One of the fundamental issues that a Constitution must regulate is what happens when the head of State is absent. The most important scenario is how to proceed when the president’s absence is absolute, that is, when it is known that he will no longer serve as president permanently.
So what should happen in Venezuela when the president of the republic is absent?
The two scenarios of presidential absence: Under the 1999 Constitution, there are two scenarios of presidential absence: temporary absence and absolute absence. The Constitution implicitly categorizes all scenarios of absence into one of these two: either the president is temporarily absent, or the president is absolutely absent. The Constitution assigns different consequences to each scenario.
Constitutional rules regarding temporary absence: If the absence is temporary, the vice president fills the vacancy for a period of 90 days, which may be extended by the National Assembly for up to another 90 days. If the temporary absence extends beyond 90 days, the National Assembly may, by a majority vote, consider the absence to be permanent (Article 234). After these 90 or 180 days have elapsed, depending on whether or not the period is extended, the absence must necessarily be considered permanent. Consequently, in accordance with Article 233 of the Constitution, elections must be held within 30 days of the permanent absence.
Constitutional rules regarding permanent absence
If the absence is permanent and occurs within the first four years of the constitutional term, elections must be held within 30 days of the permanent absence (Article 233). The Constitution lists, in a non-exhaustive manner, the circumstances of absolute absence (that is, there may be other reasons, such as the president’s removal and imprisonment abroad): death, resignation, or removal from office decreed by a TSJ ruling; permanent physical or mental incapacity certified by a medical board appointed by the TSJ and approved by the National Assembly; abandonment of office, declared as such by the National Assembly; and referendum recall of the president.
The Constitution distinguishes how to proceed in the event of the president’s absolute absence depending on the time elapsed since the beginning of the presidential term.
Under the 1999 Constitution, there is no constitutional provision that supports Maduro’s forced absence. His absence is either temporary, to which the rules of temporary absence must be applied, or permanent, to which the Constitution also says what to do.
When the president-elect becomes absolutely absent before taking office, a new universal, direct, and secret election will be held within the following 30 consecutive days. While the new president is being elected and takes office, the president of the National Assembly will assume the presidency (this was the rule used analogously to support then-Speaker Juan Guaidó as interim president in 2019).
If the president’s permanent absence occurs during the first four years of the constitutional term, a new universal, direct, and secret election will be held within the following 30 consecutive days. While the new president is being elected and takes office, the executive vice president will assume the presidency. In the aforementioned cases, the new president will complete the corresponding constitutional term. If the permanent absence occurs during the last two years of the constitutional term, the executive vice president will assume the presidency until the end of that term.
Maduro’s absence occurred within the first four years of the presidential term.
What the Supreme Tribunal of Justice has said
What has been the TSJ’s position on Maduro’s absence and the constitutional consequences of that absence? First, it issued a ruling on January 3rd ordering that Delcy Rodríguez, as executive vice president, assumes and exercises, in an “acting” capacity, all the powers, duties, and faculties inherent to the office of president.
It characterized Maduro’s absence as “forced.” However, it did not specify whether this absence is temporary or permanent.
Therefore, the Constitutional Chamber considers that Maduro is in a forced absence, which must be filled by Delcy Rodríguez.
Under the 1999 Constitution, there is no constitutional provision that supports Maduro’s forced absence. His absence is either temporary, to which the rules of temporary absence must be applied, or permanent, to which the Constitution also says what to do. There’s no situation such as “forced absence”. That “forced absence” of Maduro, from which the “interim” presidency of Delcy Rodríguez derivates, is based only on the sentence issued by the Constitutional Court on January 3.
Furthermore, Rodríguez is simultaneously holding the acting presidency (and therefore cannot be considered executive vice president) and the Ministry of Hydrocarbons. In Venezuela, ministers are appointed by the president. Therefore, the only person who could remove Rodríguez as minister is Rodríguez as President. A constitutional absurdity.
If the extension is declared, it will expire on July 3. From that day, 30 days must elapse within which the presidential election must be held.
There’s an additional peculiarity: in Official Gazette No. 6,963 of January 14, a ruling was announced by which the Constitutional Chamber supposedly had the authority to “determine the applicable legal framework to guarantee the continuity of the State, the administration of government, and the defense of sovereignty in the event of the forced absence of the President of the Republic.” That is, the Constitutional Chamber was or is going to issue a posterior sentence to define the constitutional route after Maduro’s absence.
However, at the time of writing, this ruling has not been published on the Supreme Court’s website. This is an anomaly, since the general rule is that when a ruling is published in the Official Gazette, it has already been published on the Supreme Court’s website several days prior. Something happened within the regime that led its leaders to decide it would be better not to publish such a sentence.
We can assume that the acting president and the Supreme Tribunal of Justice consider Maduro’s absence to be temporary. Under that scenario, according to the Constitution, on April 3, 2026, the National Assembly could extend Delcy Rodríguez’s acting presidency for another 90 days.
If it does not, the Constitution requires us to assume that Maduro is permanently absent, and elections must be held within the following 30 days.
If the extension is declared, it will expire on July 3. From that day, 30 days must elapse within which the presidential election must be held.
Any other solution has no basis in the 1999 Constitution.
And that is something that should be discussed.