What should be done with Venezuela’s interim government?

Venezuela’s interim government should be replaced with a Political Transition Board that represents the plurality of the country’s political forces and civil society, including chavismo. Its function should not be to pretend to establish itself as an alternate presidency, but to attend to the defense of assets and the diplomatic representation of Venezuela in countries that do not have relations with the Maduro government.

On January 4, 2022, the one-year period for which the National Assembly elected in 2015 (2015AN) delegated the functions of the Legislature to the Delegated Commission will come to an end. As a result, the authority of the interim government headed by the president of the National Assembly, Juan Guaidó, to assume the powers of the Presidency of the Republic will also come to an end. Faced with this situation, both the international community and Venezuela’s democratic forces must consider what should be the next step to help Venezuela resume the path to democracy and address its serious economic and humanitarian crisis.  

That the end of the interim government will occur in less than two months is clear from the text of the Statute Governing the Transition to Democracy approved by the 2015AN on December 26, 2020. Article 12 of the statute specifies without ambiguity that: 

“The constitutional continuity of the National Legislative Power will be exercised by the National Assembly elected on December 6, 2015… until free, fair and verifiable presidential and parliamentary elections are held in 2021 , an exceptional and unexpected political event occurs in 2021 , or up to an additional annual parliamentary term from January 5, 2021. ” (emphasis added) [1]

while article 15 of the same statute explicitly states that the President of the National Assembly will exercise his functions “under the periods and circumstances determined in article 12 of this statute.”

However, this is much more than merely a legal discussion. The political reality is that there are serious questions about the usefulness of the figure of the interim government for the current and future strategy of the Venezuelan democratic forces. If the problem were only legal, there should be no problem solving it with another temporary extension. Of course, there are questions about the authority of the 2015AN to do this, but they are not different from those that were made to the first extension approved at the end of 2020 – which were not an impediment to its recognition by the United States and other key countries. [2]  

In addition to its effect on political dynamics, the decision of what to do with the interim government can have significant economic and financial implications. A poorly managed transition could put billions of dollars in Venezuelan assets abroad at even greater risk, and create a vacuum in international relations with the countries that today recognize the interim government. It is no coincidence that the political forces that back Juan Guaidó have highlighted precisely these risks in their argument in favor of maintaining international recognition for the interim government. [3] 

The underlying problem is that it is becoming clearer every day that the group that promotes the continuity of the interim government seems to lack political support to achieve either a vote in favor of an extension within the Assembly, or political support for the continuity of the figure of the interim government outside of it. Some of the main leaders of the parties that make up the Unitary Platform have already publicly expressed their rejection to an extension, [4] while the approval of Juan Guaidó in opinion studies has fallen to levels that are not statistically different from those of Nicolás Maduro.[5] It is striking that the statement published by several opposition political parties supporting the continuation of the interim government on November 11 had the support of parties that represent only 18% of opposition seats in the 2015AN.  

Given this lack of domestic political support for the renewal of Guaidó’s mandate, it would be a serious mistake for the United States to extend his recognition as interim president in the absence of its ratification by the 2015AN.[6] Recognition decisions cannot be disassociated from a diagnosis of the political reality of the country in question. To continue endorsing the figure of an interim government led by an increasingly isolated faction of the opposition does nothing more than impede a much-needed renewal of the opposition leadership, while at the same time sending the very negative signal that legitimacy of origin considerations have little weight in these decisions.

The political difficulties in gaining support for the renewal of the interim government’s mandate seem to be the main reason why some legal experts close to Guaidó have begun to argue that the 2015AN does not have the power to limit the duration of the interim government. [7] Guaidó himself has highlighted the decision to remain in office until free elections are held [8] as premised on the direct reading of Article 233, which reads:

“While the new President or the new President is elected and takes office, the President of the National Assembly will be in charge of the Presidency of the Republic.” [9]

Obviously, interpretation of this article can give rise to various positions that may seem reasonable in terms of whether or not an indefinite extension could be justified. But getting trapped in the legal debate would be losing the forest for the trees. In the current Venezuelan context, where there is no accepted arbiter to resolve questions of constitutional interpretation, the reading of the country’s Charter becomes just one more rhetorical element used by parties to justify their actions. There will always be reasonable legal interpretations to justify almost any action as consistent with some reading of the constitutional text. Rather, the question we must ask ourselves is which of these interpretations allow us to pursue political strategies that can help bring us closer to the objectives sought, and in particular to the reestablishment of democracy in Venezuela.

