Efrain Moncada Silva has an editorial in today's La Tribuna talking about article 239 of the Honduran Constitution. There's still too much misinformation out there about this clause, and what it means, and whether Zelaya was ever accused, formally, of violating it.
To refresh your memory, article 239 reads, as written in 1982:
Article 239: No citizen who has already served as head of the Executive Branch can be President or a designated person. Whoever violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.
Articulo 239: El ciudadano que haya desempeñado la titularidad del Poder Ejecutivo no podrá ser Presidente o Designado. El que quebrante esta disposición o proponga su reforma, así como aquellos que lo apoyen directa o indirectamente, cesarán de inmediato en el desempeño de sus respectivos cargos, y quedarán inhabilitados por diez años para el ejercicio de toda función pública."
(As you will recall from my previous posting on article 239, I understand the Supreme Court decision of November 12, 2008 to have reverted the clause to this language, while Moncada Silva cites the amended version in his editorial. The difference, however, is minor. The amended version substitutes the Vice President for the designated person.)
As you can see, the article is fairly simple, only 2 sentences long. The first has to do with a prohibiition against being elected president twice in a row, in harmony with article 4, paragraph 2 of the Constitution. It also relates to the text of article 374, which says that anyone who has ever exercised executive power, whatever their title, cannot ever again be elected president.
Moncada Silva spends most of his space discussing the second sentence. He notes that it should not be interpreted superficially nor twisted for political ends. It should not be interpreted simply, or in isolation. Moncada Silva asks two questions whose answers illustrate how it works.
How can a President of the republic break the prohibition to be elected again as Vice President, or Designated person?
Moncada answers that they couldn't, because the Supreme Election Tribunal would prohibit it, and it would nullify the election if it had taken place, alocating fines to the person who broke it.
How can one propose a reform of the first sentence of article 239?
The only way is if the President of the Republic, via his Secretary of State, proposed a law following the procedures in articles 213, 245, and 9 of the Constitution.
No representative or employee of the government of Zelaya supported, either directly or indirectly any re-election of Zelaya, nor even postulated it. As Zelaya said during the OAS reunion in San Pedro Sula in June, he won't be in the government one day past January 27, 2010.
Can there really be a penalty of immediate removal from the office of the President of the Repubic, or any other such office?
No, the second sentence of article 239 needs to be interpreted in the context of the rights and guaranties that the Constitution establishes, among which are the right of liberty (articles 61 and 69), the right to defend oneself (article 82), the presumption of innocence (article 89) and due process (articles 92 and 94).
So who determines and declares the removal from office?
The Constitution doesn't answer this, nor does the penal code. In any case, it would be the final result of a determination in front of independent and impartial judges.
Moncada Silva concludes, "in summary, there was no immediate removal from the office of President of the Republic deposed in the coup and thrown out of the country. The so called "constitutional presidential succession" does not have any legal validity because it was done against the constitutional procedures. I will explain this shortly".
So why this focus on article 239? The Supreme Court didn't cite it in its case against Zelaya. Congress didn't cite it in its June 28th resolution removing Zelaya from office and appointing Micheletti president. So where did it enter the conversation?
The trail leads back to a July 1 motion (published July 5) offered by Orlando Romero Pineda and approved by "all members of the four Political Parties, except those of the Democratic Unification Party". It literally says as part of point 4 that "As a result, as is expressed in the report and Legislative Decreee of the 28th of June, the Honorable National Congress agreed to censure the conduct of the citizen José Manuel Zelaya Rosales and remove him from office by virtue of Constitutional Article 239....". However, any examination of the June 28th document will fail to show a single mention of article 239 anywhere on its pages.
From the original publication of Romero Pineda's resolution on July 5, article 239 went on to become the dominant argument presented by the Micheletti government for Zelaya's removal.
It is clear the constitutional article, and the way the golpistas could use it, was discovered long after they had spirited Zelaya from the country. It is only on July 5 and later that it appears in the pro-coup paper, La Prensa, as a justification for the removal of Zelaya.
Update: Since writing this I've been able to review more newspaper archives, and find article 239 being cited in quotations as early as July 1 in La Tribuna. That article describes a different motion, also presented on the same day as Romero Pinedas, July 1, submitted by National Party member Rodolfo Irias Navas. That motion established a "commission of foreign relations" whose purpose was to talk to the representatives of foreign governments and explain why Zelaya was thrown out. In an interview in the article, Irias Navas postulates that Zelaya violated article 239 simply by proposing to assemble a National Constituyent Assembly to write a new constitution. As we've seen above, its not that simple.
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