University of Cambridge
It is three months now since Juan Guaidó assumed the office of the Presidency of the interim government of Venezuela. The interim government claims its legitimacy due to the fraudulent nature of the presidential election of 2018. The interim government has asserted that those elections could not have rendered a mandate to form a legitimate government. Hence, Nicolás Maduro is usurping the office of the Presidency. In order to address this situation, the Venezuelan legislature (National Assembly) established a provisional government headed by its President. The main objective of this government is to oust Maduro (considered an ‘usurper’) and call for fresh elections in the country in order to restore the rule of law and democracy. I have discussed the constitutional legitimacy of this strategy under the Venezuelan Constitution here.
After three months Guaidó can claim that several objectives have been reached. He has managed to receive support from over 60 countries, including most of Europe and Latin America, Canada and the United States. The initial strategy for ousting Maduro was to seek the entry into the country of humanitarian aid and to call for defections in the armed forces that currently keep Maduro in power. This strategy has not reached the intended objective, since the bulk of senior officials have backed Maduro – although some members of the military have defected and crossed the Colombian border. After the attempt to bring the humanitarian aid into the country failed, the foreign governments that back Guaidó have almost unanimously resorted to a strategy of sanctions. They have claimed that military intervention is not on the table, but that sanctions to government officials and the Venezuelan oil industry ought to be implemented to cause a break in the military apparatus that maintains Maduro in power. The strength of this strategy is yet to be proven.
However this path of action presents a new problem to Guaidó: timing. Sanctions might work but they will not work immediately, or as fast as Guaidó and the ailing Venezuelan population need them to.
The first problem with time for Guaidó emerges from legal constraints. Guaidó is not a de facto president. His claim rests on a mandate that was given by the National Assembly that appointed him Interim President by application of a constitutional provision (Article 233) that calls for the President of the National Assembly to assume the office if there is no president-elect. However, Guaidó is president of the National Assembly under a pact between opposition parties that agreed to alternate every year the presidency of the legislative body amongst them. This was the year that corresponded to Guaidó’s party. According, to the Constitution the National Assembly is called into new yearly sessions every 5th of January (Article 219).
Thus, if this pact amongst the opposition parties is respected there would be a new president of the National Assembly with a mandate to assume the Interim Presidency of the Republic. A new president of the National Assembly might try to pursue a different strategy, or might choose to continue the path of action assumed by Guaidó. Also, the Constitution establishes that the term of every member of the National Assembly is of five years. Therefore, the mandate of this legislature, with a majority of opposition parties, and of Guaidó as a legislator will expire on the 5th of January 2021, in twenty months’ time. Sanctions might or might not have worked by then.
The 4th of January of 2021 is a deadline for Guaidó and the international community that is seeking to remove Maduro from power and restore democracy. On the other hand, it seems that Maduro’s gamble is to run the clock and bet that sanctions will not erode his power base in the military before time is up for Guaidó. Also, Maduro and his officials have not been shy about their intentions of removing Guaidó by prosecuting him with criminal charges. Guaidó’s chief of staff is currently in jail and several members of the official party have even claimed that Guaidó deserves the treatment of a traitor and be put before a firing squad.
Surpassing the sword of Damocles that Maduro has put over Guaidó’s head is already a tough challenge, but there are two ways to overcome the hurdles presented by legal and constitutional time frames. First, the National Assembly passed a Statute to govern the transition towards free and fair elections for the Presidency. This Statute gives a mandate to the President of the National Assembly to seek Maduro’s removal and to safeguard essential interests of the state. It is possible to read that this statute imposes a mandate to whoever occupies the post of President of the National Assembly. Therefore, if Guaidó is replaced by a new member of parliament as president of the legislature next year, he or she will also be under the mandate of the Statute to seek the removal of Maduro.
The second problem regarding the term limits of the legislature is harder to overcome. Article 13 of the Statute recognizes that the mandate of the National Assembly expires in January of 2021. The same article calls for elections to be held in the last quarter of 2020. Now, it is hard to imagine that the same electoral authority that conducted a sham election in 2018, that resulted in the victory of Maduro, and that elected a Constitutional Assembly with only backers of the regime is a credible referee of the electoral process. At the moment the National Assembly is the single constitutional body in Venezuela elected in a genuine election. It is possible to interpret that any election that is not genuine and does not meet any threshold of electoral integrity will present the same question to the Venezuela opposition as Maduro’s election in 2018 did.
The difficulty is that there is no guideline in the constitution on what should be done in this case. Only a call to apply republican and democratic principles might present a solution. Therefore, there might be an argument that until free and fair elections are held to renew the legislative body, current members of parliament have a constitutional duty to resist an attempt by not duly elected officials to take over the National Assembly. This evidently stretches the text of the constitution and demands an interpretation not of constitutional mandates but of constitutional principles.
Time is of the essence not only for Guaidó but also for members of the international community who have backed him. Foreign governments have recognized diplomatic envoys and several posts have been filled in accordance with the Statute enacted by the National Assembly. If the clock expires then there will be difficulties for hosting and backing these officials of the interim government.
I do not purport to have an alternative strategy of what ought to be done, nor do I think that things should have been done differently by the interim government from a constitutional perspective, but time is running. Not only the clock is ticking for Guaidó and the National Assembly but also for Venezuelan citizens. Guaidó represents the last attempt of a society to escape a situation that has driven them to the verge of survival. The National Assembly is the only body duly elected by the Venezuelans left in the country. Therefore, this is the last constitutional solution available. If time expires then there is no clear constitutional alternative for a crisis that has plunged the country into a destructive spiral, including an ongoing humanitarian crisis and blackouts that last for weeks.
All that would be left in this scenario is for private citizens, not vested with constitutional authority, to overcome the current regime. The objective might be reached at the end or not but, in any case, it is clear that Guaidó and the National Assembly represent the last beats of life of the agonizing Constitution of 1999. The strategy of sanctions that demand bracing for the long haul might also have its days counted if it hopes for an orderly and constitutional transition.
Rolando Seijas is a Ph.D. in Law Candidate at Downing College, Cambridge University.
Suggested Citation: Rolando Seijas, ‘The Venezuelan Interim Government and its Time Constraints‘ IACL-AIDC Blog (15 May 2019) https://blog-iacl-aidc.org/crisis-in-venezuela/2019/5/15/the-venezuelan-interim-government-and-its-time-constraints