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 presidentsubstitutes 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.