The Honduran Supreme Court: In its own words

As word comes today that among those whose US visas have been cancelled is the Supreme Court Justice responsible for ordering the military raid on President Zelaya's house, Jose Tomas Arita Valle, it seems an opportune time to review what actually was, and was not, ruled on by that body.

If we look in the 86 pages of the Supreme Court's own posted PDF for actual rulings where a final decision was reached, we find very, very little said by the Supreme Court itself. Despite the claim that the Supreme Court had made final rulings, only eight statements by the Supreme Court itself are included. And of those, only one is a final ruling, and it does not cover the misdeeds for which President Zelaya was purportedly removed.

The first Supreme Court filing, and the only final ruling, is documented on page 29. Titled "Certification of the Act dated June 25, 2009", it is the finding that General Romeo Vasquez Velasquez was improperly dismissed, and should be reinstated. It first cites constitutional article 280, reformed September 19, 1998, by Decree 245-98, which says

The Secretary of National Defense will be named or removed freely by the President of the Republic; in equal form will be the Head of the Joint Chiefs of Staff of the Armed Forces, who will be selected by the President of the Republic from among the members that make up the Joint Chiefs, in conformity with that which is established by promotion list of officers, prescribed in the Constitutive Law of the Armed Forces.

Seems pretty clear that constitutionally, Zelaya could dismiss the Head of the Joint Chiefs. But wait, there's more: "Not withstanding the preceding, article 40 of the Constitutive Law of the Armed Forces, contained in Decree 39-2001, dated April 30, 2001, that is the Specialized Law and applicable in this case…" as are, the court says, everything from other parts of the Constitution to the Universal Declaration on Human Rights. Zelaya apparently could fire the general, but he did it the wrong way.

The second document issued by the Supreme Court starts on page 48. Dated June 25, 2009, it reads in full:

Having received the prosecutorial request that precedes this with the accompanying documents, entered by the Public Prosecutor for the Attorney General of the Republic, Attorney Luis Alberto Rubi, against the citizen Jose Manuel Zelaya Rosales, supposing him to be responsible in the style of author of offenses against the form of government, treason against the homeland, abuse of authority and usurpation of functions, in prejudice of public administration and the State of Honduras. In order to transact the present case in the preparatory and intermediate steps, Magistrate Jose Tomas Arita Valle is designated as Judge, in fulfillment of that ordered in Articles 313 number 2 reforming the Constitution of the Republic; articles 414 and 416 reformed of the Code of Penal Processes and the resolution by this Tribunal in Point No. 2 of Act No. 34 of the session celebrated on 25 June 2009.

Immediately following is a document, unlike the others not on letterhead, dated Friday June 26. It records the acceptance of a prosecutorial complaint and supporting documents, repeats the crimes of which President Zelaya is accused, then notes

Finding sufficient merits according to the commission of deeds, issue and order of capture for the Joint Chiefs of the Armed Forces of Honduras so that the will please place under the order of Judicial Authority Mr. Jose Manuel Zelaya Rosales, and once having done so, take the statement of the accused. In view of the fact that the crimes that are claimed are sanctioned with very high punishment and existing a danger of flight, a raid on the house of the citizen before mentioned in the Colonia Tres caminos, fourth avenue, second house, left side, without number, is decreed, which can be carried out between six in the morning and six in the afternoon of the day that is deemed relevant and for that effect is named as Judge Executor: the citizen, Rene Antonio Hepburn Bueso…

The signature is illegible, and no typed name appears, but it presumably is Jose Tomas Arita Valle.

The next Supreme Court document starts on page 51, is dated the same day, and signed by the same Judge. Addressed to the Head of the Joint Chiefs of the Armed Forces, Romeo Vasquez Velasquez, it is the order to raid President Zelaya's house, the closest thing there is to an arrest warrant. What it literally says is

By order of this Tribunal of Justice of the Republic of Honduras, for conduct of the undersigned unanimously named Judge by the full Court, avail yourself through the authority delegated to you to capture the citizen President of the Republic of Honduras: Jose Manuel Zelaya Rosales, who is supposed responsible for the crimes of: Against the form of government, treason against the homeland, abuse of authority and usurpation of functions in prejudice of Public Administration and the State of Honduras, the preceding based on a prosecutorial request presented to this Court on the part of the Public Prosecutor.

