Patently Obvious Chronicles

/ January 8, 2013
Magistrate Francisco Carrasquero

Magistrate Francisco Carrasquero

The trouble with the past is that it already happened. Take, for instance, this decision by the rojo, rojito Supreme Tribunal of Justice, dated May 26th, 2009 which touched on the suddenly all-so-topical question of whether you can exercise an office that you haven’t been sworn into. (The case in question dealt with the governorship of Carabobo State rather than the presidency, but the principle is the same.)

On that occasion, the most august Magistrate Francisco Carrasquero, ruled that:

“…resulta patente que el acto de juramentación del jefe del ejecutivo estadal constituye una solemnidad imprescindible para la asunción de la magistratura estadal y, por tanto, condiciona la producción de los efectos jurídicos…”

To wit:

“…it is patently obvious that the act of swearing in the head of the state executive constitutes a required solemnity for assuming the leadership of a state government and, therefore, is a condition to producing its legal effects…”

En efecto, son varias las cosas que resultan patentes…

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87 thoughts on “Patently Obvious Chronicles”

  1. Just to rejoin that swearing in of the US VP King in Havana, he was sworn in 20 days after he was supposed to but he was legality still VP.

    Rojo Rojito

    Cort

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    • So, something that happened in 1848 in the US is more relevant to the meaning of the Venezuelan Constitution than a decision of the Supreme Tribunal of Venezuela, dated 2009, interpreting Venezuelan law?

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      • Again, I’m not a lawyer, but if I was Cort I guess I would note this 2009 decisions wasn’t one where the court was asked to rule specifically on whether Taking the Oath is necessary to assume the powers of office. The court was dealing with a separate question and Carrasquero, in the process of developing his argument on that other question, throws in this phrase almost as an aside.

        Of course, it’s also clear from the way the argument is constructed that Carrasquero finds this doctrine so self-evident as to not merit any further elaboration or discussion.

        That’s what “resulta patente” means in this context, isn’t it? “I won’t waste your time developing an argument to support this because this is so uncontroversial it isn’t worth the trouble.”

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        • Moreover, the doctrine of stare decisis exists on Constitutional matters in Venezuela meaning that the Constitutional Chamber is binded by its own precedents by virtue of article 335 of the Constitution(another formality)
          Artículo 335. El Tribunal Supremo de Justicia garantizará la supremacía y efectividad de las normas y principios constitucionales; será el máximo y último intérprete de la Constitución y velará por su uniforme interpretación y aplicación. Las interpretaciones que establezca la Sala Constitucional sobre el contenido o alcance de las normas y principios constitucionales son vinculantes para las otras Salas del Tribunal Supremo de Justicia y demás tribunales de la República.
          Then chavismo is binded to appoint Diosdano not only by the Constitution they wrote, but also by the interpretation done by the Justices appointed by them.

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          • CACR, while what you say is right the operative principle for that rule to apply is that the court was asked to interpret a constitutional norm. These are special decisions and not everything the constitutional chamber does falls within that category. This may be one of them but more information is needed.

            The preamble will have information about the matter and what type of decision it is and that should clarify whether its binding precedent.

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  2. So we actually have a decision which decides authoritatively whether the Constitution says what it appears to say. (It does!) Congratulations to your legal research team!

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    • Is not that simple. Any country in the world has a Constitutional Chamber to deal with “lapsus” and “gaps” in the constitutional text.

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      • I think Jeffry is just pointing out that this is emphatically neither a lapsus nor a gap, as it’s written right there in black-on-white in article 231. Pero por si quedará duda, que no queda, Carrasquero la aclaró.

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        • I agree.
          BTW you should link the decision to the original TSJ. The one that you put is a bit slow, and “unofficial”.

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  4. Without delving further and seeking the fifth paw of the cat, howcan I possibly acknowledge that you’re president of anything at all if you weren’t ever sworn in? If a guy wins an election but, for wahtever reason, never gets round to being sworn in, how can he possibly take up the post?

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  5. I heard an interesting argument from diosdado on the 5th of January, asking whether if an election is held in February because the president died, one must still wait until next 10th of January, 11 months, before swearing or taking office. Think of it specially if opposition wins. Is there any clear consideration on this in the constitution? Can this argument flexibilize our perception on the inflexibility of that date?

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    • Jan. 10th is the date when a FRESH periodo constitucional starts following a regular election. If a snap election needs to be called following the permanent absence of the president, a Fresh period does not start.

      Instead, in such a case the new president COMPLETES the Periodo Constitucional already in progress.

