As we watch and wait, revisiting the constitutionality of the opinion poll

One of the most persistent claims made in support of the Honduran coup d'etat has been that the opinion poll scheduled for June 28 was inherently unconstitutional, and that President Zelaya, by refusing to follow a court order to suspend it, showed his lack of respect for law and the separation of powers and justified his removal. I have alluded several times to the fact that one would have to be deeply immersed in the specific back-and-forth of the development of the poll to understand how over-simplified these arguments are.

Francisco Palacios Romeo, Professor of Constitutional Law at the Universidad de Zaragoza, Spain, has offered one of the best analyses I have seen. First, in a document dated July 3, he makes six points about the legal issues involved:

(1) the poll "was a question about the possibility to ask another question. Therefore it was an absolutely innocuous question in the short and medium term. A question that would need to be validated by a second question."

(2) the legal findings about the poll were vague and lacked clear basis, with the Supreme Court ruling simply upholding a lower court ruling lacking any clear legal grounding:

The poll was prohibited by a simple Administrative Trial Court, which is a court of first appeal....its only argument was “the implementation [of the poll] would redound in damages of an economic, political, and social character that would be impossible to repair for the State of Honduras” ...The sentence of this Court was supported by a decision of the Supreme Electoral Tribunal which refused to collaborate in the organization [of the poll]. The Supreme Court, finally, issued a short communication full, as well, of generalities and falacious commonplaces. The Supreme Court says:

"...the confiscation [of polling materials] being the execution of a solid legal action ratified by the Administrative Trial Court where the survey sponsored by the Executive, who never paid attention to the orders emanating from the Constitution and the Law, was declared illegal, the Judicial Branch considers that such action is accomplished within a legal framework, based on a legal requirement issued by a competent judge... "

In other words, the Supreme Court upheld the ruling because another court had made the ruling, and hence it was considered legal; and the original Trial Court that made the ruling based its decision on unspecified damages that it predicted would come to pass. Neither of these are arguments rooted in the law or the constitution; Palacios calls them simple-minded and false.

(3) Palacios completely rejects the claim that the poll was unconstitutional. He notes there is no article in the Honduran Constitution prohibiting polls. No article of the Constitution reserves polling to the Supreme Electoral Tribunal (which was the main claim made before the coup). There is no Constitutional bar against either asking about, or even convening, a Constitutional Assembly.

(Indeed, news comes tonight that in 1985, Roberto Micheletti proposed to convene Congress as a Constitutional Assembly, reportedly to alter the articles about presidential term limits to allow then-President Suazo Cordova to remain in office, which would explain why he assumed that had to be President Zelaya's plan; it was what he wanted to do in convening a Constitutional Convention.)

Palacios characterizes President Zelaya as very careful to set up the maximum guarantee of clarity through a two step process of consultation about the opinion of the people on whether to convene a Constitutional Assembly. Palacios questions the very idea of the untouchability of articles of the Honduran Constitution, noting that except for those core articles required to guarantee basic rights, untouchable articles "convert a Constitution into a Bible" and "are an attack against the sacred principle of sovereign Constituent power". He finds that President Zelaya was actually opening a wide-ranging debate on constitutional reform and a wide means of popular participation.

(4) Palacios rejects the claim that the Supreme Electoral Tribunal legally had authority over all direct political participation by the people. While elections are indeed their purview, he notes it is important not to confuse "electoral" with direct popular participation by means of a poll or referendum. The law governing elections passed in 2004, he notes, speaks only of elections in which there is a competition for an elected position. Nowhere in the law does it mention polls or referenda.

Palacios notes that since there clearly is no legal impediment to the President conducting a poll, Congress

tried to create a law at full speed. With that motive, the National Congress tried to approve a new law of Referenda to legitimate their actions, trying to make to it be valid as in force. But the law approved against the clock (in three days) is not a valid law, since it lacked the entire later process of presidential approval or, in this case, a long process of possible presidential veto.

This law was passed by Congress on June 24-- the Wednesday before the scheduled vote. It defined polls as requiring 51% of registered voters to participate-- a level not achieved even in elections in Honduras-- and limited the practice of polls within six months of any election, thus making a previously scheduled poll suddenly illegal. It was this law that defined polls as a matter for the Supreme Electoral Tribunal. The new law also defined as not subject to polling not only the so-called stone articles of the Constitution, but also "social polls", themes having to do with taxation, public credit, or currency, and international treaties. The breadth of what was ruled as not open to public input is critical to note. Palacios notes that as long as polls do not distort established legal proceedings, they "should be legal by definition and by democratic principles, since the opinion/participation of the sovereign people should always be the first premise of every democracy".

(5) Palacios takes on the post-facto rationalization the Supreme Court offered for the raid and expatriation of President Zelaya as well. He notes that a disagreement between branches of government cannot legitimate removing the President from office. This he notes is a normal conflict in many democratic political conjunctures. There exist mechanisms and general Constitutional theory to resolve such conflicts. He notes that around the world, courts rule against executive branches of government constantly, without taking these extreme steps.

(6) Finally, Palacios takes on the claim that the Army was carrying out a constitutional role in its use of force. This assertion by the Supreme Court, that the "the Armed Forces acted in defense of the State of Law as defenders of the dominion of the Constitution", raises precisely the specter of militarization of government that Rodolfo Pastor Fasquelle has been pointing out is one of the legacies of the coup.

Instead, as Palacios demonstrates, the Honduran Constitution affirms the role of the President as Commander in Chief; the Armed Forces are thus not an independent branch of government; the constitution explicitly denies them a deliberative role.

Second text: Lessons of Participatory Democracy about Article 5

Responding to reactions to his original article, Palacios gave an interview to Telesur. In it, he considers the question of when the people can express their opinion about the possibility of a Constitutional Assembly, or when any such possibility is prohibited?

In this long article, this constitutional law scholar points out that the Honduran Constitution, which does make statements about "plebiscites" and referenda, does not make any statements about polls. He points out that Article 5 of the constitution defines very restricted means for constitutional reform, which if they are interpreted as making it impossible to reform the constitution would violate the presumption that the mandate of the constitution flows from the will of the people.

He then shows that Articles 5 and 45 of the Constitution actually call for unimpeded democratic participation. This is followed by a detailed discussion of the Law of Civic Participation of 2006, which he characterizes at length as filling in the omissions and silences in the Constitution concerning participatory democracy.

Article 2 of this law, he notes, defines core principles of "a very advanced and extensive model of participation and direct consultation of the people": Participatory Democracy; Stewardship; Solidarity; Legality; and Respect are each defined as fundamental to democratic participation.

Given the lack in the constitutional of a defined way to undertake reform; the "dogmaticism" of the claim that some parts of the constitution cannot be revised, which breaks "the sacred principle of Constituent Power"; the inviability of plebiscites and referenda for specific questions like that to be set June 28; the participatory call of Article 5, and the implications of Article 45 of the Constitution; and the content of the Law of Civic Participation, he finds the proposed poll entirely legitimate and in keeping with the Constitution and established law.