This piece, originally authored in Spanish (see the original here), is a consideration of the constitutional basis for recognizing the existing Venezuelan National Assembly’s mandate past its expiration on January 5, 2021. It is authored by Venezuelan Constitutional and legal scholar Claudia Nikken, Professor of Administrative Law at the Central University of Venezuela and Professor in Constitutional Law at the Andrés Bello Catholic University. Nikken is the author of various publications relating to constitutional an administrative law, and a practicing lawyer.
Venezuela’s Constitution does not contain an explicit solution of what to do in the case that, for any reason, it becomes impossible to renew the country’s legislative branch of government at the end of the legislators’ mandates.
Given this reality, in recent weeks there have been suggestions that current representatives in the National Assembly should retain their positions based on the analogical application of the principle of “administrative continuity.” This is based on the premise that the electoral process convened to renew the legislature amounts to a nonexistent election, given that it is taking place outside the bounds of not only the Constitution and relevant laws, but also international electoral standards. The argument is also used to justify the administrative continuity of the interim government formed in January 2019 under the leadership of Deputy Juan Guaidó, President of the National Assembly.
It is not very evident that this solution applies—especially because, like any other judicial interpretation about the subject, it is a mere exercise that lacks any kind of practical effect in Venezuela. It does not produce a national accord that would allow for the governability of the country, nor does it pave the way for its necessary reinstitutionalization.
Given the recent attention on the subject, the following are a few brief thoughts regarding, first, institutional continuity in Venezuela and its constitutional basis, followed by an analysis of its applicability in the case of a contested election, with particular reference to the election of representatives to the National Assembly.
I. Administrative Continuity in Venezuela and its Constitutional Basis
The National Assembly is the national legislative branch and its members have an explicit mission to serve as the representatives of the Venezuelan people, to legislate, to oversee public administration, and to elect the heads of certain representative national institutions. For this reason, it is less appropriate to refer to “administrative continuity” than to speak of “institutional continuity,” as the National Assembly is neither an institution of public administration, nor do its attributions have to do with the exercise of administrative activity.
Institutional continuity is an adapted mechanism resulting from the agreed-upon principle that the state should not become paralyzed for any reason, and as a consequence, that is the need to maintain or preserve the effective functioning of its institutions.
The principle in question does not have an explicit basis in the Venezuelan Constitution, except for the consideration of a phrase included in Article 339, referring to a state of exception according to which, not even in the most dire circumstances can the paralysis of government be justified.
However, the idea of institutional continuity is manifested several times in the Constitution, and to comprehend this it is necessary to take into consideration what constitutes public authority: the object and the subject.
The objective element of a public authority consists of its judicial formulation and the competencies (faculties and obligations) that are afforded to them, among other characteristics. One would speak, for example, of the Presidency of the Republic or a seat in the National Assembly.
The subjective element, in turn, is the physical person that holds the public authority, the official or agent called to exercise its competencies. In the given example, this would refer to the President of the Republic or a Representative in the National Assembly.
Institutional continuity addresses the objective component, but not the subjective. The reason is simple: human beings holding office cannot, except through death or other circumstances, veer from the exercise of the duties relating to the objective element of the organ while holding office.
Hence, both the Constitution and Venezuelan law have established regulations to guide the continuity of the objective component of the authority, even if the subjective element is missing. The most obvious application of this is the temporary or permanent substitution of the officeholder (“the King is dead, long live the King!”). But the most important application related to democratic representation is the organization of the process by which the subjective element of an authority is substituted or ratified.
Because of this, it is essential to link any mechanism of institutional continuity with electoral renewal.
II. Institutional Continuity and Electoral Renewal in the Case of the National Assembly
One of the essential characteristics of a republic is the temporary nature of the mandate of representatives, that is to say, those who have been appointed by direct or indirect voting.
In Venezuela, the offices of the Presidency of the Republic and of Deputy to the National Assembly are both positions of national representation, as are those of Supreme Court judge, Chief Prosecutor of the Republic, Public Ombudsman, General Comptroller of the Republic, and Rector to the National Electoral Council. The first two are elected by universal and direct vote, while the latter examples are elected indirectly by the National Assembly.
All of these positions have a time-limited mandate, and the expiration of this mandate produces an absolute vacancy. For this reason the process of substituting (or ratifying) these positions should take place sufficiently in advance, and in such a way that ensures that when the mandate expires, new representatives have been elected and/or retiring representatives have been re-elected. In the case of the positions subject to popular election, the responsibility of the process falls on the National Electoral Council and, in the other cases, on the National Assembly.
In a state governed by the rule of law, it would be unthinkable that the authority entrusted with overseeing the election of representatives, with guaranteeing the temporary nature of their mandates, would not do so in a timely manner. In Venezuela, where there is no rule of law, this has happened on several occasions, especially in the past 20 years. This includes the first electoral process that was held to name all public authorities in accordance with the new Constitution of December 30, 1999, when officeholders’ mandates were extended even though their legitimacy of origin was questionable. Originally, an electoral process to “re-legitimize” all public authorities subject to direct election was set to take place in May 2000, but this was deemed technically impossible so the process was postponed to July (for most representatives) and December (for municipal councils).
