Responses to the Coup d'etat in Honduras on Sunday June 28, with special emphasis on producing English-language versions of commentaries by Honduran scholars and editorial writers and addressing the confusion encouraged by lack of basic knowledge about Honduras.

Tuesday, July 14, 2009

Revisiting the constitutionality... a response to some comments

Two comments on my original post of July 10 ask for some further constitutional clarification, which I am glad to try to provide.

So far as I know, there was no supreme court ruling on the change of terminology from "consulta" to "encuesta de opinión pública" and whether it successfully avoided the attempt to restrain non-binding polls.

In fact, in the Supreme Court documentation, there is a section that is worded as a pre-emptive attempt to say that any action President Zelaya took or even contemplated to pursue similar ends was constrained. Here's a translation from page 66 of the PDF of the Supreme Court communique:
the suspension ordered of the tacit act of a general character that is contained in Executive Decree No. PCM-05-2009, of March 23, 2009, includes whatever other administrative act of a general or particular character that had been issued or would be issued, whether it were voiced or tacit, by publication in the Official Gazette or lacking publication, which entails the same goal as the tacit administrative act of general character that had been suspended, as well as whatever change of designation in the proceeding of a poll or questionnaire that would imply evading compliance with the interlocutory sentence.
Any action intended to gather information about public opinion was outlawed into the future.

This leads neatly to Miguel Estrada's LA Times article which also confuses intentions with actions. The key arguments that should be rejected are the following:

(1) Article 239 calls for any president proposing to change presidential term limits to immediately cease to be recognized as president. Since President Zelaya never called for change to presidential term limits, he did not actually violate this Article. To claim blandly
Article 239 states clearly that one who behaves as Zelaya did in attempting to change presidential succession ceases immediately to be president
substitutes general "behavior" (with the author assuming intentions) for a specific kind of behavior that needs to be exhibited by the President, and was not.

Other people jumped to the conclusion that changing presidential term limits could be the only point of revisiting the Constitution-- as my blog post tonight will suggest, possibly because Micheletti himself has a history of actually proposing this very impermissable change in utterly unambiguous form-- but Honduran law protects people from being judged on assumptions about possible intentions. Constitutional Article 89 reads in its entirety
Every person is innocent as long as a competent authority has not declared his or her liability.
An actual legal case would have faced considerable difficulties proving the claim of violation of Article 239 based on Zelaya's statements and behavior.

(2) The basic argument made against Zelaya is, since the Constitution can be amended by Congress there is no need for a popular assembly unless you want to change the unchangeable articles. There are many other possible reasons to consider convening a Constitutional assembly.

One such proposal was so that the people of Honduras, not just Congress, could express their opinions on their own constitution. The July 9 post here from the indigenous peoples of Honduras represents one such group of people seeking a voice they do not have in Congress (see Rodolfo Pastor Fasquelle's editorial posted here July 1) .

(3) the fact that no referendum can be on a ballot without 2/3 support from Congress actually undermines his argument against Zelaya. Since the poll on June 28 was not binding, it simply would have produced a public record of how many people wanted such a referendum question on the November ballot. Congress would have had to approve any November ballot question being posed at all.

(4) Estrada writes
the court ordered Zelaya's arrest by the country's army, which under Article 272 must enforce compliance with the Constitution, particularly with respect to presidential succession.
Article 272 does not actually authorize the army to conduct arrests. Here is a translation of the entire article:
The Armed Forces of Honduras is a National Institution of permanent character, essentially professional, apolitical, obedient and non deliberative. It is constituted to defend the territorial integrity and the sovereignty of the Republic, to maintain the peace, the public order, and the dominion of the Constitution, the principles of free suffrage and the alternation in the exercise of the Presidency of the Republic.
I continue to think there is a constitutional issue in the Supreme Court resorting to the military when they might have issued a police arrest warrant. Article 272 authorizes the army, fundamentally, not to obey a president who does try to stay on in office. Had that actually occurred, the army would have had legal authority to detain the President, and to insure the installation of the legally elected President. But that was not what happened here.

(5) Estrada claims Congress convened
immediately after Zelaya's arrest, condemning his illegal conduct and overwhelmingly voting (122 to 6) to remove him from office.
Zelaya was not arrested. He was illegally expatriated (violating Constitutional Article 102). What Congress did on Sunday was listen to someone read a forged letter of resignation on the basis of which, the Congress was asked to ratify Micheletti's succession.

Oh, and by the way: the claim that the vote was 122-6 is a lie, not just a talking point. First: the "vote" was a show of hands, not a roll call. Second, the entire UD party delegation didn't even attend the session-- that is 9 votes out of a possible 128 that were not lodged in favor of the installation of Micheletti. Finally, since then, 13 Liberal Party congress members have signed a statement saying they did not vote in favor. That makes a total of at least 22 dissenting votes-- and Honduran sources say others are too intimidated to speak out and clarify that they did not assent.

These are incoherent legal arguments. The Supreme Court obviously could issue an arrest warrant. But Zelaya had the right to be properly arrested, given a trial, and defend himself.

The original claim was that he signed a resignation letter, so Micheletti ascended automatically. When the letter fell apart, they stopped mentioning it, and referenced the interpretation that he ceased to be President when he formed an intention to carry out the poll.

To end, as Estrada does, with the admission that the expatriation was illegal, but claim that there was no military coup because there are still three branches of government, is absolutely without merit and the international community rightly has refused to recognized the regime installed, which is illegitimate.

6 comments:

Doug said...

Raj -

Page 66 would seem to preclude practically ANY activity. You could go as far as to say that Zelaya even asking a couple of people on the street their opinions would technically be precluded. That is, as Palacios Ramos says in the piece you referred to, obviously antithetical to a "Constitutional Democracy which depends on the sovereign will of the people."

