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 10, 2009

Immunity, Impunity, Impeachment: Some clarifications

To be very, very clear: no court found President Zelaya guilty of anything prior to his summary and unconstitutional expatriation on June 28.

The Supreme Court had admitted a complaint filed by the Public Prosecutor, and had begun a process of discovery of evidence, including issuing an extremely problematic, secret order that the military (not the constitutionally authorized National Police) carry out a raid on President Zelaya's house to detain him and take his statement, presumably accepting the Prosecutor's claim that the President was a flight risk.

In a previous post, we have demonstrated that the Supreme Court was employing the legal mechanism contained in the New Penal Processual Code published in La Gaceta May 20, 2000, which came into full effect February 20, 2002.

It was not until the passage of Decreto 175-2003 eighteen months later, published December 19, 2003, that revision of the relevant section of the 1982 Constitution, Article 205, point 15, changed the branch of government responsible for initiating legal action against high government officials from the National Congress to the Supreme Court.

It is critical to understand that these changes had less to do with establishing a mechanism to do the equivalent of impeaching high government officials, and more to do with solving a political problem caused by the abuse of immunity by Congress members.

The entangled concepts here are impeachment and immunity. Impeachment is understood as a process to accuse a public official of a crime, and remove him or her from office. Immunity is the idea that high government officials cannot be legally prosecuted for crimes while in office. This means that to punish government officials there first needs to be a proceeding to remove them from office. These are concepts rooted in British common law. Honduran law was based in different sources.

It was at the point that Decreto 175-2003 took effect that it became possible to argue there no longer was a constitutional mechanism for impeachment. Instead, from the date of publication of this decree, high government officials were subject to prosecution before a special panel of the Supreme Court.

Article 55, point 1 in the New Penal Processual Code explicitly defined as one of the exclusive rights of the Supreme Court to undertake legal cases against personas que gocen inmunidad ("persons who enjoy immunity") under the Constitution and legal codes.

The 1982 Constitution referenced immunity only in Article 200, defining the prerogatives of members of Congress (and did not mention immunity, for example, in the definition of the prerogatives of the Executive branch).

The original Constitutional article 205, no. 15 had said that the National Congress had the power to "Declare if there was or was not a place for the formación de causa against the President". Formación de causa here means "making a case". The case being made was for lifting immunity from prosecution (desafuero) of the high government official accused of a crime.

Originally, once the Congress considered there was enough basis to make a case against one of the high government officials enumerated, starting with the President, the Supreme Court had the power to hear the case (literally, conocer, the same verb as "to learn" or "to know").

Decreto 175-2003 paired the elimination of the role of Congress in identifying whether there were grounds for a case with an amendment of Article 200 of the Constitution, eliminating the immunity (inmunidad, exención) that had previously been enjoyed by Congress members.

The elimination of immunity was sparked by public outrage about a spate of highly visible crimes by congressional deputies, from rape to drug trafficking, which led to the accusation that in place of immunity, these deputies were operating with impunity (impunidad). The latter word is important because it is repeated in debates about President Zelaya, where in a Honduran context it would resonate with this recent set of public outrages.

Honduran legal scholar Rigoberto Cuellar Cruz notes that the form of immunity in the Honduran constitution was intended to cover accusations stemming from the actions of deputies in the process of making law, not to serve as a kind of "sovereign immunity" from all criminal prosecution.

It became politically expedient for Congress to allow such crimes by Congressional deputies to be prosecuted. Press coverage at the time said that political immunity, which dated from 1957, also covered the President, vice presidents, congress members, judges, cabinet ministers and their assistants, mayors, and officers of the armed forces, apparently by extension of the immunity enjoyed constitutionally by the National Congress.

The revocation of congressional constitutional immunity thus extended to other high government functionaries. This allowed the New Penal Processual Code to become the basis for prosecution of all high government officials.

