Thursday, January 10, 2013

Full Text of Venezuelan Supreme Court Decision Postponing Chavez's Inauguration


By application lodged on 21 December 2012, the citizen Marelys D'Arpino, holder of identity card No. 3883856, registered with the Social Security Institute of the Advocate under No. 13,961, filed with the Secretary of the Board Constitutional demand for constitutional interpretation on the content and scope of Article 231 of the Constitution of the Bolivarian Republic of Venezuela.

On the same occasion of his presentation, he realized in room and was designated as rapporteur Lamuño Judge Luisa Estella Morales, who along with the other Justices and Judges of the Constitutional Court unanimously signed this decision.

Done corresponding analysis passes Venue to decide after the following considerations:

I
DEMAND

The citizen Marelys D'Arpino, identified above, founded his claim of constitutional interpretation on the basis of the following arguments:

That "the letter of Article 231 of the Constitution refers to presidents-elect, that after an election process is (sic) winner (sic) of the Fee president, and therefore constitutional formality device is prerequisite for beginning of his term and not as in the case of President Hugo Chavez, who is seamless exercise the office of President of the Bolivarian Republic of Venezuela ".

That "however at this time in which Hugo Chavez is undergoing health treatment outside the country, in the Republic of Cuba and given the proximity of the January 10 [2013], [create] help with this application, perhaps in conjunction with others, to which [this] Court worthy clarify the situation in the country commented (sic) ".

That, by virtue of the foregoing, claims that "interpret the scope and content of the letter of Article 231 of the Constitution of the Bolivarian Republic of Venezuela, as to whether, formality Induction scheduled for 10 January 2012 [rectius: 2013] is not a formality or sine qua non for [that] a Reelected President, continue in office [and] [a] or herself, ask [a] is interpreted if such formality may be suspended and / or fixed for a later date. "

II
COMPETITION
In order to determine the competence of the Constitutional Court to hear the petition submitted to its analysis, it appears that the applicant gave the interpretation of Article 231 of the Constitution as to whether "the formality Induction scheduled for January 10 2012 [rectius: 2013] is not a formality or sine qua non for [that] a Reelected President, continue in office [and] [a] or herself, ask [a] is interpreted if such formality may be suspended and / or scheduled for a later date. "

The power to settle disputes arising in connection with the interpretation of constitutional norms and principles, in his role as supreme and ultimate interpreter of the Constitution in terms of Article 335 postulates, in accordance with Article 336 eiusdem was recognized early by this Court by judgment n ° 1.077/2000 (case: Servius Tullius Lion) as a mechanism for integrating the provisions pertaining to the "constitutionality block" and essential guarantee of the normative character of the Constitution recognized in Article 7 (cf. among others, Case number 1415/2000, if: Freddy Rojas Rangel, 1563/2000, if: Alfredo Peña and 1860/2001, if: Barinas State Legislative Council).

Meanwhile, the Organic Law of the Supreme Court of Justice upheld the doctrine discussed, establishing in its Article 25.17 of this competition room "Knowing the request for interpretation of rules and principles that make up the constitutional system."

This well, in accordance with precedent and noted attention to the provisions in the aforementioned organic text layout functions governing the Maximum Court, inasmuch as this court has been urged to clarify the scope of Article 231 of the Constitution of the Bolivarian Republic of Venezuela, this Court is competent to decide the matter submitted to it. So declares.

III

ADMISSIBILITY
In order to determine the admissibility of the demand for cars, the Board considers it appropriate to emphasize his teaching on the eligibility conditions to which this particular subject is merely declarative demand (see, inter alia, Case number 1077/2000, 1347 / 2000 and 2704/2001).

In this sense, this doctrinal development has established the following grounds of inadmissibility of the action of constitutional interpretation:

1. - The lack of legitimacy of the plaintiff, understanding that this quality is given by the direct link it with a particular case, with a view to providing a practical use for this special action to prevent becoming an academic exercise.

