Article 233 Chronicles (Updated)

musical chairsHere is what Article 233 of our Constitution says (in my rough English translation):

“Article 233. The following are considered “absolute absences” of the President: his death, his resignation, or his being deposed by a sentence from the Supreme Tribunal of Justice, his permanent physical or mental incapacity as certified by a medical board designated by the Supreme Tribunal of Justice and approved by the National Assembly, the abandonment of his post declared as such by the National Assembly, as well as popular recall of his mandate.

When the absolute absence of the President Elect (emphasis is mine) happens before he takes the oath, a new election will be called in the following thirty days. While the new President is elected, the President of the National Assembly will take over as President.

If the absolute absence happens in the first four years of the Presidency, a new direct and secret election must be held in the next thirty days following the declaration of the absence. While the new President is elected, the Vicepresident will be in charge of the Presidency.

In the aforementioned cases, the new President will finish the corresponding term.

If the absolute absence happens during the last two years of the term, the Vicepresident will assume the Presidency until the term is completed.”

——-

So, I’m no lawyer, but to me there is a contradiction here. If the President elect goes missing, the President of the National Assembly takes over. But if the President goes missing in the last two years of his term, the Vicepresident takes office. In this case, we would have both: the President elect AND the sitting President in the last two years of his term would go missing, but it’s the same person.

How does this get resolved? Does the first part take precedence over the second one? So we’re stuck with Godgiven in case Chavez croaks?

Furthermore – why is there nobody in the National Assembly calling for an absolute absence to be declared? All they need is a majority in the National Assembly. Can’t they convince a few of Godgiven’s minions to flip to our side and vote for his man to become President?

If Chavez wants to fight his case, let him come to Caracas and make it in person.

Update: Miguel has more background on this.

21 thoughts on “Article 233 Chronicles (Updated)

    • That’s one interpretation of the Constitution… but not the only one! Besides, it says that elections have to be held within thirty days, not that they have to be called within thirty days.

      And … who takes the oath on January 10th? Chavez via Twitter…? I see what you’re saying, but I think the language is vague. It doesn’t specify that the National Assembly President only takes the oath after the term was supposed to have started. It just says he takes the oath while the election is held.

      • Juan,
        I agree that there is a vaccum in the Constitution. Its very ironic, because it doesn´t consider the scenario when there is an absolute absence from a reelected President (that from a Constitution drafted to include inmediate reelection) But I think Rodrigo´s interpretation is the more logical. Maduro ends the term. In January 10, Diosdado takes over and calls for an election.

          • Actually, the logical thing would be for a single person to take over until the President is elected.

            Furthermore, it doesn’t even say what happens between the new person being elected and actually taking the oath! Or are they going to say that the new President would take over immediately?

            Que analfabetas, vale.

            • It would be the logical thing from a practical point of view, but legally you have to reconcile somehow the fact that there is a void when there is an absence by the incumbent. If you sworn in the President of the Assembly before January 10th, you would be technically contradicting the article that says that the VP has to finish the term, I think this interpretation somehow reconciles the contradiction.

    • That’s the only logical conclusion, but the way it’s written, I would conclude that if the president elect dies a day after the election, the sitting president term is cut short in favor of the head of the national assembly. That is literally how it is written. It doesn’t make any sense, but there you have it.

  1. I understand that if Chavez dies before January 10th, Maduro would have to take over until that date and then it would be Diosdado who would have to take over. But, guys, sadly, the Constitution doesn’t matter. The acting president’s name will be decided after these two men sit down and negotiate, if not worst.

  2. There is no negotiation between these two alone. There ae plenty more key stakeholders with big interests in the current failed state model. Farc, narco traikers, chulos de america latina and elsewhere, russioans, bielorussioans, cubans, iranians, chineese, etc. Big oil, etc.

    Venezuela has become a great spoil for the taking, while our polititians are utterly MUDos…
    sad times

  3. You are assuming that a few chavistas plus the opposition deputies of the NA are interested in declaring an absolute absence and having Diosdado Cabello in place until new elections….

    De Guatemala a Guatepeor?

  4. Here’s another twist: Diosdado’s term as president of the National Assembly expires on 5 January. He might be re-elected, but then again he might not. Imagine the saco de gatos that is chavismo trying to decide, in the absence of Chavez, on who should hold a job that would also, in that event, include the temporary presidency of the republic.

      • The plot really thickens when you consider that under normal circumstances if Hugo Chavez was incapacitated decision makers would ordinarily be free to exercise their own judgments. However, Maduro in charge that may not be the case. Get my slant?

