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.

Monday, August 31, 2009

Elections, Constitutions, and Laws: how "obligatory" is voting?

As the resistance calls for non-participation in the November elections, signs accumulate that this tactic is of concern to the regime, no matter how much they say otherwise. There are intimations that of intentions to prosecute people for not participating in the election or for encouraging others not to do so.

The rhetoric on this topic echoes an overall tactic of the coup regime that is worth exploring both in relation to the specific pressure on the population to vote, and in order to reflect on the use by the de facto regime of claims of constitutionality as their first resort, instead of, as constitutional authorities would expect, a last resort.

The specific case first: the vote, we are told, is obligatory. Constitution Article 40, which defines the duties of citizens, lists as point number 3 "ejercer el sufragio", "exercise suffrage". More common cited is Article 44, which says in full

El sufragio es un derecho y una función pública. El voto es universal, obligatorio, igualitario, directo libre y secreto.

Suffrage is a right and a public function. The vote is universal, obligatory, egalitarian, direct, free, and secret.

Now, I have noted before that the obligatory nature of the vote has obviously not been enforced, given that participation rates in national elections have plummeted, to 46% of eligible voters registering a vote for congress, and 55% for president, in 2005. This is a drop from 81.4% in 1980, the first year when elections were rated as "partly free" during the development of the constitutional system of government that was uninterrupted until June 28 of this year, according to international sources.

A study by the International Institute for Democracy and Electoral Assistance, found voter turnout world-wide from 1945-1999 was lowest and tended to drop over time "partly free" countries, including Honduras, where basic civil liberties may not actually be protected. Both "free" and "not free" countries had higher turnout, presumably for different reasons.

Compulsory voting, the authors of this study note, has been debated as anti-democratic. Even when enforced, citizens have found creative ways to express their actual opinions when no choice they are presented is acceptable:

The leading argument against compulsory voting is that it is not consistent with the freedom associated with democracy. Voting is not an intrinsic obligation and the enforcement of the law would be an infringement of the citizens' freedom associated with democratic elections. It may discourage the political education of the electorate because people forced to participate will react against the perceived source of oppression. Is a government really more legitimate if the high voter turnout is against the will of the voters? Many countries with limited financial capacity may not be able to justify the expenditures of maintaining and enforcing compulsory voting laws. It has been proved that forcing the population to vote results in an increased number of invalid and blank votes compared to countries that have no compulsory voting laws.

Looking at countries where voting is obligatory, the study (after noting that enforcement varied widely) says that

A somewhat surprising result of this study is that the 24 nations which have some element of compulsion associated with voting have only a small lead in turnout over the 147 nations without any compulsory voting laws.

But most important for our purposes here, this study points out that simply having a constitutional claim that the vote is obligatory is symbolic, and that countries with such claims vary in whether they enforce them:

The simple presence or absence of mandatory voting laws in a constitution is far too simplistic. It is more constructive to analyze compulsory voting as a spectrum ranging from a symbolic, but basically impotent, law to a government which systematic follow-up of each non-voting citizen and implement sanctions against them… Not all laws are created to be enforced. Some laws are created to merely state the government's position regarding what the citizen's responsibility should be. Mandatory voting laws that do not include sanctions may fall into this category.

And this is the general point of this post: the coup government consistently cites the Constitution as the basis of its actions: but a Constitution is interpreted through the development of specific legislation.

Social science research shows that globally, such laws do not increase participation; but what does Honduran electoral law implementing the constitutional mandate actually say about not voting?

Simple answer: nothing. Honduras never has had sanctions for not exercising the "obligatory" right to vote.

(The IDEA study confirms this, but if you don't believe them or me, look it up yourself: read the Ley Electoral of 2004, Decreto 44-2004. Lots of sanctions for lots of things, but not one for not voting.)

So, what is a significant cause of higher voter turnout?

The only socio-economic factor which does seem to correlate with turnout rates is the United Nation's somewhat more sophisticated "Human Development Index" (HDI). Turnout tracks closely a nation's level of Human Development. If we split the HDI league table into five equal sections we find that the top fifth of countries have an average voter turnout of 72%, the next 69%, the third 66%, the fourth 60%, and the bottom fifth an average of 56%.

No mystery where Honduras falls in the HDI.

Now, here's the general point: the coup regime has a bad habit of wrapping itself in the raw words of the Constitution, neglecting the actual way the intentions embodied in that document are implemented in legislation, and undermining due process as established in law.

This is most egregious in the way that the coup and its supporting media have promoted the false claim that President Zelaya is guilty of treason, because a legal charge (which many believe was fabricated post-facto) was lodged with the Supreme Court. This claim violates the presumption of innocence implemented in legal revisions of the last decade. It ignores the fact that no hearing had even been held on the "evidence" cited in the legal filing.

arguments like this return Honduras to a state of legal indeterminacy, by encouraging the direct interpretation of constitutional provisions rather than the adherence to well defined legal codes. Thus the coup regime grasps at Article 239 and presents it as a post-facto basis to legalize its actions, when as an unending stream of legal scholars have noted, that Article does not mean what these politicians want it to mean. The Constitution becomes a weapon used against the rule of law. That erodes the legitimacy of what should be the nation's highest charter.

Just as the coup regime has eroded the legitimacy of congress, the supreme court, and the election tribunal.

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