2. - When there is reasonable doubt as to the content, scope and applicability of the constitutional provisions in respect of the factual situation in which he finds the plaintiff.

3. - When the Court has resolved the alleged doubts about the same or a similar case, persisting in her mind to keep it.

4. - When using this approach as a mechanism to advance a ruling on a case brought before another court or to replace any ordinary means by which, the judge jurisdiction to recognize, can clarify the doubt raised. That is, when exercised, intended purpose aclarativa overflow.

5. - When the claim interpretive accumulate another of a different nature or subject to mutually exclusive procedures.


6. - When not accompanied by the documents necessary to verify whether the application is admissible.

7. - When written concepts unintelligible or contains offensive or disrespectful.

With respect to the right to bring the demand for constitutional interpretation has been pointed out that such a condition is given by the plaintiff's direct link with a specific case, the resolution of the constitutional order gives rise to a reasonable doubt, that warrants that be mobilized this Constitutional Court in order to resolve the uncertainty as to the maximum possible text. In this sense, in the oft-mentioned decision No 1077/2000 (case: Servius Tullius León), the Board made it clear that:

"[Q] hoever try the 'action' of constitutional interpretation either as public or private person, must now invoke a legal interest, legitimate, based on a concrete and specific legal situation in which it is, and that necessarily requires interpretation constitutional rules applicable to the situation in order to terminate the uncertainty that impedes the development and effects of the legal situation. Finally, there must be a legitimate interest, manifested by failing to properly enjoy the legal position is, because of uncertainty, doubt widespread ".

In this case, a refinement, that the legitimacy of the plaintiff resides in the high public interest that a final judgment has for all citizens, in order to avoid disruptions in the exercise of the executive branch and, especially, preservation of the sovereign will of the people expressed in the presidential election held on October 7, 2012, which was re-elected President Hugo Chavez, who is receiving medical treatment outside the Republic upon authorization of the National Assembly and, in response thereto, it is unlikely his appearance at the headquarters of the legislature on January 10 this year.

Second, the plaintiff raises a reasonable doubt in the provision whose interpretation is required in relation to the possibility of estimating the solemnity of the oath as an act not essential in the case of a re-elected President, and therefore capable of being deferred without altering the performance of public functions of the executive.

With respect to the newness of the matter, the factual narrative is unprecedented in the jurisprudence of the Court, because although in failure numbers 457/2001 (Green Francisco Encinas and others) and 759/2001 (case: William Lara ) stated that Article 231 of the Constitution (among other normative studied) required no interpretation to complete its meaning, it is said in the face of doubts raised for consideration at that time, referring exclusively to the length of the presidential term . 

In contrast, in the case now under the analysis of the Board, is not in doubt, the term of office, which, as was determined at that pronouncement, is six years from 10 January of the relevant constitutional, but if reelected President's inauguration on 10 January next year, it is essential for the continuation of its mandate. Moreover, there is no specific legal precedent regarding the timing of the presidential inauguration in our republican history

Moreover, it is noted that there are no other procedural means to elucidate the claim, or other action accumulation which could be mutually exclusive or incompatible whose procedures will result.

Finally, we see that the application was made in clear and not contain offensive or disrespectful concepts and, for those reasons, this Court supports that interpretation. So you decide.

IV
THE URGENCY OF THE MATTER
Based on the statements contained in case law number 226/2001, and 1.547/2011 1.684/2008, considering, first, that this case is very right, while not requiring the evacuation of evidence to be focused on obtaining an interpretive ruling and, on the other hand, in view of the imminence of January 10, 2013 as opportunity indicated in Article 231 of the Constitution for the inauguration of the "successful candidate" before the National Assembly, in accordance with Article 7 of the Code of Civil Procedure, applicable extra remission Article 98 of the Organic Law of the Supreme Court, in accordance with Article 145 eiusdem, the Board considers it appropriate to enter without further proceedings to decide this case. So you decide.