In this article, I formulate a proposal designed to address the problems that arise as a result of this situation in a way that helps direct the opposition’s effort towards putting the country on the path to the restoration of democracy. This proposal seeks to create an instance that can take charge of the management of assets and international relations that are currently in charge of the interim government and that has the legitimacy of broad, representative and plural support from Venezuelan society. 

THE TRANSITION BOARD PROPOSAL

The proposal consists in the appointment by the National Assembly elected in 2015 of a Political Transition Board tasked with carrying out the functions of the presidency in the relevant economic, financial and diplomatic areas involving countries that currently recognize the interim government. The composition of this board should represent not only the factors that are today grouped under the Unitary Platform coalition. It must also include representatives from the political forces that support the government of Nicolás Maduro, political groups that are not part of either of these two blocs, and civil society.  

It is indisputable that the vast majority of Venezuelans do not feel represented by any of the political coalitions currently vying for power. That’s why the members of the Political Transition Board must not just be legislators of the 2015AN, but must also include representatives from broader civil society. These civil society representatives would ideally come from sectors with broad legitimacy in public opinion, such as the church and business organizations. We also recommend that this board take decisions by majority vote and have a rotating presidency, in order to make it clear that no space is being created to concentrate power on any individual.   

The AN2015 legislators that form part of the Political Transition Board must not come just from the parties that form part of the Unitary Platform. Recall that, although the 2015 elections gave the opposition coalition a very significant victory, its share of seats has fallen as a result of divisions and defections, leading the Unitary Platform to have at best a razor-thin majority in the legislature. The results of the regional elections of November 21 will provide us with an indication of the relative support that different groups can count on among the voters. In any case, the objective must be to achieve a genuinely plural representation of Venezuela’s political diversity, and not just the control of a political group.


The interim government should be replaced with a board that truly represents the political diversity of today’s Venezuela. 


Perhaps the most important thing is to understand what the Political Transition Board would not seek to be. It would not seek to be a government or exercise the presidency of the Republic. It is an instance that arises from the recognition of a fact, which is that the current government with de facto control of the national territory does not have the recognition of important internal and international actors, and that an entity is necessary to assume the conduct of the country’s affairs before those actors who do not recognize the government of Nicolás Maduro. Therefore, the Political Transition Board would be in charge of the functions of the Executive Branch of which the interim government has been in charge until today. Among these, the most relevant are the diplomatic representation of Venezuela vis-à-vis countries that do not formally recognize the government of Nicolás Maduro and the management of assets and liabilities in the jurisdictions of those countries.  

Beyond these functions, the main objective of the Political Transition Board should be to contribute to the reestablishment of the constitutional order through the reunification of the international legal powers of the Venezuelan government as of the next truly democratic presidential election held in the country. In this sense, the Political Transition Board would have an end to its raison d’être if presidential elections are held in Venezuela that comply with international standards of transparency and competitiveness. This could happen in 2024 or earlier, if it resulted from a political agreement or a constitutional initiative such as the recall referendum.  

The plural constitution of a Political Transition Board in which Venezuelans would be represented by a truly plural cross-section of political groups and civil society organizations would open the door to the creation of an effective instance for the search for agreements to address the urgent problems of Venezuelans and seek the country’s reinsertion into the global economy. The experience, so far unsuccessful, of negotiations between the Unitary Platform and the Government of Nicolás Maduro in Mexico City suggests that a more inclusive process of political negotiation may be necessary for Venezuelans to feel and be truly represented.

INTERNATIONAL IMPLICATIONS OF A NEW SCHEME

Until now, the countries that recognize the interim government do so as an extension of their recognition of the 2015 National Assembly as the last Venezuelan institution elected through free and fair elections. The appointment of a Political Transition Board would allow them to continue honoring this principle by recognizing an institution whose legitimacy emanates from that legislative body. At the same time, however, it offers a solution to the broader dilemma posed by the reluctance of an increasing number of international actors to extend recognition as a government to a political force whose political support in Venezuela is clearly on the ebb. Unlike the interim government, the Political Transition Board would be formed by a broad and plural representation of Venezuelan society and would not seek to tip the balance in favor or against any political group.