  5. The second paragraph of article 233 has been created specifically to deal with the case of there existing a president elect that dies before taking office.

    Paragraph three is also a specific case, that of a president duing during the first 4 years in office.

    Paragraph four remphasizes that the persons defined by paragraphs 2 and 3 will finish the presidential period, as the NEW PRESIDENTS.

    Paragraph five is thus only defines the case of POST four years and PRE president elect.

    Besides that, any article in a constitution trumps any article below it. I would bet that there a similar trumping in the order of paragraphs.

    My take is that DC would become the new president until the end of the presidential period, should chavez die now.

  6. Article 233 is very ambiguous and confused. It should be split into two sections to cover three separate possible conditions.

    That is because “absolute absence of the President elect” is not “absolute absence of the President”, until the new term begins. Unless – as is the case now – the President is also the President elect.

    For another, it is about 90 days from the election to the start of the new term. Suppose that a new President is elected, and dies 20 days after the election. A new election must be held within 30 days, so the vacancy is filled 40 days before the new term. There is no Presidential
    vacancy.

    The clause about the President of the National Assembly would apply if the President elect is absent, and the replacement election would be held after the new term starts. Since the VP is appointed by the President, there would be no VP between the term start and the election, so the PNA succeeds.

    If in that case, the President is also the President elect, then both clauses apply. The VP succeeds the President, for the rest of that term. At the end of term, the PNA succeeds. Bear in mind that the VP’s tenure in office expires when the President’s does.

    That messy situation is of course what we may see in the next month.,

    Arguably, for the sake of simplicity, the PNA should succeed for the entire thirty day period in that case. But Section 233 doesn’t say that. In fact, it says that if the President elect is absent, the PNA takes over as President – with no mention of whether there is a sitting President!

    Thus if the incumbent President and President elect are both absent, the VP and PNA both succeed as President.

    What Section 233 should say:
    ===============
    233A: The President shall take the oath of office and immediately name a Vice President. In the absence of the President, the Vice President shall succeed to the office, and shall hold the office until a new President is elected and takes the oath of office. If two years or more remains of the President’s term, election of a new President shall be held 30 days after the absence of the President. The new President shall take the oath of office immediately after the election and serve the remainder of the term. If less than two years remains of the President’s term, election and inauguration of a new President shall take place at the end of the term, as specified in Section XXX [on presidential elections].

    233B: If the President elect becomes absent during the last 30 days of the previous Presidential term, election of a new President shall be held 30 days after such absence. The new President shall take the oath of office immediately after the election and serve the remainder of the term. The President of the National Assembly shall serve as President from the beginning of the term until the new President takes the oath of office.
    ===============

    Part of the reason for the confusion is that the VP is not elected in company with the President, as is done in the U.S. That provides for a VP-elect, who would automatically succeed as President in the new term.

    • “That is because “absolute absence of the President elect” is not “absolute absence of the President”, until the new term begins.” The exception may have been created thinking of the possibility of a president having a president elect killed. In theory, a president elect doesn’t take office as soon as elected because he requires the time period to get up to speed before taking over from the president that’s on his way out. So it does make some sense to consider setting up a representative of the president elect to take over while a new president elect is chosen.

      Another way to look at it is, what is the purpose of making an exception regarding the president elect if there is never an occasion to use it? Clearly, they had in mind that this exception would trump the VP one.

    • The issue you all are talking about has been dealt already. The head of the National Assembly will become acting president if a reelected president happens to die while being president elect.

      Just after Rafael Tovar was reelected for a new term as governor of Nueva Esparta State he died of cardiac arrest. Then a futile battle ensued: both the state secretary and the president of the state legislature demanded the post. The Supreme Court ruled in the end that the latter was entitled to the post because the executive branch of government had entered a transitional state due to the presence of a governor-elect, therefore his vacancy takes precedence in case of reelection.

      If in doubt, take into account this case set a precedent in Venezuelan judiciary and the current VP is appointed independently, so there’s no conflict with current law.

  7. Where there is a will to dispute the order of succession, it will be disputed. Unless things are starkly clear, and they are not, no one needs “correct” arguments, only arguable ones. Then it becomes a question of raw power. If Chavez isn’t back by January 10th, a total meltdown is likely.

  8. The National Assembly has to declare the absolute absence, And then if you find this article confusing, guess what? Let’s go to La Sal a Constitucional of TSJ…so they could ponder with all the time of the world what is going to happen…and probably would be that Diosdado Cabello would be in Charge

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