V
CONSIDERATIONS FOR DECIDING
The constitutional provision whose interpretation is required states:

"Article 231: The chosen candidate or candidate elected will take office as President of the Republic on 10 January of the first year of his constitutional term oath before the National Assembly. If for any reason befallen the President of the Republic could not take possession before the National Assembly, will the Supreme Court of Justice. "

The plaintiff alleged the existence of a question of interpretation as to whether "the formality Induction scheduled for January 10, 2012 [rectius: 2013] is not a formality or sine qua non for [that] a Reelected President, continue to exercise duties [and] [a] or herself, ask [a] is interpreted if such formality may be suspended and / or fitness for a later date. "

Initially, the Board considers it imperative to clarify the oath set out in the provision cited can not be treated as a mere formality devoid of substrate and therefore dispensable without further consideration. 

The swearing in ceremony as solemn for the exercise of public functions is a delicate tradition deeply rooted in our history and seeks ratification Republican, against a constituted authority and publicly, the commitment to ensure compliance of the rectum law, in carrying out the duties of which has been invested a certain person.

For the President, it must take place before the National Assembly, as the representative body of the various social forces that make up the town on 10 January of the first year of his constitutional term. Now if by "any supervening reason", according to the above standard, the same does not occur before that body and the aforementioned opportunity, should be given the oath before the Supreme Court, without a specific opportunity noted for it. That is, in any event, the swearing in ceremony must take place, but by force of circumstances ("any supervening reason") is carried out in conditions of manner and place.

The separation of the prayers said device comprising regulatory and followed by a period, underpinning the interpretation given. The Board considers it essential to conduct the aforementioned dimension with the aim of clarifying the question of interpretation that really justifies this decision aclarativa, knowing that the mood of the plaintiff is not restricted merely to consider whether the swearing in of the President is a dispensable formality (which and was denied), but to determine with certainty the legal effect of attendance or non-attendance to the act of "swearing and swearing to the National Assembly", on January 10 next, by the President reelected.

For this purpose, the interpretation must be applied according to the principles on which it rests axiological the Venezuelan Constitutional State (vid. fault n ° 1309/2001 of the Constitutional Court). In this regard, it is essential to consider the human right to health and the principles of justice, preservation of popular will-represented in the electoral process of the October 7, 2012 - and continuity of public authorities, which will analyze later in the Constitutional Chamber of the ruling body.

For now, it should refer to both the Charter of 1961, as in 1999, the beginning of the constitutional term, the inauguration and the swearing in of President agree in principle, under the rules laid down in Articles 186 repealed the Constitution and 231 of the Constitution.

In this sense, provided the article 186 of the Constitution of 1961 as follows:

"Article 186. The successful candidate will take office as President by oath before the Chambers in joint session, within the first ten days of that they should be installed in its ordinary sessions of the year in the constitutional period begins. If for any reason unable to take the oath before the Chambers in joint session, will the Supreme Court of Justice. When President-elect will not take possession within the period provided in this article, the outgoing President resign his powers to the person named to replace him temporarily in case of absolute absence, according to the following article, who will exercise with as Charge of the Presidency of the Republic until the first takes office. "

Now, in relation to the outgoing President (in this case, re-elected), while the 1961 Constitution did not permit the extension of the mandate and ordered the resignation (delivery) of the latter, so that the outgoing President was supplied under the terms Article 187 eiusdem (in principle, by the President of the Congress), in the current 1999 Constitution such provision appears not collected.

Reiterating the provisions of this Court by failures numbers 457/2001 and 759/2001, it should be appreciated that the repeal of the Constitution of the Bolivarian Republic of Venezuela to the provisions for this case in Articles 186 and 187 of the Charter of 1961, prevents consider that, once the presidential term, should proceed as if it were an absolute failure, the effects of substitution cover interim President of the National Assembly, as cited articles available to the ordinance repealed. 