      Art. 233 is clear in this regard – Cuando se produzca la falta absoluta del Presidente o Presidenta de la República durante los primeros cuatro años del período constitucional, se procederá a una nueva elección universal y directa dentro de los treinta días consecutivos siguientes. Mientras se elige y toma posesión el nuevo Presidente o Presidenta, se encargará de la Presidencia de la República el Vicepresidente Ejecutivo o Vicepresidenta Ejecutiva.

      En los casos anteriores, el nuevo Presidente o Presidenta completará el período constitucional correspondiente.

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      • They (the ones who wrote the constitution) should have written it the way you wrote it, i.e., “COMPLETES the Periodo Constitucional already in progress” instead of “completes the corresponding period”. Although the word “completes” may seem to make both sentences equivalent, it still leaves open the interpretation that the “corresponding period”, would be one starting in January 10th, 2014 (to be completed in January 10th, 2020). And by the way, this interpretation would be consistent with article 231.

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        • It doesn’t matter if the new president completes the constitutional period or not. He still must be sworn in at some point. According to Toro’s interpretation of Article 231, that can ONLY happen on January 10th. Whoops!!

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          • Although I agree it is absurd to force the swearing on January 10th beyond other considerations, article 231 does say the swearing must take place on that date before the national assembly, although it is doesn’t say in a clear way anything about the date it must take place if the swearing is before TSJ.

            In any case, if one insists that article 231 forces the president to take the oath on “January 10th of the first year of his periodo consitucional”, AND the “corresponding period” mentioned in article 233 is the one in progress, then one is lead to the absurd conclusion that the new president elected under article 233 must travel back in time to take the oath!!

            Something has to give.

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  8. Of course the swearing-in cannot just be forgotten about. No one is saying that. But in the case the president is not able to be present, “motivos sobrevenidos”, it is obvious (to anyone with common sense) that the circumstances are different.

    No where does the ruling you quote here say anything about what should happen in the event the candidate cannot be physically present for the swearing-in. That is obviously a different situation, and neither the judge, nor the constitution say exactly what should happen. However this ruling does restate what the constitution says in the event of special circumstances:

    “cuando tal actuación no fuese posible, debería procederse a la juramentación ante un Juez Superior de la Circunscripción Judicial.”

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    • Right, but you still have a problem with the fact that, as Carrasquero notes explicitly, Taking the Oath “conditions the production of juridical effects” – no oath, no effects. As of January 10th, if nobody takes the oath of office, nobody can exercise the powers of the presidency.

      If Chávez is unable to swear the oath, he is not president.

      This isn’t some CIA conspiracy, this is the rojo-rojito TSJ’s interpretation of the rojo-rojita constitution…

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      • Yes, the only possible interpretation is that if Chavez doesn’t take the oath he suddenly is not president… Seriously, listen to what you are saying.

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        • Chavez is the president-elect. No one argues that. But until he takes the oath he can’t exercise the presidency in his new term. Get it? According to the constitution and according to the 2009 TSJ ruling. Why is that so hard to accept? The guy taking over is also chavista and not of my liking but that’s what the rule book says we should be doing.

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          • To me, if chavismo really does want to keep the option open of swearing Chávez in within the next 180 days, they need to declare a temporary absence on Wednesday, and announce Maduro will be Presidente Encargado for 90 days while Chávez recovers (leaving the possibility open of extending this a further 90 days if needed).

            This is what the Brazilians are urging, and seems a lot less crazy than this continuismo business and its bizarre refusal to accept that Chávez’s isn’t in fact exercising the powers of the presidency, which is something else that’s patently obvious right now…

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            • The solution would not be perfect, in that it would elide the fact that the 2007-2013 term does indeed end on Thursday, but to me it would be a lot more plausible to claim a lapsus in the constitutional text if they did it this way, because the continuismo-without-an-oath thesis is just perverse.

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              • But that would imply a Falta Absoluta, which can’t be declared just like that. You need a junta médica, which TSJ has to name and AN has to approve. It would take time. It would’ve been the logical thing to do 10 days ago, but now it’s too late.

                Actually, at this point, the least-bad-option to me is probably to declare a temporary absence now and leave Maduro Encargado pending the work of the Medical Board.

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              • That’s not what makes sense to you Rodrigo, that’s what your opposition media and political leaders have told you to think.

                People who can think for themselves recognize that power is not changing hands, and that Chavez is continuing in power, and therefore it matters very little what date the swearing-in takes place.

