Recurrent themes of discussions of the illegal removal of President Zelaya from Honduras on June 28 have been assertions that (1) the Supreme Court had ordered his removal from office, or had ruled against him in some way that justified his removal; and (2) that the military had to take him out of the country because there was no mechanism in the Honduran Constitution to impeach him.
In this and other upcoming blog posts, I will take apart these linked claims. Neither is true.
To a certain extent, statements by Honduran institutions after June 28 have tended to encourage one or both of these claims.
Constitutional law professors and constitutional theorists who have commented on the issues have tended to do so in such indirect statements that it has been difficult for most readers to actually understand what these individuals are saying.
Meanwhile, former justices, lawyers, and others who appear to be equally authoritative have contradicted the constitutional law professors, reiterating that President Zelaya was disqualified from office by his assumed intentions, while remaining silent on the actual facts of the legal procedures invoked prior to June 28. So, what we will do here is try to explain the facts of the law.
In the hours after the coup, the theme that there was "no way under the Honduran Constitution" or "no mechanism in the Honduran Constitution" to impeach a president emerged. I initially ignored these claims, because the last time I had perused the 1982 constitution there most certainly was.
As passed in 1982, the relevant passages were:
Articulo 205: Corresponden al Congreso Nacional las atribuciones siguientes:These three sections of the 1982 Constitution established that Congress was responsible for deciding if there were grounds for impeachment; the Supreme Court was charged with trying cases conveyed from the Congress; and the President could not veto the decisions of the Congress.
15. Declarar si ha lugar o no a formación de causa contra el Presidente, Designados a la Presidencia, Diputados al Congreso Nacional...[etc.]
(Article 205: The following attributes are those of the National Congress:...15. To declare if there are or are not grounds for a case against the President, President-designate, Congress people...)
Articulo 218: No sera necesaria la sanción, ni el Poder Ejecutivo podrá poner el veto en los casos y resoluciones siguientes:
2. En las declaraciones de haber o no lugar a formación de causa;
(Article 218: The approval of the Executive Power is not needed, nor can the Executive veto the following resolutions and cases...2. Declarations of having or not having grounds for a case;)
Articulo 319: La Corte Suprema de Justicia, tendrá las atribuciones siguientes
2. Conocer de los delitos oficiales y comunes de los altos funcionarios de la República, cuando el Congreso Nacional los haya declarado con lugar a formación de causa;
5. Declara que ha o no lugar de formación de causa contra los funcionarios y empleados que la ley determine;
(Article 319: The Supreme Court of Justice, shall have the following attributes...2. To try official and common offenses of high government functionaries, when the National Congress has declared there to be grounds for a case;... 5. To declare that there is or is not basis for a case against the functionaries and employees that the law determines;)
But when I went to revisit sources for the 1982 Constitution, I found that indeed, specific amendments had removed these sections of the document.
What had happened? Were the people claiming there was no way to bring a truly out-of-control President (or other government functionary) to justice right? What would have possessed anyone to eliminate such important procedures?
Looking for Mr. Impeachment: The Penal Trial Code
The answer starts with reforms initiated in the late 1990s, implemented throughout the current decade, which I will return to in another post during Honduran Constitutional Law Month.
But I won't make you wade through the details I had to navigate to reach the pay-off. There is still a perfectly good mechanism to bring charges for high crimes against high government officials, and it was what was starting to be implemented by the Supreme Court.
Instead of being part of the Constitution itself, these procedures are now included in the revised Penal Trial Code (Nuevo Código Procesal Penal, Decreto 9-99-E) which was effective February 20, 2002. In 2004, the relevant section was amended and regulations finalized in Decreto 195-2004 published December 30, 2004.
Chapter III of the New Penal Trial Code replaces the definition of roles the branches of government have in pursuing high government officials that were previously in the Constitution, adding more rigorous definitions of procedures. I spare you from my temptation to translate Chapter III in its entirety (but do not promise I won't succumb later).
Here, instead, are the bullet points of Articles 414 to 417 which make up this Chapter, whose title can be translated as "Proceedings for hearing of proceedings initiated against the Most High Functionaries of State and Congress members".
Article 414: Establishes that the procedures to be defined are the only ones that can be followed to proceed against high government officials.
Article 415: The Supreme Court receives the request, accusation, or complaint from the competent authority or victim, along with the evidence or an indication of where the evidence can be obtained.
Article 416: The Supreme Court designates one justice to undertake the preliminary and intermediary phases of the case. Following that, three justices and one alternate are appointed to hear oral arguments in the case. A similar process is followed when an appeal follows. The same court hears accusations against both the high government official who has immunity from ordinary prosecution and any others accused in the same action who are not high government officials.
Article 417: Defines procedures for review of any decision by the three-person tribunal that is constituted in Article 416, by the remaining justices of the Supreme Court.
Implications, Part I
If we turn to the Supreme Court process that took place before the June 28 raid on President Zelaya's house, we can see that it was the first step in the process defined under Article 415 of the New Penal Trial Code that replaced the ill-defined sections on impeachment in the Constitution. One justice was appointed to do the primary and intermediary investigations of evidence.
What never happened was the appointment of, nor any actual hearing by, the required three judge Tribunal of Judgment, nor the reviews that Article 417 defined. As previously noted in my translation of the orders emitted by the Supreme Court justice for the military raid of June 28, what they were supposed to do was hold him so that his statement could be taken.
Far from there being no constitutional means to undertake impeachment, what the Supreme Court was doing was starting just such a process. Then the Armed Forces decided to short circuit it by illegally deporting President Zelaya.
Of course, we still need to consider whether the crime(s) of which President Zelaya was accused at the time really were sufficiently grave to trigger the proceedings that started. To answer that question we will need to consider the question of immunity for sitting officials, and consider in rather more depth what precisely President Zelaya was accused of in the complaint that started the Supreme Court process.
[A note: I deliberately posted this in the early morning hours of Pacific time zone, only to find it listed as posted as 15 minutes before midnight on the last night of July. Not sure what the etiquette is here, but this is the first post of August so I am revising it now simply to register that August is Honduran Constitutional Law Month.]