Doug said...

Re the Estrada; that so many on the right are willing to overlook blatant criminality as 'unfortunate' or 'regrettable' because it is politically convenient shouldn't surprise me, but it still does.

Re the point about the military's action itself, Adrienne Pine's comments from last Friday's hearings were priceless:

"..my translation: "What is to be done? [Throw hands up in air] The military, we try to civilize them, but they have a mind of their own. Who knows what goes on in their heads really? In any case, how Zelaya was removed was just a minor detail. Did I mention how he led the angry mobs?""

RAJ said...

The emerging image of "angry mobs" is telling, actually, because it goes to what must in one sense be the real thing at stake here. The people = "angry mobs".

This, of course, was brought to life vividly when President Zelaya called for the people to join him at the Presidential Palace on Wednesday night, when it seemed there was a technical coup (legislative removal) in the making. He went on the air surrounded by a crowd of people who came there to provide a barrier to any military action. These were the people who he led in a taxi and bus caravan to the air force base to seize the polling materials.

What was extraordinary about that crowd of people for me, watching it on Honduran television, was that many of them were wearing the colors of a variety of political parties-- Liberal, National, UD, and others. It was the first time I could literally see that support for Zelaya's poll crossed party lines.

I have been interested to see, in the more recent, more reflective print reports, acknowledgment that Zelaya has strong support among the people. But at the same time, I am disturbed that this is now settling into the mode of "his supporters are the poor and dispossessed and uneducated".

President Zelaya's government also had the support of many people who were highly educated, as I think this blog is demonstrating.

Not that those observers were ignoring problems of administrative efficiency. But when I look back at historical commentary on other Honduran presidencies since the constitution was passed, many of the same faults are cited. This to me suggests that under the Honduran constitution, the office of President is structured in deeply problematic ways.

Doug said...

Today's WP Article by Juan Forero does seem to be more reflective, and go beyond the screaming about second-terms. I like the statement by Eduado Maldonado:
"The coffee exporters have congressmen, the bankers have congressmen, the fast-food interests have congressmen," Maldonado said. "That's why the country has been in these difficult conditions . . . because there is not a congress that permits people to participate."

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071403320_2.html?sid=ST2009071403735

DHOFF said...

I appreciate you translating the relevant portion of the constitution. My understanding is based on the US Constitution, and that understanding is that the USSC is the supreme and prescriptive authority on interpreting the constitution and I similarly assume the same for the highest court in Honduras.

What we think a word means, regardless of how ordinary or supported that meaning is, is irrelevant if the body responsible with interpretation has issued a ruling or other judicial act regarding the interpretation. To make this short, the ruling of the SC of Honduras means whatever the SC says it means. That isn't an opinion, it is a fact (based on the assumption of the SC's role).

What I don't understand is why they didn't bother to impeach the president, or in the alternative let him serve out his remaining 6-7 months in office (he can't be re-elected so he is gone when his time is up). During that time they could simply enjoin the president from mentioning, or even secretly dreaming, the any new constitution or any part of the existing constitution that relates to the term limits and the executive office. He makes a single reference to a new constitution, a poll of any sort, or etc. and have the Congress impeach him for violating a judicial injunction. It seems the same result could have been obtained as the abrupt flight to Costa Rica, but the wrong method was used to accomplish this. The military seems to be following judicial decrees, so this is really a judicial/congressional coup, not a military coup. If anything the military is dogmatically following directions.

RAJ said...

I will take DHOFF's comments as an opportunity to interject more of the commentary I am developing on the actual Supreme Court actions, which keeps being overtaken by events, while noting this blog post is about distortions by editorialists and others who have yet to read either the Honduran Constitution or the actual rulings of the Supreme Court of Honduras. I object here to Estrada's misrepresentation of the Constitution.

First point: the Honduran Supreme Court's rulings are the final rulings in Honduran judicial affairs. But they in fact had not found President Zelaya guilty. They issued an arrest warrant for him-- and we should note that, as with the clearly forged "resignation letter", many Hondurans are dubious about the timing of that warrant, believing it was produced after the coup. But even if it were legitimately dated before the coup, it was an arrest warrant. There could be no ruling yet on the charges because there had been no trial and thus no presentation of evidence for and against the accused. Many commentators crying "the Supreme Court has the last word" conflate what the Court did rule on-- the order to arrest Zelaya--with rulings of other courts about the proposed poll or referendum (and legally, precise terms do matter). As I think will become obvious if I ever finish the arduous process of translating the judicial documents, most of the legal decisions still needed to be made, and what should have happened even if we accept the rulings of lower courts as likely to have been upheld were further motions, appeals, and perhaps trials.

Second point: The Honduran Supreme Court has similar legal authority to the US Supreme Court. But here is the glaring difference that makes equating the two facile. The Honduran Supreme Court is appointed for seven-year terms, in a process controlled by the Honduran Congress. As Honduran historian Rodolfo Pastor Fasquelle, Minister of Culture in exile, notes in an editorial translated at http://quotha.net/node/131, the politicization of the court is one of the facts of the conflict that reflect the unbalanced nature of Honduran constitutional government. So we should not pretend that the Honduran Supreme Court's judgments are apolitical (any more than the US Supreme Court is-- although there, once in a lifetime post, Justices can surprise us all).

Third point: the claim that this is a judicial/constitutional coup-- in Spanish, a "golpe tecnico"-- is to some extent valid. But the Armed Forces could have refused to carry out the order they received, which as noted in other commentaries reproduced here, usurps the constitutional role of the National Police. Thus, this is both a golpe tecnico-- especially once Congress accepted a forged resignation letter and then proceeded to base the elevation of Micheletti on a completely different Article of the Constitution about presidential incapacitation-- and a military coup.