The Political Transition Board would make possible the coordination of efforts to address some problems of the Venezuelan economy that the division of state power has impeded. Today, the powers of the Venezuelan State are divided between those of the government that has de facto control of the territory and the one that has the authority to legally represent Venezuela in the countries that recognize it. This division has contributed to diminishing the capacity of the state to carry out some of its basic functions, such as the mobilization of resources to attend to the humanitarian crisis and the negotiation with creditors necessary to avoid the loss of foreign assets.


Unlike the interim government, the Political Transition Board would not seek to tip the balance in favor or against any particular political group


Consider, for example, the case of the nation’s assets abroad. At this time, there are legal procedures in the United States that seek the attachment or foreclosure of shares of the holding companies through which Petróleos de Venezuela controls CITGO. The sum of the claims that imply an immediate risk of loss of CITGO (ConocoPhillips’ award at the International Chamber of Commerce, the award in favor of Crystallex at ICSID, and the collateral on the PDVSA20 bonds) sum $ 4.4 billion, an amount that Venezuela could easily renegotiate through a payment agreement backed by future oil revenue streams. The interim government is unable to do this because it does not control the generation of that future revenue. A Political Transition Board could sign a legally valid payment agreement in coordination with the Maduro government that would save CITGO from falling into the hands of creditors.

The recognition of a Political Transition Board would also allow the United States to start looking for a way out of the current dilemma it faces, which is how to maintain its decision not to recognize Maduro’s presidency for the constitutional period that began in 2019 without continuing to recognize an unelected leader whose political capital and representativeness has fallen dramatically. The United States only has to reaffirm the principle that it recognizes the decisions of the 2015AN to assert its recognition of the Political Transition Board and thus transfer the right to legal and diplomatic representation of the Venezuelan State to the Board. In the absence of such a decision, there is a risk that the ambiguity of a diplomatic position regarding the recognition of the interim government as of January 5 will lead US courts to begin to formulate their own interpretations in matters of legal representation and diplomatic accreditation.

WHAT ABOUT MADURO?

The proposal for the 2015AN to appoint a Political Transition Board does not depend on the support of the government of Nicolás Maduro for this initiative. In fact, Maduro is highly likely to reject this option, at least initially. Under the proposed scheme (three 2015AN legislators plus two representatives of civil society), the United Socialist Party of Venezuela would have one of five seats on the Political Transition Board. Therefore, this board could function perfectly even in the absence of that member – in addition to the fact that its operating bylaws should allow the appointment of alternates to cover the absences of a principal member.   

However, the appointment of a plural board – in which the Unitary Platform would also possibly have only one member [10] – would make it possible to openly invite the Maduro government to participate in an effort to solve concrete and important problems of the country in a cooperative way. Although Maduro may resist the idea of ​​conferring legitimacy on a government instance that does not emanate from his presidency, this risk would be lessened by the fact that the Political Transition Board would not pretend to be an alternate government, but rather an instance to address the problem of carrying out government functions in cases where the Maduro government cannot. The Political Transition Board also offers something attractive to the Maduro government, which is the chance to regain influence – albeit only partial – over decisions that are currently fully under the control of its adversaries. In addition, the Political Transition Board allows the creation of a roadmap to solve the problem of dismemberment of the faculties of the Venezuelan State through the election of a new president in elections recognized by the international community, which will most likely take place in the year 2024.

If there is something that should be clear at this point in the evolution of Venezuela’s political crisis, it is that the attempt of the Venezuelan opposition and part of the international community to spark regime change through external pressure failed. This is not to say that we should set aside the goal of restoring the functioning of the country’s democratic institutions. It does mean that we should understand that a political transition in Venezuela will not occur unless it contemplates the creation of spaces for coexistence between the country’s dueling political factions. Venezuela’s opposition has the opportunity to take a step in that direction and to put an end to an experience that can no longer credibly claim to contribute to solving the country’s crisis. It is time to act with common sense and put our feet on the ground  


NOTES

[1]Estatuto que Rige la Transición a la Democracia para Restablecer la Vigencia de la Constitución de la República Bolivariana de Venezuela [Statute that Governs the Transition to Democracy to Restore the Validity of the Constitution of the Bolivarian Republic of Venezuela] , National Assembly elected in 2015, December 26, 2020.

[2]EE.UU. respalda a Guaidó y desconoce a nueva Asamblea Nacional. [US supports Guadó, ignores new National Assembly] . Deustche Welle, January 4, 2021.