The change in the constitutional regulation and considered, clearly due to a change in the constitutional scheme, in a novel way, supports the possibility of immediate reelection successively banned in the previous Charter (Article 230 of the Constitution, amended as of February 15, 2009-Amendment No. 1 -).

In this regard, have not been provided expressly as grounds for absolute lack, the culmination of the period can not be regarded as such, since Article 233 provides only the circumstances that give rise to it. Moreover, the lack of swearing before the National Assembly on January 10, also produces no such luck, as the same rule acknowledges that the solemnity is made at this high court, on a date which can only be after that.

Add yourself as in the case of an authority reelected and therefore relegitimada by the will of the sovereign, would imply a contradiction egregious considering that in such a case, there is an undue extension of a mandate to the detriment of the successor, as the person you mandated by fenecer falls matches the individual who will take office. Nor is there any alteration of the constitutional period as the basic text indicates a clear opportunity for beginning and end: January 10 following the presidential elections, for a period of six years (Article 230 eiusdem).

Bear in mind the need to preserve the people's will expressed in the electoral process, so as to be clearly fraudulent to it considering that the solemnity of the oath, the opportunity pre January 10 and before the National Assembly, assume a sort of absolute failure, not only does the Constitution expressly includes, but antagonizes the free choice made by the sovereign, in clear disregard of the principles of popular sovereignty and democracy and participatory protagonist who apply Articles 2, 3, 5 and 6 of the Basic Text.

Furthermore, it must be stated that the vote is a direct manifestation of the exercise of popular sovereignty (Article 5 of the Constitution) by the holder and that is a characteristic feature of participatory democracy (Article 6 eiusdem). In this regard, the Constitutional Court judgment in 1680/2007 stated that, upon exercise of suffrage, "comes into play a fundamental value of our full text regards the highest regulatory role has been recognized to the popular will, as a manifestation of the exercise of the participatory democracy, which clearly derives axiological content of articles 2, 3 and 5 of the Constitution of the Bolivarian Republic of Venezuela, with vast development in the open catalog of political rights, especially those contained in Chapter IV of Title II of our Constitution. "

Any attempt to cancel an election and / or an elected official desproclamar by any constituted power, apart from a constitutional provision expressly and ignoring "the preponderant role of the electoral body once it has been manifested his will in electoral process "would make the free expression of the popular will to" operating technique, taking into consideration-also-political and institutional trauma involving the forced divestiture of an elected official ... ", as this Court expressed in the decision cited supra.

So that, by not evident of Article 231 and Article 233 eiusdem concerned an absolute absence, it must be concluded that any failure to attend the inauguration scheduled for January 10, 2013 does not extinguish or cancel the new mandate for hold the Presidency of the Republic, or invalidate which had held.

At this point, it should refer to the "Principle of Continuity Management" as a technique that prevents paralysis in public service delivery. According to the teaching and administrative practice under that principle, the person designated for the exercise of a public function should not cease in the exercise of its powers and authority, until he has been appointed to succeed the corresponding (vid. judgment No 1300/2005).

In relation to the stated principle of continuity, in the case that now occupies the room, it is unacceptable that in the existence of a time lag between the start of the constitutional period (January 10, 2013) and the inauguration of a president reelected considered (without the fundamental text paute so) that the government (outgoing) is ipso facto nonexistent. It is conceivable that by the fact that there is no timely "swearing" to the National Assembly the Executive is empty and each of their bodies, even less if the Constitution itself admits that such an act can be deferred for a further opportunity to this Supreme Court.

In this regard, we reiterate, as noted by this Court in the aforementioned judgments numbers 457/2001 and 759/2001, not to be confused "the opening of the office of the President with the takeover, it is necessary to distinguish terms fully" . Indeed, the new presidential constitutional period starts January 10, 2013, but the constituent foresaw the possibility that "any supervening reason" impede the President's oath before the National Assembly, for which in this case determined that he would to the Supreme Court, which necessarily have to be a posteriori.

