By: Ricardo Abud
The Constitution of the Bolivarian Republic of Venezuela establishes a differentiated and clearly defined system for addressing presidential absences, distinguishing with technical precision between temporary and absolute absences.
This distinction is not merely semantic, but reflects a constitutional framework designed to guarantee the continuity of the Executive Power under any circumstances, while simultaneously preserving the democratic legitimacy of the popular mandate and the institutional stability of the State.
Article 234 of the Constitution specifically regulates temporary absences of the President of the Republic, establishing that when the President is temporarily unable to perform their duties, the Executive Vice President will assume the role for up to ninety days, extendable by decision of the National Assembly for an additional ninety days. This constitutional provision reveals the constituent assembly's decision to establish institutional mechanisms to prevent the paralysis of the Executive branch in the face of temporary impediments, without prematurely declaring the office vacant. The provision further states that if the temporary absence extends beyond the established period, it is up to the National Assembly to determine whether it should be considered a permanent vacancy.
The structure of this provision reveals a tiered system of institutional response. First, a presumption of temporary absence is established, automatically triggering the appointment of the vice president as acting president. Second, an initial time threshold of ninety days is set, extendable for an equal period by parliamentary decision. Finally, after this maximum period of one hundred and eighty days, the power to assess whether the situation warrants a declaration of permanent vacancy or whether, on the contrary, reasons remain to maintain the characterization of the absence as temporary is transferred to the legislative body.
This normative architecture becomes particularly relevant when contrasted with the regime of absolute absences contemplated in Article 233 of the Constitution. This provision exhaustively lists the causes that constitute an absolute absence of the President of the Republic, namely: death, resignation, removal decreed by a ruling of the Supreme Tribunal of Justice, permanent physical or mental disability certified by a medical board designated by the Supreme Tribunal of Justice and with the approval of the National Assembly, abandonment of office declared by the National Assembly, as well as the popular revocation of their mandate. The exhaustive nature of this enumeration implies that situations that do not expressly fall within one of these normative hypotheses cannot be considered absolute absences.
When analyzing the forced and involuntary kidnapping of the constitutional President in full exercise of their presidential term, it is evident that such a circumstance is not found in any of the causes of absolute absence provided for in Article 233. Indeed, a kidnapping does not constitute the death of the president, as they are alive, although deprived of liberty. Nor does it constitute resignation, since resignation is a volitional act (a conscious, intentional, and free action, motivated by one's own will), deliberate and express, by which the holder of the office unequivocally manifests their intention to abandon it, which is radically incompatible with a forced removal against the President's will.
Likewise, kidnapping cannot be legally qualified as abandonment of office in the terms of Article 233, since abandonment necessarily implies a subjective element of voluntariness, a conscious and free decision by the holder to cease exercising their functions. A kidnapped president does not abandon their office, but is forcibly prevented from exercising it. To attempt to equate violent deprivation of liberty with voluntary abandonment of office would imply an inadmissible distortion that would turn the victim of a crime into the person responsible for the institutional consequences of the same, which is constitutionally unacceptable.
Nor could the cause of permanent physical or mental disability be invoked, given that kidnapping does not in itself generate a disability in a medical-legal sense, but rather a material and temporary impossibility of exercising the functions. Furthermore, the Constitution requires that such disability be permanent and certified through a specific procedure involving a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly. The temporality inherent in a kidnapping, the resolution of which can occur at any time through the release of the kidnapped person, prevents it from being categorized as a permanent disability.
Therefore, under a systematic and teleological interpretation of the constitutional text, the forced kidnapping of the President unequivocally constitutes a temporary absence in the terms of Article 234, not an absolute absence according to Article 233. This legal qualification activates the constitutional mechanism of replacement, with the Executive Vice President assuming the functions inherent to the Head of State and Government while the material impediment persists.
The constitutional logic underlying this interpretative solution responds to several fundamental principles of the Venezuelan legal system. First, the principle of continuity of the State, which requires the uninterrupted permanence of the essential functions of the Executive Power regardless of the circumstances affecting its holder. Second, the principle of democratic legitimacy, which requires respecting and preserving the popular mandate conferred on the elected President, preventing circumstances beyond their control or constitutionally provided causes from producing the early termination of their term. Third, the principle of constitutional legality, which obliges all public authorities to act within the normative framework established by the Constitution, without analogically extending the exhaustive causes of absolute absence to cases not expressly contemplated.
The intervention of the Executive Vice President as a constitutional substitute during the kidnapping of the President does not imply, therefore, usurpation or illegitimate exercise of power, but precisely the fulfillment of the constitutional mandate that entrusts this figure with the responsibility of guaranteeing governmental continuity in the face of temporary absences of the holder. The initial limit of ninety days established in Article 234, with its possibility of extension for an equal period, allows the constitutional system to have time margins to assess the evolution of the situation without precipitating irreversible decisions.
