To get a sense of just how needless the constitutional crisis developing in Venezuela really is, let’s just step back from the play-by-play and take stock of where we are as of Wednesday, January 9th, 2013 – one day ahead of the official end of the 2007-2013 presidential period.
We have a president who hasn’t been seen in over a month, and whose health condition, following a fourth surgery for cancer, is unknown. His post-operatory complications are described as “severe” and “stationary”. We don’t know the type of cancer he has, its location or its stage. We don’t know what prognosis he has. We don’t really know whether he’s alive or dead.
The information asymmetry at play is extreme, as the government refuses to honor its constitutional obligation under article 28 to inform us on matters of clear public interest. What we do know is that it stretches credulity well beyond breaking point to assert that, at this point, Chávez is exercising the powers of the office of the presidency: the man is too ill to even sign his name on a piece of paper.
Fortunately, the constitution includes clear guidance on what you’re meant to do when the president is temporarily or permanently incapacitated. Explicit mechanisms are in place to declare a temporary or permanent absence, each with its time frames and attendant procedures.
It’s at this point that things get bizarre: although these procedures are explicit in the constitution, chavismo refuses to invoke them. The information minister publicly upbraids people who refer to Chávez – who, according to the Information Minister himself, is fighting a severe respiratory insufficiency - as though he were temporarily incapacitated.
Now, as lector avispao Donacobius puts it,
Isn’t it 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? [Can anyone] 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.
The scale of the collapse of the rule of law we see in this sorry episode is stunning. We’re shredding the last remains of law-based government for no reason at all beyond chavismo’s obdurate refusal to accept what’s plainly evident – that Chávez is not in fact capable of exercising the office of the presidency at this time – and to follow the plain meaning of the constitution they wrote and accept the jurisprudence that chavismo’s own Supreme Tribunal has produced.
Because, and we really can’t repeat this too often, it wasn’t George W. Bush that established that you become president by taking the oath of office: it was Venezuela’s constitution.
It wasn’t the CIA that opined it was “plainly obvious” (resulta patente) that the juridical effects of taking office are conditional on actually swearing the Oath of Office: it was Venezuela’s own chavista-dominated Supreme Tribunal.
It wasn’t the U.S. Southern Command that established the guidelines for handling the president’s incapacity: it was the constituent will of the pueblo soberano.
We may not have the power to prevent the sheer flouting of the entire constitutional order in Venezuela right now, but we do have the power to document it, and the duty to object.