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              • Sure GAC. Because it is a lot more convenient for me to have Cabello over Maduro. Practically speaking to me it makes no difference if Cabello or Maduro is in charge. I just like when institutions behave they way they should. Unless the TSJ says otherwise my opinion remains unchanged.

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          • Funny, when Toro can’t answer my arguments, he just deletes them.

            Rodrigo, the constitution does not say the president of the AN should take over in this situation.

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            • Neither it says that the vice’s term can continue. What a conundrum! That’s why the TSJ should say something!

              But the facts are that there are all kinds of prevision for all kinds of situations but this one and that the presidential term (which is linked to the vice’s and cabinet’s) end in January 10th. Given those facts, the TSJ should clarify what to do. What the hell are the waiting for??

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              • A technicality indeed that can be easily resolved by the TSJ. EASILY! A TSJ controlled by the Chaverment! The alternative being to put another high ranking Chavista at helm! What the hell!

                And by the way, what’s removing Chavez is biology. Not the opposition.

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              • Yep, except the opposition apparently can’t even wait for biology!! But, hey, keep it up! Because, as Ismael Garcia said recently:

                “el país nos está viendo como una gente que está zamureando”

                Exactly.

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            • I’m going to delete patently intemperate language on your part, yes.

              Cuando se produzca la falta absoluta del Presidente electo o Presidenta electa antes de tomar posesión, se procederá a una nueva elección universal, directa y secreto dentro de los treinta días consecutivos siguientes. Mientras se elige y toma posesión el nuevo Presidente o Presidenta, se encargará de la Presidencia de la República el Presidente o Presidenta de la Asamblea Nacional.

              See, “Rodrigo, that’s a misinterpretation of Art. 231, because it refers only to absolute absences” would be temperate language.

              “You just made that up” is intemperate language.

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            • Ahem, there is a line of succession. In normal circumstances the vice president takes over after a temporary absence. If there is no vice president (which has to be re-appointed by the sworn in president at the beginning of the new term since the VP is not an elected member of government) the next in line is the president of the AN.

              That is assuming a temporary absence can be established, but there can be no temporary absence of a functionary that has not been sworn in. What the constitution explicitly prohibits is the exercise of public functions without the oath of office.

              After the 10th if Chavez does not take the oath Maduro is nothing. If he, and not Cabello, takes over as president that is a coup. There is no way around it.

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              • That is assuming a temporary absence can be established, but there can be no temporary absence of a functionary that has not been sworn in. What the constitution explicitly prohibits is the exercise of public functions without the oath of office.

                That’s pretty much the size of it. If they want to keep the possibility open of wheeling Chávez back for an oath some day, they *need* to declare Temporary Absence before Friday.

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          • Rodrigo, you bring up a very good point, why if they are so close and united are they so reluctant to even declare a temporary absence for 90 days with Diosdado at the helm? And if they really only want Maduro why don’t they get the TSJ to declare whatever they need and re-confirm him, what’s stopping them? Why so much insistence on not having a new period starting? Maybe they don’t have the same power of their ailing leader to make the court decide in their favor? Are we already seeing than in Chavez absence no one holds all the power the way Chavez did?

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            • Yup, the conversation came back around to this point yesterday, with Donacobius making very much the same point: the real mystery is why there is this extraordinary resistance to just declaring a Temporary Absence and making Maduro the Presidente Encargado. This whole notion that the old period auto-renews like an obnoxious magazine subscription is a juridical’s dog’s breakfast.

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              • A bunch of people consulted by El Mundo – Economia y Negocios came up with a few possibilities:

                1. The need to fine-tune the succession process.
                2. The need to avoid spreading gloom and despondency among the grass roots, and maintain a utopian vision of a golden future when Chavez will return.
                3. The need to work out how precisely to make the personality cult work ‘post mortem’.
                4. Nicolas Maduro’s need to hold on to the presidency, to help him win the election.
                5. Fear of the comandantepresidente.
                6. The need to establish Nicolas Maduro as ‘presidenciable’ and launch a campaign without declaring it.

                All reasonable guesses. But if this is genuinely the thinking, it seems to me they are merely postponing their problems. The more people get used to Nicolas as the Future Leader, the more inclined they may be to vote for Capriles.

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            • I have the feeling this could be (at least in part) a trap to get the opposition where they want it to be, and at the same time showing their unrestricted loyalty to El Comandante Presidente. It is a way to close the ranks. Polarisation. Do you see how now the only issue is the 10th january?

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        • That is precisely what the constitution (not anyone here) says. And that is precisely what the Constitutional Chamber of the Supreme Tribunal has said. You must have a comprehension impediment if you find that too burdensome to internalize.