After the maximum period of one hundred and eighty days has elapsed, the Constitution attributes to the National Assembly the power to assess whether it is appropriate to declare the existence of an absolute absence. However, this parliamentary power is not discretionary or arbitrary, but must be exercised in strict adherence to the causes exhaustively provided for in Article 233. The mere temporal prolongation of the absence does not automatically transform a temporary absence into an absolute one if none of the constitutional causes concur. In the case of kidnapping, while the President remains alive, has not resigned, has not been judicially removed, does not present a certified permanent disability, and cannot be accused of voluntary abandonment of office, the National Assembly lacks a constitutional basis to declare an absolute absence.
This interpretation is reinforced by the spirit of guarantee that animates the entire Venezuelan constitutional text, particularly with regard to the protection of fundamental rights and the separation of powers. Allowing a criminal act such as kidnapping to automatically produce legal effects equivalent to the death or resignation of the President would imply rewarding the crime with institutional consequences favorable to its perpetrators, which is inadmissible from any perspective of democratic political philosophy. On the contrary, maintaining the constitutional validity of the presidential mandate and the vice-presidential replacement neutralizes any incentive to attempt to alter the constitutional order through violence.
Additionally, it should be considered that the Venezuelan legal system contemplates other institutional mechanisms to address exceptional situations that may require extraordinary measures. The Constitution provides for states of exception that may be decreed in the face of circumstances that seriously affect the security of the Nation, institutions, or citizens. These mechanisms allow for the adoption of measures proportional to the situation without the need to force the application of rules on presidential absences to cases not contemplated in them.
It is pertinent to point out that the indefinite prolongation of a temporary absence could, eventually, raise questions about the institutional sustainability of the vice-presidential replacement. However, such considerations of political convenience or governmental pragmatism cannot prevail over constitutional supremacy. The Venezuelan legal system does not authorize the praetorian creation of causes of absolute absence not provided for in the constitutional text, not even in extraordinary circumstances. The constitutional rigidity in this aspect constitutes precisely a guarantee against hasty decisions that could be adopted under pressure from conjunctural circumstances.
If the kidnapping were to extend beyond the presidential period for which the absent President was elected, the natural termination of the mandate due to the expiration of the constitutional term would resolve the situation without the need to declare an absolute absence. In such a scenario, a new inauguration of the kidnapped President would simply not be possible as their term has expired, thus activating the ordinary constitutional mechanisms for the renewal of the Executive Power. However, while the constitutional term is in effect, the vice-presidential replacement must be maintained as an expression of the continuity of the popular mandate.
This interpretative solution is not unique to the Venezuelan legal system; it finds support in comparative constitutional theory and in the institutional practice of various democracies that have faced situations of presidential incapacity. The general principle guiding these systems is the preservation of democratic legitimacy through institutional continuity, preventing de facto circumstances from producing legal effects not expressly authorized by the Constitution. The conceptual distinction between the material impossibility of exercising the office and the legal non-existence of the mandate is essential to safeguarding democratic institutions.
From a strictly legal perspective, any interpretation that attempts to equate the President's kidnapping with abandonment of office or tacit resignation must be rejected. Constructing legal fictions that allow for declaring absolute vacancies in cases not expressly contemplated by the drafters of the Constitution would violate the principle of constitutional legality and set dangerous precedents that could be exploited to illegitimately alter the constitutional order under interpretive pretexts. The Constitution cannot be interpreted against itself or against the democratic principles upon which it is founded.
The constitutional conclusion that must be drawn is that, according to a literal, systematic, and teleological interpretation of the Venezuelan constitutional text, the forced and involuntary kidnapping of the President of the Republic does not constitute any of the exhaustive grounds for absolute absence provided for in Article 233. Consequently, such a situation must be classified as a temporary absence in the terms of Article 234, activating the constitutional replacement of the Executive Vice President for the initially foreseen period of ninety days, extendable by decision of the National Assembly for an equal period.
After the maximum period of one hundred and eighty days has elapsed, the National Assembly retains the power to evaluate the situation, but this evaluation must be carried out within the framework of the specific grounds outlined in Article 233. Since the kidnapping does not fall under any of these grounds and the democratic mandate of the elected President remains in effect, the National Assembly would lack the constitutional basis to declare an absolute vacancy. Consequently, the Vice President's interim appointment should be maintained until the cause of the temporary absence ceases through the President's release or until the natural end of the constitutional term, whichever occurs first.
This interpretation guarantees that there is no power vacuum or mechanism to declare an automatic presidential vacancy due to forced kidnapping, simultaneously preserving constitutional legality, the democratic legitimacy of the popular mandate, and the institutional continuity of the State. The Executive Vice President must, therefore, remain as Head of State and Government until the end of the term or until the cause of the temporary absence ceases, without invoking the grounds of absolute vacancy, always in strict adherence to the current constitutional order and the fundamental principles that underpin the democratic and social State of Law and Justice proclaimed by the Constitution of the Bolivarian Republic of Venezuela.
Note: Seizure, extraction or whatever you want to call it to try to declare absolute absence will be inadmissible since it is not provided for in article 233.
THERE IS NOTHING MORE EXCLUSIONARY THAN BEING POOR
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