What the Honduran Supreme Court Authorized...

One of the arguments repeated by supporters of the de facto government in Honduras has been that the Supreme Court of Honduras has the final word and that court approved the coup d'etat.

Leaving aside the profound over-simplification here (again, the analogy would be if our Supreme Court ordered the Joint Chiefs of Staff to kidnap and deport our President... which would not be a legal action even if there were an indictment against him for crimes against the state, no matter what the Chief Justice might say), there is some interesting material in the 86 pages of documents the Honduran Supreme Court has posted in order to defend its actions.

What these documents show is that on Friday, June 26, the Supreme Court had secretly authorized the army to raid President Zelaya's house, supposedly because he represented a risk of flight.

Nowhere do the various repeated orders authorize his removal from the country. Instead, the first order given says:

Finding sufficient merit concerning the commission of the actions, an order of capture is delivered...so that [the military] will place under judicial authority [President Zelaya], and once having done so take the statement of the accused.

It goes on to authorize a raid on President Zelaya's residence, giving the precise address, and stating that the raid

should be carried out between six in the morning and six in the evening of the day that is deemed pertinent

Finally, the legal order puts in place a requirement of secrecy.

Clearly, as the military has admitted, sending Zelaya out of the country was a mistake. But it is also interesting to note that this order was passed two days before it was executed, and that it incorporates a clause that instructs the officer to carry it out when it seems convenient to do so.

The second thing that is interesting about the documentation provided is the account of the way that the dispute escalated. Without outside information about the legal struggle over whether opinion polls were allowed by the law that established a right for government officers to consult public opinion (and thus allowed) or should be defined as equivalent to binding votes (and thus uniquely the domain of the Election Tribunal) or would be allowed but not within 180 days of an election (which was the final congressional move), it would be difficult to actually understand what was going on. As President Zelaya attempted to establish a non-binding poll, and the other branches of government kept re-defining the meaning of existing laws to create conditions under which an opinion poll would be illegal. This finally reached a peak of apparent absurdity with the pre-emptive outlawing of any strategy President Zelaya might attempt, whether open or not, whether actually carried out or merely considered (as the language in the actual legal documents states).

This is referenced in the summary of actions the Supreme Court provides (which are then outlined in excruciating detail in the appended documents) as item number 5:

With the date of the 18th of June, 2009, the Court of Administrative Disputes delivered its second judicial communication to the President of the Republic, by means of the General Secretary of the Office of the President, so that he would abstain from carrying out any actions of a particular or general character that would tend towards the elaboration of a proceeding of consultation or questioning that would imply evading compliance with the interlocutory ruling and its respective clarification of the 29th of May of 2009.

The breadth of the orders of the court are even more impressive if you read the specific documents: they were designed to prevent any reaction to legal decrees that might have allowed the Zelaya government to gather information about public opinion on the question of public interest in constitutional reform, even if the exact form such attempts might take was not yet specifically known to the court. It was an attempted pre-emption of grand scope.

Finally, the court in its summary point 11 provides a very oblique commentary on what actually happened as a result of its orders, when on Sunday June 28-- presumably the date the military found it "pertinent" to act, although no one has clarified who gave the order to act then-- the troops raided President Zelaya's house but did not actually detain him to have a statement taken, as the order of Friday June 26 authorized. This is the piece of the Supreme Court's abundant legal documentation that is most often referenced in an indirect way by apologists for the coup, who claim it was legal because the Supreme Court authorized it. Point 11 in the list, it reads

With the date of 28 of June of 2009, the Judicial Power issued a Communique to the Honduran public and to the international community recording that if the origin of the actions of that day was based on a judicial order issued by a competent Judge, their execution was framed within legal precepts and had to proceed against all that was going ahead illegally in order to return the State of Honduras to the Rule of Law.

The statement issued on June 28 is thus not, as some have stated, authorization for the coup; it was a post-facto rationalization of it. It was not a legal order; it was a communique from the Court, saying if there were a legal order from a competent judge, then what happened was OK.

If the Supreme Court's own documents are to be believed, there had been a legally authorized order from a competent judge issued on June 26: but it was not for what happened.

And that, to me at least, seems to be something the Supreme Court itself realizes and is trying to wiggle around, in a "legal" document worthy of a Marx Brothers movie parody of the law.