A revision of the section of that code dealing with prosecution of high government officials followed. Decreto 195-2004 became effective when published on December 30, 2004. It gave the Supreme Court the legal authority to try high government officials, rather than following the "ordinary" process of lower courts that was applied to most citizens.

So from the perspective of Honduran constitutional and criminal procedural law, there is no need for a special impeachment procedure because the President, like other government officers, has no special immunity. What was retained from previous codes was a special procedure that protects sitting government officials from being subjected to the entire sequence of trials and appeals that would start in a lower court. Honduran legal scholar Rigoberto Cuellar Cruz notes that since the reform took effect, five high officials have been tried, including congressional deputies, cabinet ministers, and a previous President.

Yet in his assessment of the benefits of these reforms, Cuellar Cruz sounds a warning that is quite pertinent:

The second objection [to the reform] results from the fear founded in the sense that the political criteria that up till now has ruled in the decision whether or not to initiate a legal proceeding against deputies or other high officials, will continue intact: reducing the reform, in this case, to a simple change of place, from the Legislative Power to the Judicial Power.

A potential danger that, if it in fact happens, will be translated into a real frontal attempt against the independence of the latter (Judicial Power), in fulfilling its due and obligatory impartiality, and with that, a direct attempt against an essential concept that constitutes a State of Law.
The politicization that Cuellar Cruz feared would simply be transferred from the National Congress to the Supreme Court has indeed come to pass. So while we can say the Supreme Court was following the form of the proceeding outlined in the New Penal Processual Code, it is questionable whether the complaint they considered and acted on should really have been pursued.

The next question becomes: what does Honduran law allow as a penalty if a high government official is found guilty? would it really have been impossible to hold a sitting President responsible for his actions? To answer these questions, we need to start looking in detail at the law applying to the crimes of which President Zelaya was accused, a discussion we can most profitably start by examining the most serious charge made by the prosecutor: treason.

Timeline of applicable constitutional and criminal law:

  • 1982: Constitution establishes immunity for congressional deputies (Article 200) and defines the National Congress as having the role of determining if there is a basis for trying high government officials (Article 205, no. 15), and the Supreme Court as hearing such cases.

  • February 20, 2002: New Penal Processual Code, Decreto 9-99-E, comes into effect, establishing in Article 55, point 1, that the Supreme Court had authority over trials of officials who enjoyed immunity, and outlining procedures for trial of high government officials in Chapter III.

  • December 19, 2003: Decreto 175-2003 changes the branch of government responsible for initiating legal action against high government officials as established in Constitutional Article 205, point 15 from the National Congress to the Supreme Court. It also eliminates the immunity formerly enjoyed by members of congress.

  • December 30, 2004: Decreto 195-2004 revises Articles 414 to 417 of the New Processual Penal Code to remove the National Congress from the process of trying high government officials, and affirms the role of the Supreme Court in hearing such complaints and ruling on them.


Andrew said...

This is one of the best posts I've read. Unfortunately it now invalidates this analysis -- -- which was governing my current understanding of the constitutionality of the golpe. Am I correct that Prof. Cassel must have been using the old version of the constitution in this analysis?

RAJ said...

Hope you see this reply to this comment.

Yes, Prof. Cassel seems not to have had the newer constitution at hand when he wrote.

But his commentary is still a brilliant piece of analysis. Just that now there is even less validity in what the National Congress did, since it is entirely out of the loop now.

Andrew said...

Thanks for this blog. I check it about every ten minutes.

I've found another analysis, and I wondered what you thought of it.

I've also been curious about the Congress's power to "interpret" the Constitution. How broad is that?

RAJ said...

We'll check the analysis out and see what we think but not on the iPhone.

On Congressional power to interpret the constitution, it requires 2/3 vote and while it does not appear to require a special session, the acts published in La Gaceta that interpret the constitution start by saying that they are doing this, invoking Constitutional authority.

We will be posting on this again soon; some interesting implications for the Supreme Court we have not previously covered.