23.04.19 |

[Chiara Redaelli is Visiting Research Fellow at Harvard Law School and Research Fellow at the Geneva Academy of International Humanitarian Law and Human Rights.]

Over the past months, while international legal scholars have been engaging in passionate debates as to whether Nicolás Maduro is still the de jure president of Venezuela or whether Juan Guaidó should be considered the new interim representative of the country, Venezuelan lawyers have debated over the constitutional basis of the two claims.

The roots of the debate draws back to January 2016, when the Supreme Court suspended the National Assembly’s election of four legislators, allegedly due to voting irregularities. Since three of them were enrolled in the opposition, the latter accused the Supreme Court of trying to weaken its majority and sworn in the three legislators. Consequently, the Supreme Court declared the National Assembly illegitimate. In May 2018, Maduro was re-elected in highly controversial elections, which were boycotted by the majority of the opposition parties. On 10 January 2019, he was sworn in as president of Venezuela. The day after, the National Assembly declared itself as the “sole legitimate power of Venezuela before the international community” (see here and here); on 23 January 2013, Guaidó proclaimed himself interim president of Venezuela.

The constitutional debate

As Guaidò declared that he was assuming the office of the presidency, he provided as legal basis Articles 233, 333, and 350 of the Venezuelan Constitution. Article 233 provides that, in case of absolute absence of the president, the leader of the National Assembly shall be the interim president and call for new elections. Among the instances that amount to absolute absence of the president, the Constitution mentions ‘abandonment of office, declared by the National Assembly, or the popular revocation of his mandate’ (‘el abandono del cargo, declarado éste por la Asamblea Nacional, así como la revocatoria popular de su mandato’, my translation). Furthermore, according to Article 333 every citizen has a duty to collaborate to re-establish the Constitution, whenever the latter is subjected to ‘an act of force.’ Finally, Article 350 establishes that the Venezuelan people ‘shall reject any regime … that is contrary to the democratic values, principles and guarantees or that jeopardise human rights.’

During the past months, in Venezuela a lively debate has unfolded as to whether these provisions are applicable to the specific case. Notably, the main question is whether Maduro could be considered ‘absent’, as required by Article 233 of the Venezuelan Constitution. On the one hand, some scholars claim that the aforementioned provisions are not applicable: first, the situation under exam does not fall within the definition of ‘absolute absence of the president’ as required by the Constitution; moreover, the presidential elections were legitimate and did not jeopardise the Constitution, nor the constitutional order of Venezuela. On the other hand, other authors propound that the 2018 elections violated the constitutional process, since a number of opposition parties were prevented from taking part in the elections. Accordingly, the aforementioned provisions of the Constitution would be applicable and Guaidó has thus the right to be interim president until new elections take place.

In light of the foregoing, it seems fairly clear that the case for the recognition of Guaidó as de jure president rests on the interpretation of the Venezuelan Constitution, an issue that has divided Venezuelan scholars and practitioners. Nevertheless, the interpretation of the constitution received scant attention in the international debate on the recognition of Guaidó. This circumstance raises the question of the role played by constitutional issues in international law.

Precedents

The Venezuelan political crisis is not the first time when the international community engaged in the recognition of concurring governments, whose legal standing was based on constitutional issues. On 28 June 2009, president Zelaya was sent into exile in Costa Rica, an act that the overwhelming majority of the international community considered a coup d’état. The day of his deposition, president Zelaya was going to hold a referendum on whether to convene a special assembly to reform the Honduran Constitution. The referendum was vastly criticised in Honduras and was regarded as an attempt to extend Zelaya’s term. On 26 June 2009, the Honduran Supreme Court unanimously issued an arrest warrant against the president; two days later, the national army carried out the order, ousting Zelaya.

Ultimately, the debate focused on the interpretation of the Honduran Constitution. Notably, the overthrow of Zelaya was justified on the basis of Article 239 of the Honduran Constitution, which reads as follow:

The citizen who has held office in the Executive Power cannot be elected as President or Vice-president of the Republic.

