Venezuela is engulfed in a serious constitutional crisis. Sri Lanka too recently faced such a crisis. In such situations where there are two competing governments, the primary question which invariably arises is which of the two the international community should recognise.
The recognition of a new government is very different from the recognition of a new state. Recognition of government assumes importance only when the change in government is unconstitutional. Recognition may be of a de facto government or of a government in effective control of only part of the territory of the state.
Generally political considerations play a lead role in the decision whether or not to grant recognition to a particular government. Even though the change in government is by illegal means, practical realities dictate that once a new government effectively controls the country and such control seems likely to continue, recognition is generally not to be withheld.
A host of countries including the United States have recently recognized Juan Guaidó, the president of Venezuela’s National Assembly, as the legitimate interim president of Venezuela. Those countries have renounced the legitimacy of current president Nicolás Maduro. Some countries including China and Russia have criticised the decision as an effort to interfere in Venezuela’s internal affairs.
After the death of Hugo Chávez in 2013, Nicolás Maduro came to power.
The country has been engulfed in a humanitarian crisis as the economy has witnessed hyperinflation and scarcity of basic food items. In 2018, Maduro was re-elected to a second term but the elections were controversial with reports of manipulation. The opposition-led National Assembly invoked Article 223 of 1999 Constitution of Venezuela which deals with vacancies in the office of the president, by appointing Guaidó, the head of the National Assembly, as the interim president. Certain countries are recognising Guaidó as the legitimate government whereas others are continuing relations with the Maduro regime.
The Restatement (Third) of Foreign Relations Law of the United States
suggests that recognition is a formal acknowledgement that a particular entity possesses the qualifications for statehood or that a particular regime is the effective government of a state.
Earlier recognition was often affected by an express written or oral declaration. There are many ways of recognising a government. Receiving an ambassador is clear indication of recognising the sovereignty of the sending state. President Washington of the United States of America recognized the French Revolutionary Government by receiving its ambassador. The conclusion of a bilateral treaty or the formal initiation of diplomatic relations, including the dispatch of an ambassador, also leads to formal recognition.
In the Unites States, the President has been given the power to recognise a government. The US Supreme Court in Zivotofsky v. Kerry (2015, US SC) observed that the President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition. When President Roosevelt decided to recognize the Soviet Government of Russia, New York state courts declined to give full effect to the terms of executive agreements the President had concluded in negotiations over recognition of the Soviet regime. The state courts did not treat assets that had been seized by the Soviet Government as property of Russia and declined to turn those assets over to the United States.
In United States v. Belmont (1937), the US Supreme Court observed that recognition and establishment of diplomatic relations are within the competence of the President. The Supreme Court also observed that President’s authority is not merely limited to a determination of the government to be recognised. It also included the power to determine the policy which is to govern the question of recognition. Thus, the political department’s action in recognising a foreign government and in receiving its diplomatic representatives was held conclusive on all domestic courts and hence the New York state courts were required to respect the executive agreements.
Venezuela has now arraigned United States before the WTO alleging that Washington has imposed coercive trade-restrictive measures in the context of attempts to isolate Venezuela economically. It has also accused the USA of putting certain persons on the Specially Designated Nationals and Blocked Persons List, the United States blacklist. Venezuela has challenged Venezuela Defense of Human Rights and Civil Society Act of 2014, Venezuela Sanctions Regulations, Executive Orders Blocking Property and Suspending Entry of Certain Persons. It has further challenged certain coercive trade-restrictive measures concerning the sovereign debt market and coercive trade-restrictive measures concerning digital currency.
Venezuela Defense of Human Rights and Civil Society Act of 2014 allows the US President to impose certain sanctions with respect to any foreign person, including any current or former official of the Government of Venezuela or any person acting on behalf of that Government, who has perpetrated, or is responsible for ordering or otherwise directing, significant acts of violence or serious human rights abuses in Venezuela against persons associated with the anti-government protests in Venezuela or has ordered or otherwise directed the arrest or prosecution of a person in Venezuela primarily because of the person’s legitimate exercise of freedom of expression or assembly; or has knowingly materially assisted, sponsored, or provided significant financial, material, or technological support for, or goods or services in support of, the commission of certain acts.
In the famous Tinoco Arbitration [Aguilar-Amory and Royal Bank of Canada claims (Great Britain v. Costa Rica) (1923)], the Tinoco regime had seized power in Costa Rica by a coup and was not recognized by Great Britain. The regime had granted oil concession to a British company but after the overthrow of Tinoco regime, the new government did not want to honour it. It was observed that nonrecognition by other nations of a government claiming to be a national personality is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classed as such.
