Will Chávez be in shape to be sworn in as President on January 10th?

(First published on Axis of Logic on December 22, 2012)

After the electoral battles of October 7th presidential election and the regional elections of December 16th, in both of which the right-wing Venezuelan opposition was comprehensively trounced by the revolutionary forces of Chávez’s PSUV (United Socialist Party of Venezuela), the next political battle looks set to be a legal and constitutional one.

According to Article 231 of the 1999 Constitution of the Bolivarian Republic of Venezuela, the President elect – in this case Hugo Chávez – is due to be sworn in on January 10th before the National Assembly. However, what is the situation if he has not recovered enough from his cancer surgery to attend the swearing in ceremony?

This is the dilemma facing both the Venezuelan opposition and the revolutionary chavista forces in the short term. Will Chávez’s absence be declared as “temporary” by the National Assembly for 90 days, or will it be declared “absolute” thus forcing new presidential elections to be called within thirty days?

To declare the President elect’s absence as “absolute”, a medical commission has to be set up and the Supreme Court has to ratify the decision taken by the National Assembly as being constitutional. Nevertheless, there is another alternative which for many people came to light yesterday and was pointed out by the President of the National Assembly, Diosdado Cabello.

Here is Article 231 of the Venezuelan Constitution:

“The candidate elected will take up his/her post of President of the Republic on January 10th of the first year of his/her constitutional period by being sworn in before the National Assembly. If for any unforeseen reason the President of the Republic cannot take possession of his/her post before the National Assembly, he/she will be able to do it before the Supreme Court of Justice.”

Diosdado Cabello has expressed the opinion that there is no date given for being sworn in before the Supreme Court of Justice, so it could be later than January 10th. Another angle is that it does not state in the Article 231 that the swearing in has to be in Caracas. So could it be on Venezuelan territory in Havana, in the Venezuelan embassy there, with the 32 magistrates of the Supreme Court travelling to Cuba to attend the swearing in?

Whatever the situation, the Supreme Court will have to decide if such legal “manoeuvers” are within the spirit of the Venezuelan Constitution.

Cabello argues that the results of a democratic election cannot be set aside based on the fact that the President of the Republic does not attend his swearing in on a specific day since this would override the will of the people, when Article 231 is open to legal interpretation and does not allow for any “unforeseen reason”.

This is an excellent point especially when one should bear in mind that the Preamble to the 1999 Venezuelan Constitution maintains that Venezuela is a “participatory and protagonic” state where the participation of the population or people is paramount. This is the spirit of the 1999 Constitution, so should it be overridden by a word for word interpretation of Article 231 and elections called because Chávez cannot make it on time to be sworn in?

Cabello also mentioned a case, without giving specific details, that the Supreme Court had on one occasion allowed an elected mayor to take up his post three months after the constitutional swearing in date. This is a precedent and could be used as a legal argument in favor of postponing Chávez’s swearing in for some time.

Obviously the opposition and its media are now crying from the rooftops that if Chávez does not attend the swearing in ceremony before the National Assembly in Caracas on January 10th then elections must be called within 30 days since Chávez’s absence is “absolute”.

The moral seems to be if you cannot win at the ballot box, then any other means are valid. This is clearly the case since the Venezuelan opposition’s ONLY GOAL IN LIFE is to unseat Chávez whether it be by a coup, a referendum, at the polls or in this case with a constitutional coup.

At the time of writing (December 20th) President Chávez is still convalescing in Havana and could, in fact, make it to Venezuela by January 10th and thus scotch any possible controversy. However, this is not definite by any means so the debate will continue about when and where he can be sworn in just in case he cannot make it back by January 10th or if he is too sick to take up the post due to his illness.

We await further developments in the coming days.