreme Tribunal of Justice and count on the approval given by the National Assembly. Nevertheless, he does not mention either the number of participants in such a group or the credentials that participants must have. Constitutionalist lawyer Gustavo Linares Benzo indicates that anyone can make an appeal if they consider that there are defects regarding the selection of physicians.
HOW LONG MAY THE HEAD OF STATE BE ABSENT?
No President of a Republic may be absent longer than six months. The Constitution states that a President's temporary absences may not be longer than 90 days, extendable for 90 additional days. Constitutionalist lawyer Gustavo Linares Benzo believes that article 234 is not transparent enough, when it comes to stating the obligation of the National Assembly to declare the first temporary absence. However, it expresses that the extension must indeed be supported by the Legislative Power: "If a temporary absence lasts more than ninety consecutive days, the National Assembly will decide –by majority of its participants- if it has to be considered an absolute absence."
WHAT AND WHICH IS THE RANGE OF A TEMPORARY ABSENCE?
The Constitution establishes six events of a President's absolute absence: death, resignation, abandonment of position, removal from office, recall by popular vote and physical and/or mental incapability. It does not specify, however, the scenarios to decree a temporary absence. Constitutionalist lawyer and professor of the UCV, Gustavo Linares Benzo considers that a disease may well lead the temporary absence list. "If a surgery for treating cancer is not a reason to decree this, then which would be those reasons?" he wonders. "In this case, the Vice-President would be in charge and the President's acts are null and void during his absence period."
WHO TAKES OFFICE IN THE EVENT OF ABSOLUTE ABSENCE?
When it comes to a new presidential term, constitutionalist lawyers agree that the deputy in charge of the National Assembly is called to lead an interim government. Whereas, if we are speaking of an office term in process, article 233 of the National Constitution enables the Vice-President to stay in charge of the Executive Power. On the contrary, when we are speaking of a temporary absence, article 234 points out that the Executive Vice-President of the Republic would also become the Head of State and therefore would become the highest authority in the country during the transition.
DOES THE CNE HAVE TO CALL ELECTION IN CASE OF AN ABSOLUTE ABSENCE?
The Constitution indicates in article 233 that "a new election by universal suffrage and direct ballot shall be held within 30 consecutive days," whenever an absolute absence takes place, either before the President taking office or during the first four years in elected office-." This does not only covers the fact of the need to call a new election in a month's time. Constitutionalist lawyer and professor of Andrés Bello Catholic University, Jesús María Casal, maintains that the Bolivarian Constitution expresses that the electoral Power is bound to hold election within the aforementioned term.
WHAT IS THE ROLE PLAYED BY THE BOLIVARIAN ARMED FORCES (FAN) IN CASE OF A TRANSITION?
The Bolivarian Armed Forces count on no special powers in case that a temporary or absolute absence is declared. If there was a transition, the President in charge would then become Commander in Chief. In that case, the Electoral National Council is requested to trigger elections and, as it has been the case in the past, the Law on Electoral Processes entrusts the Republic Plan (Plan República) to military officers: "The Bolivarian Armed Forces will offer support to the Electoral Power, by ensuring voters' security, maintaining order, custody, transporting and protecting the material used in the election."
MAY THE VICE-PRESIDENT PUT HIMSELF FORWARD AS A CANDIDATE?
Only the President of the Republic is allowed to seek reelection without the need to resign. All other national and state representatives are bound to resign from their positions in order to run for President. That is expressed in the National Constitution in article 229: "A person holding the office of Executive Vice-President, Minister or Governor, or Mayor, as of the date he announces his candidacy or at any time between such date and that of the Presidential election shall not be eligible for election to the office of President of the Republic."
Translated by Adrián Valera Villani
That political protest in Venezuela has lost momentum seems pretty obvious: people are no longer building barricades to block off streets near Plaza Francia in Altamira (eastern Caracas), an anti-government stronghold; no new images have been shown of brave and dashing protesters with bandanna-covered faces clashing with the National Guard in San Cristóbal, in the western state of Táchira; and those who dreamed of a horde of "Gochos" (Tachirans) descending in an avalanche to stir up revolt in Caracas have been left with no option but to wake up to reality.