The authorization is repeated and expanded on the next page, now addressed to Lieutenant Colonel Rene Antonio Hepburn Bueso, another member of the Joint Chiefs. It reads

By order of this Supreme Court of Justice of the Republic of Honduras, for conduct of the undersigned unanimously named Judge by the full Court, please proceed at the relevant moment to raid the residence of the citizen President of the Republic of Honduras: Jose Manuel Zelaya Rosales, located in the colonia Tres caminos, fourth Avenue, second house on the left, with number of this city, between six in the morning and six in the afternoon, and place him under the command of the corresponding authority for supposedly being responsible for the commission of the criminal deeds: against the form of government, treason against the homeland, abuse of authority and usurpation of functions in prejudice to the Public Administration and the State of Honduras, the preceding on the basis of a prosecutorial request presented to this Court by the Public Prosecutor.

Why the two different orders to two different military officers, only one of whom was named in the apparent original Supreme Court ruling? What does the change from "capture" to "place him under the command of the corresponding authority" actually mean? Is either accurately characterized as an arrest warrant? What happened to the original request that he be informed of the charges against him and his statement taken? Can an order issued by one member of the Supreme Court be treated as a final sentence, or does there need to be a final ruling by the entire court? Remember that Arita Valle was designated to undertake "preparatory and intermediate steps"; not to make a final ruling.

On page 58 the court reproduces a letter it sent, also dated Friday, June 26, to the heads of the Supreme Courts of other nations in the region. This letter they characterize as intended to inform these peers of the actions they are undertaking, due to President Zelaya not accepting earlier rulings about the legality of his proposed poll.

The specific offense they cite is his attempted firing of General Vasquez Velasquez, saying his action violated constitutional rights and failed to follow the procedures required by the Law of the Armed Forces. Based on these actions, the judges say, they have accepted claims of assistance, and they were sending along a certification of a resolution issued by the court "as the final and definitive interpreter of the Constitution of the Republic".

What is this resolution? Presumably, not one of the orders for the capture or raid of the President's house. The one thing labeled a "Certification" is the document starting on page 29, dated June 25, concerning the dismissal of General Vasquez Velasquez.

On page 79, the Supreme Court includes its own receipt, dated June 26, for documents submitted concerning the rulings of a lower court of administrative disputes.

Finally, on page 80, we get something that seems like a ruling by the full Supreme Court. But it is dated June 29-- after the coup d'etat. Its purpose is in fact to refer the legal case against Zelaya, now by their opinion a private citizen, back down to a lower court, since the Supreme Court is no longer the appropriate venue for action for someone who is not a high government official.

What is clear, then, is that the Supreme Court never issued a ruling about the crimes imputed to Zelaya. It issued the orders requested by the Public Prosecutor, who in the summation of his filing starting on page 47, specifically requested

that an order of capture be issued and migration alerts against the accused Jose Manuel Zelaya Rosales, that a raid on the residence of the now accused be ordered, that he be given to understand the deeds of which he is accused, that his declaration as accused be received and consequently, judicial detention be decreed in virtue of the gravity of the penalty to be imposed; that the secrecy of the transcript be decreed.

But none of the three different versions of orders for June 28 actually called for "judicial detention", a euphemism for arrest.

And of course, no arrest was carried out-- instead, the Armed Forces solved the problem, as they saw it, by sending Zelaya out of the country.

What these documents suggest is that one reason the military took that action might have been some degree of unease about the actual legality of the entire proceeding. And of course, left unaddressed in any of the Supreme Court rulings is the reason for the Armed Forces being given a task constitutionally that of the National Police, because as the Public Prosecutor wrote

since, in conformity with Article 33 of the Law of Public Administration the Cabinet Ministers are collaborators of the President of the Republic, in consequence and given that the Secretary of State for Security has, by means of the National Police, the legal capacity to carry out orders of capture issued by competent authority, but owing to the conflict of interests and the well-founded fear that the Public Prosecutor has that the will not fulfill the Judicial order, for this reason asks that once the corresponding orders of capture are issued the Armed Forces of Honduras will be instructed, through their Head of the Joint Chiefs, who have the capacity to make him comply with the mandates of the Constitution, the laws, that impose on the Armed Forces, they shall proceed to carry out the order for the capture of the now-accused.