[3] The national coordinator of the Popular Will (Voluntad Popular, VP) party, Leopoldo López, argued that the legitimacy and recognition granted by around 60 countries to the interim government has had a great impact on the management of assets abroad. “It even involved cases that recognized the legitimacy of Guaidó in judicial matters in the courts of England, the United Kingdom, the United States and that has had a tremendous impact,” he said. See Leopoldo López: Guaidó como presidente interino es la legalidad de la constitucionalidad. [Guaidó as interim president is the legality of constitutionality] , El Estímulo, October 19, 2021 and César Miguel Rondón interviews Leopoldo López , Leopoldo López, October 18, 2021.

[4] Among the opposition leaders who have publicly questioned a possible extension of the interim government, former presidential candidate Henrique Capriles Radonski and the presidential commissioner for Foreign Relations appointed by Guaidó, Julio Borges, stand out. Capriles assured that the interim government of Juan Guaidó, “died on April 30, 2019”, so that he will not support an extension of the mandate in 2022. “I am not going to raise my hand to agree with something that does not serve the Venezuelan people, “he said. See Henrique Capriles: El interinato se murió en 2019 [The interim government died in 2019] , El Impulso, October 20, 2021. Borges pointed out that the figure of the interim government “is not an end in itself”, but a means to achieve change in the country. “The dilemma is not whether or not to renew [the interim government], it is how to relaunch, redesign the focus. This path we are on is not the one,” he said. See Canciller opositor venezolano: la continuidad del gobierno de Guaidó “está en discusión” [Venezuelan opposition Foreign Minister: the continuity of the Guaidó government “is under discussion”], Voice of America, October 12, 2021.

[5] According to an October survey by the Datanálsiis polling company, 16.4% of Venezuelans view Guaidó’s performance positively, while 14.7% view Maduro’s performance positively. The difference between these two, 1.7 percentage points, is less than the survey’s margin of error of ±3,5%.

[6] Some have interpreted recent testimony given by Assistant Secretary of State Brian Nichols before a House Foreign Affairs Subcommittee as the announcement of such a decision, though a contextualized reading of the statement leaves clear that it is subject to many possible interpretations. See Subsecretario de Estado para asuntos occidentales dice que EEUU seguirá reconociendo a Guaidó. [US will continue to recognize Guaidó: Assistant Secretary of State] Runrunes, November 16, 2021.

[7] The former special attorney appointed by Guaidó, José Ignacio Hernández assured that the interim president’s term could legally last “until there are free and transparent elections,” justifying an extension of said period beyond January 4, 2022. ” The interim president’s mandate is not like pasteurized milk, which has an expiration date (…) Article 233 of the Constitution is very clear: The president of the National Assembly is president in charge until there are free and transparent elections, “he stated. See Hernández: “Con o sin gobierno interino, Maduro no es presidente legítimo” [“With or without an interim government, Maduro is not a legitimate president”], Politiks, October 5, 2021.

[8] Guaidó ratificó que no va abandonar a los venezolanos en la lucha y continuará hasta lograr elecciones presidenciales libres [Guaidó ratified that he will not abandon Venezuelans in the fight and will continue until achieving free presidential elections]. Centro de Comunicación Nacional, November 10, 2021.

[9] Constitution of the Bolivarian Republic of Venezuela with the Amendment N°1, dated February 15, 2009. Gaceta Oficial Extraordinaria No. 5908. February 19, 2009. 

[10] A key question would be how the two non-government legislator members of the board would be allocated among opposition political groups. According to our estimate, 86 of the 167 principal legislators elected in 2015 belong to parties of the Unitary Platform (PU), 53 to the pro-Maduro Great Patriotic Pole (GPP), and 28 to other political groups. A simple application of the D’Hondt rule would lead the PU to have two of three legislator seats in the Political Transition Board, and the GPP to have one. However, this does not prevent an agreement from being reached to guarantee a more plural representation so that one position is assigned to minority parties. The number of political representatives could also be increased to five, in which case minority parties would have one of them as a result of proportional representation. Another possibility is to readjust the representation of opposition groups according to the total votes obtained in the regional elections of November 21. More than reflect the application of a mechanical allocation rule, the Political Transition Board should seek to have a plural composition that ensures it counts with the support of a sufficiently broad group of political sectors, as well as civil society. The allocation rule should be thought of with this goal in mind.      

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