Except for the very particular case of that first election, there has never been a situation in which either the President of the Republic or the representatives to the National Assembly have been elected in such a way that a inauguration date of a new mandate is not guaranteed. However, on two occasions the presidential electoral process has been irregularly moved up: the first was in 2012, in order to ensure the election of Hugo Chavez (although he was never formally inaugurated in his new term), and the second was in 2018 in order to avoid a competitive election and ensure a victory for Nicolas Maduro. This was also the case in 2010 with the election of the National Assembly.
There have, however, been cases in which indirectly-elected national representatives have been appointed outside of the traditional timeline of their mandates. In these cases, the approaches have been diverse, but in the case that the outgoing representative has a deputy (a “suplente,” or secondary representative) whose mandate has not expired, the position has been occupied by this until the election of a new representative. There have also been repeated irregularities in relation to representatives to state and municipal councils, and it is in these cases that the mechanism of “administrative continuity” has been invoked.
Yet there is no precedent for an instance in which, in response to a contested election—much less in the event of the mere public denunciation of its irregular nature, however justified—the mandate of an outgoing representative has been extended until the dispute is resolved. It was never even suggested, for example, when the election of representatives to Amazonas was contested in 2015 (a matter not yet resolved, and which was a clear effort to break the opposition’s two-thirds majority), that their predecessors would hold their seats. Instead the representatives were “disincorporated” from the National Assembly in a preventative or temporary manner, with the resulting consequences.
To the contrary, in the case of irregular and challenged elections, the principle generally upheld is to conserve the presumptive popular choice, which has entailed—including in Venezuela—that, if there is no substitute, the newly elected representative holds the office until the conflict is (rapidly) resolved and, if necessary, a new election can be held. For this to function correctly, there must be an adequate system of administrative control and, ultimately, judicial control over the elections, which is not the case in Venezuela. Venezuela, as we have said, is not governed by the rule of law.
For this reason, in the case of the highly contested reelection of Nicolas Maduro as President of the Republic on May 20, 2018, which was inappropriately validated by the Supreme Court of Justice, the National Assembly initiated the proceedings of “presidential subrogation.” On January 10, 2019, the date on which the previous presidential term expired, the National Assembly declared that there was an absolute vacancy of the position based on the consideration that the necessary electoral process and judicial oversight had been nonexistent (and that the elected official had not taken the oath of office in accordance with the Constitution). On the 23 of January 2019, the President of the National Assembly, following the constitutional principle of presidential subrogation, assumed the mandate of interim government until a corresponding election could occur.
This precedent does not justify per se a decision by the interim government to, upon not recognizing an electoral process—which is only beginning—create the impression that there is no election being held to renew the National Assembly, and as such to invoke the mechanism of administrative continuity in the absence of another solution, despite the fact that the mandate of the current representatives to the legislature expires on January 5, 2021. This does not apply, among other reasons, because the purpose of the mechanism of administrative continuity is to guarantee the effective functioning of state institutions, not to extend the mandate of those who hold office and whose renewal has not taken place—or has taken place illegally. Maintaining the current representatives to the National Assembly in their positions, in particular the President, does not guarantee the continuity of the National Assembly.
In effect, since the opposition took control of the National Assembly, the governing coalition has gradually and systematically impeded the effective functioning of the National Assembly, essentially paralyzing its activities in the Republic. For this reason, the absolute vacancy of the President of the Republic that was declared on January 10, 2019 and the designation of an Interim President, as well as the reelection of Juan Guaido in 2020 as the president of the body, have all been decisions that have been impossible to execute in practice in Venezuela, in spite of their legitimacy.
These actions have only really had an impact abroad, because third-party countries have decided to recognize them with the understanding that these measures were based in the Constitution and have political legitimacy because they have popular support.
This is not the case for the question of institutional continuity, such as it has been currently presented. Even if the electoral process were suspended, one could not doubtlessly, impartially or objectively appeal to the principle of institutional continuity to justify this. In Venezuela, the problem today is far too severe.
Lacking any previous accord that—for whatever reason—effectively suspends the electoral process, the application of the mechanism of institutional continuity would set the stage for the coexistence of two parallel governing boards in the National Assembly. The first of these was elected with a parliamentary majority on January 5, 2020 and presided by Juan Guaido, and second is recognized by the de facto government and allied with it, presided by Luis Parra. In other words, the current inability inoperation of the National Assembly would continue, given that neither of the governing boards of the body would be able to exercise legislative power and, through this, contribute to the solution of the country’s problems.
Moreover, if the thesis of institutional continuity is adopted as has been suggested so far, the authority of the legislative branch would not be derived from the exercise of popular sovereignty, but by third party countries that decide which National Assembly appears legitimate to them, who is in charge of it, and, ultimately, which head of state they “recognize.”
In sum, in this event the power of representation would be based on the decision not to participate in the upcoming electoral process, taken unilaterally by a political group represented in an embattled parliamentary majority and, on the eventual—only the eventual—acceptance of this thesis of institutional continuity by third-party states.
In order to sustain the application of the mechanism of institutional continuity, it would be necessary for a social event to occur that legitimizes the decision taken by the political class, which could translate into a new electoral process that would effectively allow the renovation of the National Assembly and the eventual re-institutionalization of the country. In order for all of this to occur peacefully, it is first necessary to broker a preliminary agreement of governability.
On this urgent need, it is worthwhile to cite the late Pedro Nikken: “It’s necessary to get very imaginative. The history of politics and diplomacy is full of impossible negotiations. Nevertheless, they happen.”