Moreover, the vacancies are not automatic nor absolute must presume. These are specifically provided for in the Constitution and Article 233, unlike what possessed Articles 186 and 187 of the 1961 Constitution, the sworn impossible (for reasons occurring) on ​​January 10, 2013, is not expressly provided as causal of absolute failure.

Note, further, if there were still doubts, that in the case of President Hugo Rafael Chavez Frias, is not a candidate who takes a position for the first time, but a Head of State and Government has continued to play their duties and, as such, will continue in the exercise thereof proceed until sworn before the highest court in the event that he could not attend the event scheduled for January 10, 2013 at the headquarters of the legislature.

Thus, despite the January 10 begins a new constitutional term, the lack of swearing on that date does not mean the loss of the status of President Hugo Rafael Chavez Frias, or acting as President, or as a candidate reelected , continued to exist under the tenure.

For the same reason, it retains its full force the permission granted by the National Assembly, for health reasons, to leave the country for more than five (5) days and not set the same temporary vacancy by not expressly convened Executive Vice President will supply it for failure or inability to perform his duties.

In this connection, it must be noted that Article 156, cardinal 2, of the Constitution of the Bolivarian Republic of Venezuela, states that it is for the National Government (in any branch): "The supreme defense and surveillance the general interests of the Republic, the preservation of the public peace and the proper enforcement of the law throughout the national territory. "

This allocation generally must be exercised based on the principles of competition law and expressly recognized in Article 137 eiusdem, which reads: "This Constitution and the law defining the powers of the organs exercising Public Power, which activities should be subject to "post.

            In view of the foregoing, it must be bounded by the President of the Republic is the Head of state and the National Executive, "as such, conducts government action" (Article 226 of the Constitution). In this regard, the President "is responsible for his actions and compliance with the obligations inherent in his position" (Article 232 of the Constitution, heading).

            Based on these provisions, it warns of the Constitution, specifically Article 235, that if the President requires leave the national territory, must request "authorization of the National Assembly or the Executive Committee, when they last longer than five consecutive days. " Now, this article refers exclusively to the authorization to leave the country, not to formally declare the temporary absence in office.

In summary, the Constitution sets a term for the swearing in the National Assembly, but ordains result for the case that by "supervening reason" it can not be complied with in a timely manner and, on the contrary, expressly acknowledges that possibility , pointing to possible the oath before the Supreme Court. Hence, this can not be understood as a causal eventual absence of the absolute, as it is not expressly provided as such by Article 233 ejusdem, or can be assimilated to dereliction of duty, to be an authorization granted by the National Assembly to leave the territory Republic for medical treatment, preserving as Head of State and Government and discarding also the existence of a temporary absence.

Summing up the position maintained throughout this ruling, we conclude the following:

(I) To date, President Hugo Rafael Chavez Frias has been absent from the country, for health reasons, for periods in excess of "five consecutive days", with the authorization of the National Assembly, in accordance with the provisions Article 235 of the Constitution, the last of which is fully in force and was ratified at a meeting of the National Assembly dated January 8, 2013.

(Ii) It should be noted that the absence from the territory of the Republic automatically configure a temporary lack in terms of Article 234 of the Constitution of the Bolivarian Republic of Venezuela, without expressly so provides the Head of State by order specially written for this purpose.

(Iii) In contrast available to the articles 186 and 187 of the Constitution of 1961, which ordered that if there is a lag between the start of the constitutional term and the inauguration, the outgoing President should give the mandate to the President Congress and proceed "as if it were an absolute failure," the 1999 Charter expressly eliminated such foresight, which prevents the term of office to be considered a complete lack (which, moreover, is not referred to in Article 233 of the Constitution as grounds and would be absurd in the case of a re-elected and proclaimed President).

