Chávez's inauguration in Venezuela postponed. Is that legal?

Venezuela has been thrown into uncertainty over who should become president tomorrow, what the Constitution dictates, and what is against the law.

Hugo Chávez won a fourth term as president of Venezuela in October, and tomorrow, Jan. 10, was his scheduled inauguration. But the leader, who has been in office since 1999, is unable to appear before the nation to assume office. He has been in Cuba since his December cancer surgery there, and is facing a recovery deemed “complicated” by his government. Venezuela has been thrown into uncertainty as government allies and opposition figures face off over who should become president on Thursday, what the Constitution dictates, and what is against the law.

Is it unconstitutional for the inauguration to be delayed?

Allies of President Chávez say the inauguration can legally be delayed, arguing that the swearing-in is only a “formality.” They argue that Chávez maintains his post as president and will be sworn in later, in front of the nation's supreme court, when he is physically ready. The opposition earlier sent a letter to the Organization of American States (OAS) saying that his absence would be "a serious constitutional violation” and that the supreme court should weigh in. The Roman Catholic Church also accused the government of bringing instability to the country. Critics say that, under the provisions of the Constitution, the president of the national assembly should take office temporarily if Chávez does not appear Thursday. Simply maintaining “continuity” of the current administration is illegal, they say. 

“There is one strict date that cannot be modified,” says Luis Salamanca, a professor of constitutional law at the Central University of Venezuela in Caracas. “A new period is ending, and another one is beginning.” Mr. Salamanca says the swearing-in is more than just a formality.

It is the moment of the inauguration that “Chavez would be granted the legal authority to be president,” he says.

What exactly does the Constitution say?

There are three relevant articles of the Constitution that apply to this case. Article 231, translated by the BBC in English here, reads:

The president-elect shall take office on 10 January of the first year of their constitutional term, by taking an oath before the National Assembly. If for any reason, (they) cannot be sworn in before the National Assembly, they shall take the oath of office before the Supreme Court.

Article 233 defines the “absolute absence” of the president as:

His or her death; resignation; removal from office by a Supreme Court judgement; permanent physical or mental disability certified by a medical board appointed by the Supreme Court and approved by the National Assembly; abandoning office, as declared by the National Assembly; and revocation by popular vote.

It goes on to say:

When there is an absolute absence of the president-elect before taking office, there shall be a new election by universal, direct and secret vote within the next 30 consecutive days. Pending the election and inauguration of the new president, the president of the National Assembly will assume responsibility for the presidency of the Republic.

If the absence of the president of the Republic occurs during the first four years of the constitutional period, there shall be a new election by universal, direct and secret vote within 30 consecutive days. Pending the election and inauguration of the new president, the executive vice-president will be responsible for the presidency of the Republic.

Finally, Article 234 says: “When the president is temporarily unable to serve, [he/she] shall be replaced by the executive vice-president for a period of up to 90 days, which may be extended by resolution of the National Assembly for an additional 90 days.”

So why all of the divided views?

While the Constitution describes what should happen if the inauguration is missed, and what to do if a president is “permanently absent,” it does not define what to do in the case of a temporary absence in a moment of transition. As a microcosm of the polarization that has marked the Andean nation under Chávez's leadership, the views of what should happen vary widely. Allies of Chávez argue that the opposition is using his delicate health to take the presidency away from him, undermining the clear wishes of a citizenry who reelected Chávez in Oct. 7 elections.

The opposition says that the Chávez government is violating the Constitution for political purposes. Instead of naming the national assembly leader as temporary president, they have called for a rally on Thursday to underline the support for Chávez. Part of the motive may be timing, Salamanca says, to give Vice President Nicolas Maduro, Chávez's preferred successor and the person who is in charge while Chávez is absent, a chance to become a more well-known political figure if new elections are eventually called.

It may also simply be a reflection of the inability to foresee a Venezuela without Chávez at the helm. As Venezuela expert David Smilde points out in his blog, Venezuelan Politics and Human Rights, hosted by the Washington Office on Latin America, “taking the plunge to start making moves for a chavismo without Chávez is no small step."

Ironically, says Ricardo Sucre, a political analyst in Caracas, this goes against what Chávez said in his last public appearance: That should Chávez not be able to run the country, Mr. Maduro was his preferred candidate in new elections. “Chávez himself stuck to the letter of the Constitution,” Mr. Sucre says.

Will condemning the Chávez administration as unconstitutional backfire for the opposition?

The Chávez administration is facing criticism for postponing the inauguration. Christopher Sabatini, editor in chief at Americas Quarterly, points out: “Repeatedly this government has bent the Constitution in a way that may not violate the letter of the Constitution but does violate its spirit. This is no exception.”

But the situation could also backfire for the opposition, especially its appeal to the OAS. As Mr. Smilde writes: “In appealing to the OAS the opposition may run counter to public sentiment.”

The fact that their sick president cannot come for his swearing in generates sympathy for his condition, not rage at the violation of abstract rules.… For the average Venezuelan, the opposition’s taking the issue of Chávez’s swearing in to international institutions makes them look like they are trying to take advantage of the situation. It only reinforces the popular image of them as people who use democratic formalities for their own interests and feel more comfortable abroad than at home.

What happens after Jan. 10?

Lawmakers are also calling for immediate transparency in the health of Chávez, to assess whether hs is "temporarily" absent from Venezuela or whether he is going to be "permanently" absent. He was diagnosed with cancer in the pelvic area in 2011 but the type, stage, and his prognosis have yet to be revealed. After declaring himself cured, Chávez suffered a recurrence and went to Havana in December for a fourth surgery. 

No one has heard from him since.

His government and family have sent conflicting reports: some saying that he is stable and recovering, others that his situation is precarious. “The first thing that should happen is [that] the nation should have a discussion about why exactly Chávez is absent, and whether this absence is temporary or permanent,’ says Sucre.

Freedom House echoed that sentiment.

“The people of Venezuela deserve a transparent explanation of the President’s state of health to determine if, and when, new elections are necessary. Prolonged uncertainty about who will be the next Venezuelan president is unacceptable,” said David Kramer, president of Freedom House, in a statement.