Who violates this provision or suggests its reform, as well as those who support it directly or indirectly, will cease immediately to hold their respective offices and shall be disqualified for ten years from exercising any public function. (my translation, for the Spanish version, see here)

The crucial role played by constitutional issues in determining the de jure government emerged also during the recent Ukrainian crisis. On 22 February 2014 the parliament voted to remove President Yanukovich, and decided that new elections would be held on 25 May. In the subsequent days, an arrest warrant was issued against the overthrown president, who fled to Russia. Yanukovich defined the Parliament’s action as a coup, an act violating the Constitution of Ukraine. As a matter of fact, the Ukrainian Constitution requires at least three-quarters of its constitutional composition to vote in favour of impeachment in order to impeach the president. However, the members of the Parliament on 22 February were 328, while the total number of the members is 449. Therefore, the vote was null due to the lack of 9 votes.

The Honduran and Ukrainian cases seem to suggest that (un)constitutional changes do not affect the international recognition of governments. This is confirmed by the facts that took place in The Gambia in 2017: a few days after the elections, the incumbent President Jammeh denounced grave irregularities in the ballots and referred the matter to the Supreme Court. Pending the Court’s decision, the Parliament decided to extend Jammeh’s mandate for 90 days. Moreover, it tried to change the constitution accordingly. In its Resolution 2337, the Security Council strongly condemned ‘the attempt by the Parliament on 18 January 2017 to extend President Jammeh’s term for three months beyond his current mandate.’ These events raise difficult questions. Could the Parliament modify the constitution, or was it beyond its competence? Which standards apply? Most importantly, who should have the last world in constitutional issues: the elected representatives of the people or the international community?

Balancing conflicting values: democracy, the principle of non-intervention, and the right to self-determination of people

The Inter-American Democratic Charter states that ‘[i]n the event of an unconstitutional alteration of the constitutional regimethat seriously impairs the democratic order in a member state’ the other member states and the organs of the OAS will take initiatives aimed at restoring democracy.’ Moreover, member states can be suspended if ‘there has been an unconstitutional interruption of the democratic order’ (Article 21). As suggested by Cassel, the Charter ‘sets international standards which demand (among other things) that each nation comply with its own constitution.’ Therefore, he adds, ‘[t]o the extent that democracy depends on constitutionalism, this incorporation of domestic law into international law is unavoidable.’

In Venezuela, it is debatable whether Guaidó has a constitutional right to be the interim President. In Ukraine, the Parliament did not meet the quorum to oust President Yanukovich, yet the international community (with few exceptions) did not consider the latter as the legitimate representative of the state anymore. Conversely, in Honduras and The Gambia it is at least controversial whether the changes of government were unconstitutional. In the first case, the action was carried out on the basis of a Supreme Court order. In the second, the Gambian Supreme Court was asked to investigate whether the elections were affected by irregularities. It is undeniable that the modalities of expulsion of President Zelaya (forced on a plane in his pyjamas) and the alleged partiality of Gambian organs of the state raise legitimate doubts on the constitutionality of those changes. Nonetheless, this does not change the fact that internal state authorities were not deemed as the best candidates to interpret their own constitution. Does this circumstance constitute an unlawful interference in internal affairs of those states?

On the one hand, the Democratic Charter takes a firm stand against undemocratic changes of government; moreover, the preamble of the OAS Charter affirms that democracy is ‘an indispensable condition for the stability, peace and development of the region.’ On the other hand, the OAS Charter mentions as one of its essential purposes the promotion and consolidation of democracy ‘with due respect for the principle of non-intervention.’ Furthermore, it specifies that ‘[e]very State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it, and has the duty to abstain from intervening in the affairs of another State.’

How to balance the pivotal role that democracy has assumed in the inter-American system with the principle of non-intervention and the right to self-determination of people ultimately requires making a choice based on the values and objectives that we believe international law should encourage and promote. Matters exclusively within the domestic jurisdiction of states have shrunk over the past decades. Issues such as respect of human rights, once exclusively internal, have entered the international sphere. International and regional instruments such as the African Charter on Democracy, Elections and Governance and the Inter-American Democratic Charter would prove that democracy and adherence to the constitution are now matters of international concern. Although none would deny the value of democracy and the importance of free and fair elections as a way to change government, as opposed to violent means, who should have the last say on constitutional matters is highly controversial. Leaving the matter exclusively to internal authorities could jeopardize democratic processes: cases of corruption and abuses are not uncommon. On the other hand, the intervention of the international community could equally raise concerns of possible improper use of its power. In any case, regional instruments and state practice seem to tend toward the second option.