(Iv) Although the January 10 next starts a new constitutional period, no need for a new relationship inauguration President Hugo Rafael Chávez Frías, in his capacity as President reelected under disruption absence hold office.

(V) The swearing in of the President reelected can be performed at a later time to January 10, 2013 in the Supreme Court of Justice can not be done that day to the National Assembly in accordance with the provisions of Article 231 of the Constitution. This act shall be fixed by the Supreme Court, once there is evidence of the cessation of the reasons which have occurred that prevented the swearing.

(Vi) In regard to the principle of continuity of public authorities and the preservation of the people's will, it is not acceptable to the existence of a time lag between the start of the constitutional term and the inauguration of a president reelected, is considered ( without the fundamental text paute so) that the government is ipso facto nonexistent. Accordingly, the executive branch (consisting of the President, Vice President, Ministers and other bodies and government officials) continue to exercise fully their duties on the basis of the principle of administrative continuity.

It is, for the reasons stated, settled constitutional interpretation applied in this case. So finally decided.
DECISION
For the reasons set forth above, the Constitutional Chamber of the Supreme Court, to administer justice in the name of the Republic by authority of the Act:

1. - Has jurisdiction to hear the application of constitutional interpretation by the citizen attempted Marelys D'Arpino, identified above, about the content and scope of Article 231 of the Constitution of the Bolivarian Republic of Venezuela.

2. - Supports the application filed and declared the urgency of this matter.

3. - RESOLVED, in accordance with the considerations in the relevant part of this ruling, the interpretation sought on the scope and content of Article 231 of the Constitution of the Bolivarian Republic of Venezuela and, therefore, provides:

(I) To date, President Hugo Rafael Chavez Frias has been absent from the country, for health reasons, for periods in excess of "five consecutive days", with the authorization of the National Assembly, in accordance with the provisions Article 235 of the Constitution, the last of which is fully in force and was ratified at a meeting of the National Assembly dated January 8, 2013.

(Ii) It should be noted that the absence from the territory of the Republic automatically configure a temporary lack in terms of Article 234 of the Constitution of the Bolivarian Republic of Venezuela, without expressly so provides the Head of State by order specially written for this purpose.

(Iii) In contrast available to the articles 186 and 187 of the Constitution of 1961, which ordered that if there is a lag between the start of the constitutional term and the inauguration, the outgoing President should give the mandate to the President Congress and proceed "as if it were an absolute failure," the 1999 Charter expressly eliminated such foresight, which prevents the term of office to be considered a complete lack (which, moreover, is not referred to in Article 233 of the Constitution as grounds and would be absurd in the case of a re-elected and proclaimed President).

(Iv) Although the January 10 next starts a new constitutional period, no need for a new relationship inauguration President Hugo Rafael Chávez Frías, in his capacity as President reelected under disruption absence hold office.

(V) The swearing in of the President reelected can be performed at a later time to January 10, 2013 in the Supreme Court of Justice can not be done that day to the National Assembly in accordance with the provisions of Article 231 of the Constitution. This act shall be fixed by the Supreme Court, once there is evidence of the cessation of the reasons which have occurred that prevented the swearing.

(Vi) In regard to the principle of continuity of public authorities and the preservation of the people's will, it is not acceptable to the existence of a time lag between the start of the constitutional term and the inauguration of a president reelected, is considered ( without the fundamental text paute so) that the government is ipso facto nonexistent. Accordingly, the executive branch (consisting of the President, Vice President, Ministers and other bodies and government officials) continue to exercise fully their duties on the basis of the principle of administrative continuity.

Published and register. Filed the record. Refer immediately certified copy of this judgment to the Attorney General of the Republic and President of the National Assembly. Be it done as ordered.

Given, signed and sealed in the courtroom of the Constitutional Chamber of the Supreme Court, in Caracas, on the 09 th day of January, two thousand thirteen (2013). Years: Independence 202 º and 153 º of the Federation.