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        • What other interpretation is possible?

          Chavez was authorized to hold the office of President by the election of 2006, for the term starting 10 January 2007 and ending 10 January 2013. He assumed the office for that term by swearing the oath on 10 January 2007; that term and oath run out on 10 January 2013.

          He has been authorized to hold the office of President by the election of 2012, for the term starting 10 January 2013 and ending 10 January 2019. He can assume that office for that term by swearing the oath on 10 January 2013; that term and oath run out on 10 January 2019.

          The TSJ has stated that both the election and the oath are required for effectively holding office. If Chavez does not swear the oath on 10 January 2013, he cannot hold the office of President in the new term, and when the old term expires, he ceases to be President.

          This is not absurd, it is the explicit constitutional language.

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    • Isn’t it also ‘obvious (to anyone with common sense)’ that the present circumstances constitute precisely the kind of situation for which the constitution mandates a medical board appointed by the supreme court? If not, then what circumstances would be? I’m genuinely interested to know if you can come up with a reason (other than simple political expediency) why the TSJ is refusing to do so. Likewise, what circumstances might the constituyentes of 1999 have had in mind when they drafted the references to ‘faltas temporales’? Because if these are not they, I just can’t imagine what would be.

      This unedifying spectacle could so easily have been avoided had the supreme court done its job and promptly produced a ‘common sense’ interpretation of the constitution that didn’t leave 30 million Venezuelans in limbo, governed by a president who’s barely conscious (if at all) and whose actions (if there were any) might, after 10J, be considered null and void according to a strict reading of the constitution (and Carrasquero’s jurisprudence). The government’s interpretation of everything in line with its short-term interests is the reason we’re in this mess.

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      • That’s right, of course. But it’s extemporaneous. It’s too late now, there’s no time ahead of Thursday to name a board, have it approved by the AN, send it to Cuba, have it report back and then vote on its report.

        It’s their own damn fault that it’s too late, of course, but that’s where we are.

        So then…what? As I see it the least-bad option is declaring a temporary absence as of Wednesday, putting Maduro in charge of the presidency, and hoping the president-elect gets better.

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        • If the TSJ were to announce it is taking that course, even though it can’t be done before Thursday, isn’t that still better than the alternative? It goes to the heart of the matter (Chavez’ true state of health) and gets us away from sterile arguments about the precise date (which are leading nowhere).

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      • That’s one of the main issues with the constitution: It says a team of doctors appointed by the TSJ can check whether the President is able to remain in office. It doesn’t say, however, what to do if the TSJ doesn’t do it. Even when it comes to declaring ausencia absoluta after 90+90 days of ausencia temporal, more than half of the National Assembly is needed to declare it. They can just do nothing and Chavez is in principle still President.

        In sum, the constitution says what congress and TSJ have to do, but it doesn’t compel them or provide an alternative if they don’ t do their job. We should expect these guys to keep Chavez’s dick in their mouths and wait for instructions

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        • Can someone answer this:: Is Chavez formally in ausencia temporal? Cuz I think he just got authorization to travel to Cuba.

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  9. A lot of the confusion seems to stem from an unwillingness to just read the constitution for its plain meaning. Because yes, the text has gaps and lacunae, but it’s really not *that* bad, I don’t think. A reasonably informed person giving it a reasonably competent reading can figure out its intent.

    Of course, there’s a huge amount of vested interests with good reason to propose jalado-por-los-pelos interpretations, but my basic feeling is that grown-ups shouldn’t find this so difficult.

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    • Would you say, Toro, that your first motive for wanting Cabello to take power is that it could conceivably cause a split in the government in Chavez’s absence?

      That’s a pretty low probability, but I can imagine that after 13 years you’re somewhat desperate.

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  12. Question–For Maduro to be the Presidente Encargado, does he have to take an oath witnessed by the AN or TSJ? Regardless of how much Chavez trusts Maduro, I would want anybody leading the nation to at least promise under oath to do the job legally and responsibly.

    More confusion. Chavez brought this all down on Venezuela by running for president even though he knew he had terminal cancer.

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    • There’s no such formal requirement in the constitution. But Diosdado Cabello swore an oath in April 2002 before taking office for a few hours.

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      • great memory Donacobius, if it’s was mere formality, why have Diosdado swear an oath as president while Chavez came back? Maybe because they wanted to formalize who is in charge, and at that time we knew Chavez was alive and well…

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        • Even that was handled badly, because technically speaking by Swearing in the VP he had to call for elections in 30 days. They never did that, I guess it was just another formality.

