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Venezuela: President of the National Assembly Cites Constitutional Basis for Assuming Office the Presidency on an Interim Basis

(Jan. 31, 2019) On January 23, 2019, the president of the Venezuelan National Assembly, Juan Guaidó, declared that he was assuming the office of the presidency on an interim basis on the basis of article 233 of the Venezuelan Constitution. (CONSTITUTION OF BOLIVARIAN REPUBLIC OF VENEZUELA [CV], Dec. 30, 1999, as amended, art. 233 (in Spanish).) Article 233 refers to the president’s “absolute absence” (faltas absolutas), or permanent unavailability to serve, for reasons of death, resignation, physical or mental incapacity, abandonment of office, or the popular revocation of his mandate. (Id.) Under article 233, the Parliament may declare the president absent from office, thus requiring that a new universal, direct, and secret election be held within the following thirty consecutive days. In the meantime, the President of the National Assembly is to serve as the interim president of the republic. (Id.; Crisis in Venezuela: The Provisions Guaidó Relied on in Taking the Oath, EL MUNDO (Jan. 24, 2019) (in Spanish).)

Although President Nicolas Maduro has not actually been absent, the presidential election held on May 20, 2018, is widely regarded as fraudulent. (Is Guaidó’s Proclamation Legal?, LA VANGUARDIA (Jan. 24, 2019) (in Spanish).) The May election was convened by the Constituent Assembly created and controlled by Maduro in violation of the constitutional process. (Id.) The opposition never recognized the May 20 elections.  Article 231 of the Constitution provides that the elected candidate is to “take office on January 10 of first year of its constitutional period.”  Insofar as Maduro’s election violated the constitutional process, his constitutional period ended on January 9, 2019.

Another provision of significance to Guaidó’s proclamation is article 333 of the Constitution, which protects the Constitution in case it ceases to be observed by an act of force or because it is repealed by any other means than the one foreseen therein. (CV art. 333.)

This provision empowers every citizen, vested or not with authority, with the duty to support the restoration of its effective validity if the Constitution is being infringed. (Id.) The opposition accuses Maduro of infringing the Constitution by violating human rights, imprisoning political opponents, and infringing the rule of law, thereby turning his government into a dictatorship. (Crisis in Venezuela: The Provisions Guaidó Relied on in Taking the Oath, supra.)

Juan Guaidó has the support of the United States government and the Organization of American States, with the exception of Mexico. While some of its member countries have recognized Guaidó’s interim presidency, the European Union (EU) has up till now taken a more cautious stance, stating that “it supports the National Assembly as the democratically elected institution whose powers must be restored and respected.” (Is Guaidó’s Proclamation Legal?, supra.) However, after Maduro refused the EU’s request to call elections, the European Parliament has scheduled a vote for January 31, 2019, on a resolution recognizing Guaidó as interim president. (The European Parliament Will Recognize Juan Guaidó as President of Venezuela, RTVE (Jan. 30, 2019).)

At the time of his proclamation and oath, Guaidó cited article 350 of the Constitution, which empowers the Venezuelan people, out of fidelity to their republican tradition, to “disown any regime, legislation or authority that violates democratic values, principles and guarantees or undermines human rights.” (CV art. 350; Crisis in Venezuela: The Provisions Guaidó Relied on in Taking the Oath, supra (translation by author).)

This information is current as of January 30, 2019.