But when recognition vel non of a government by such nations id determined by inquiry, not into its de facto sovereignty and complete governmental control, but into its illegitimacy or irregularity of origin, their non-recognition loses some evidential weight on the issue with which those applying the rules of international law are alone concerned.
Rejecting the contention that as the Tinoco government was not established and maintained in accord with the constitution of Costa Rica of 1871 it should not be considered as a de facto government, it observed that to hold that a government which establishes itself and maintains a peaceful administration, with the acquiescence of the people for a substantial period of time, does not become a de facto government unless it conforms to a previous constitution would be to hold that within the rules of international law a revolution contrary to the fundamental law of the existing government cannot establish a new government. But that is not the rule. The change by revolution upsets the rule of the authorities in power under the then existing fundamental law and sets aside the fundamental law insofar as the change of rule makes it necessary. To speak of a revolution creating a de facto government, which conforms to the limitations of the old constitution is to use a contradiction in terms. The same government continues internationally, but not the internal law of its being. The issue is not whether the new government assumes power or conducts its administration under constitutional limitations established by the people during the incumbency of the government it has overthrown. The question is, has it really established itself in such a way that all within its influence recognise its control, and that there is no opposing force assuming to be a government in its place.
A constitutional crisis also erupted in Sri Lanka late last year when President Maithripala Sirisena suddenly removed Prime Minister Ranil Wickremesinghe of the United National Party. Sirisena then appointed former president Mahinda Rajapaksa as the new Prime Minister. But Rajapaksa could not secure the parliamentary majority needed to form a new government. But an adamant President then issued a Proclamation on 9 November 2018 dissolving Parliament. This was challenged before the Supreme Court of Sri Lanka.
In the matter of an Application under and in terms of Articles 17, 35 and 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka (Rajavarothiam Sampanthan v. Attorney General) (decided on 13 December 2018) the petitioners approached the Supreme Court alleging the action as an unconstitutional attack on Parliament which is ultra vires the powers of the President and an assault on the legislative power of the People and on the sovereignty of the People.
Articles 33 (2), 62(1) and 70(1) of the Sri Lanka Constitution deal with the President’s power of dissolving Parliament. Article 33 (2)(c) which appears under Chapter titled “The Executive – The President of the Republic” state that ‘In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power to summon, prorogue and dissolve Parliament’.
Article 62(1) which appear under Chapter titled “The Legislature – Parliament” declares that ‘unless Parliament is sooner dissolved, every Parliament shall continue for five years from the date appointed for its first meeting and no longer, and the expiry of the said period of five years shall operate as a dissolution of Parliament’. Article 70 (1) states that the President may by Proclamation, summon, prorogue and dissolve Parliament: Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than twothirds of the whole number of Members (including those not present), voting in its favour.
Admittedly requirement of Article 70 was not satisfied. The President contended that Article 33 (2) (c) was intentionally inserted by the 19th Amendment as a new provision to preserve with the President a power to dissolve Parliament at any time and at his sole discretion irrespective of the confines of Article 70 (1). It was further contended that Article 33 (2) (c) conferred sui generis, independent, overarching and unfettered power upon the President to dissolve Parliament at his sole discretion and without reference to Article 70.
The Supreme Court observed that the law does not permit vesting unfettered discretion upon any public authority whether it be the President or any officer of the State. The President is also subject to the Constitution and the law and must act within their terms. The Supreme Court observed that Article 33 (2) is by way of a general provision in which the President’s power of summoning, proroguing and dissolving Parliament is enumerated along with certain other powers vested in the President; the specific and detailed provisions of Article 70 comprehensively specify the manner and method by which the President may lawfully exercise his power of summoning, proroguing and dissolving Parliament.
Thus, the detailed provisions set out in Article 70 with regard to the manner and method of the exercise of the President’s power of summoning, proroguing and dissolving Parliament and the restrictions and limits placed on that power must be read together with and are inextricably linked to the power referred to in Article 33 (2) (c).
The Supreme Court thus concluded that any dissolution of Parliament by the President can only be effected by way of a Proclamation issued under and in terms of Article 70. The Proclamation was thus declared to be null, void ab initio and without force or effect in law.
The constitutional crisis in the Sri Lanka finally ended with the resignation of Rajapaksa and reinstatement of Wickremesinghe as the Prime Minister. But the crisis in Venezuela is deepening resulting in more hardships for the Venezuelan people leading to a humanitarian catastrophe.
(The writers are Mumbai-based advocates and legal consultants)