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          • well, not if if was a temporary absence, Cabello had 180 days to wait for Chavez to return and if not call elections. Chavez came back so no need for elections. So this proves that the AN President would be sworn in even if the absence is temporary and not permanent…

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  13. In every system of law there are established rules of interpretation which all lawyers apply when some legal text needs interpretation , In Venezuela there is one which has already been mentioned but quickly gets forgotten . This rule applies where a legal provision is silent or hazy about what it implies , but there is another provision which refers to facts or assumptions which closely resemble those of the hazy provision , in which case the rule contained in the former provision are transposed and applied to the latter . In the instant case there is no specific provision for the case where the president elect is temporarily disabled from taking office , but there is a provision which states that where he is permanently incapacitated the Head of the Asamble takes his place as interim president , clearly if we apply this interpretative principle then where the president elect is termporarily incapacitated then Mr Cabello should take his place until such time as the degree of his incapacitation is determined by a medical team . This rule of interpretation ( known in spanish as ‘interpretacion analogica o extensiva’) is universally accepted in Venezuelan law . In spanish are all familiar with the saying ‘quien puede lo mas puede lo menos’ , so if Mr Cabello can replace the president elect during his permanent absence clearly he should be able to replace him in his termporary absences . The other point to emphatize is that for purposes of the law the president elect is either permanently or temporarily incapacitated to assume the burdens of his office , the medical report being only a way to establish formally that such is the case . This means that where there is abundant and public evidence that the president elect is seriously ill and unable to assumme the exercise of his powers ( as can be gathered from the regimes own very strindent treatment of the subject further compounded if the president elect fails to appear the day of his inauguration) then it is the duty of the Asamblea ( not its arbitrary option) to promtly appoint the medical team which can determine whether his state of health incapacitates him permanently or termporarily and in the latter case for how long. By failing to appoint the medical team the Asamblea is in breach or very close to violating the Constitution. What is most baffling is why the regime is going through all of this hassle dassle with something that can be easily resoved without violating the constitution and with little short term prejudice to its interests.

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  14. There’s precedent? Nice, they will say, more toilet paper for the use of Rojo Rojito asses.

    Para mis amigos todo, para mis enemigos la ley. For my friends (substitute Commander President Great Leader and such here) everything. For my enemies the law. MY LAW! For the law is MINE, MINE! No Volveran! Majunches escualidos, este es MI PAIS Y MI LEY!

    Have I remarked that these chavistas who have a problem with private property (of others) tend to claim allodial, i.e. absolute and feudal ownership to everything they lay their eyes on, author, touch or take over? The Constitution and the Law, The State, the Presidency of the Republic, the Armed Forces, PDVSA, Oil, Venezuela, Socialism… the list is literally endless.

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  15. It’s for lawyers to decide the legal ramifications of all this situation, but to me the oath looks like a formality; however this is one of those situations when it might be more than that. If Chavez isn’t physically able to take the oath, how could we expect him to be the President of the country? We have to be sensible to his condition, and if he takes the oath in his hospital bed in Cuba, I think that’s a logical compromise. If he were able to do that, I think all this situation would be much ado about nothing. But there is nothing in the incomplete health reports from Minister Villegas that makes us think that even that situation is possible. This is not about an oath, it’s about being physically fit for office. And it looks like Chavez is not.

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    • Chávez taking the oath in Havana is not enough, he would have to name Maduro Vp by signing a decree.

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    • Summarizing:
      If Chavez is not sworn on Jan 10th…
      1.- … it would NOT constitute an absolute absence. That would violate the principle of popular sovereignty.
      2.- … the current term is NOT extended. The presidential term cannot be extended.
      3.- … the vice-president can NOT assume. On January 10th there is no Vicepresident. The current vicepresident ceases on Jan 9th @ 11:59pm.
      4.- … the president can NOT be sworn later on before the TSJ. That would imply that the current term is extended and that is not possible.
      5.- … the president can NOT be sworn in abroad before the TSJ or a representation of the AN. The TSJ & AN are not competent outside Venezuela. Besides the impossibility of being sworn in in Venezuela denotes that the president is impeded to act as such.

      6.- … there is a temporal absence and the president of the AN would be sworn in as president. It is the only option that doesn’t violate the principles of:
      a) Popular sovereignty (because the absence is temporary, Chavez is still the President Elect)
      b) The presidential term is fixed.and starts on Jan 10th
      c) Continuity of the institution of the Presidency (not the term or the president). The post cannot be vacant.

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