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.
Saturday, August 22, 2009
Is there anything new in the Supreme Court's comments on the San Jose Accord?
Surprise: they don't like it.
Actually, it is a breath of fresh air to have some branch of the de facto regime actually admit that they have no intention of accepting core principles of the San Jose Accord. The regime has realized it can virtually endlessly play out the clock by reiterating supposed support for the Accord, while either remaining silent about the restoration of the democratically elected president, or actively refusing to consider that point.
And while they are subtle, there are some interesting points in the Supreme Court statement.
Press coverage has emphasized that the court reiterated that President Zelaya would have to stand trial. But what they actually said is that there is an existing legal case against him, which has to be finalized following the penal processual code.
As readers of this blog know, the required process had only begun the discovery phase of gathering statements. The single justice who was assigned that task still could have decided to dismiss the case, a defense could have been mounted, and the case would have had to be proved. So while this is being spun under the reigning perspective of "guilty until proven innocent", under the actual reformed legal code's presumption of innocence, a chance to fight the charges, weak as they are, would hardly be a reason not to come back.
It is one thing to accuse someone of really serious crimes-- all those capital letters!-- and another to prove it.
(And notice the capital letters come in discussing the San Jose accord's call for President Zelaya to abandon constitutional reform for the rest of his term in office; it looks like it is emphasizing how guilty he is, but in fact when it talks about the ongoing legal case, it refrains from the scare tactics; the capitals here are to emphasize how dreadful the public poll or survey was, that it was so horrific that it led to charges of serious crimes. Not that these were proven, just that the poll motivated a lawyer to file these charges.)
Most interesting of all: the court makes no reference to the supposed 18 point indictment, so trumpeted by the Micheletti regime, which as we noted previously actually lacks the most dark crimes being mentioned in conjunction with President Zelaya and instead is full of multiple points of administrative law.
It is also intriguing that in the section commenting on the San Jose Accord's call to restore the government to its condition before June 28, the court feels obliged to address a possible criticism that no one has actually made. So, they burst out in a description of how their branch is really legal, legally appointed waaay back in January (unlike some other branches we might mention but are too polite to embarrass: yes, we're looking at you, de facto executive branch...).
Anxiety about what will happen on restoral also may explain the insertion in their list of comments on the final dispositions in the San Jose Accord of a reiteration of their own approval of their own actions, which they say have been absolutely in accord with the Constitution and within the framework of impartiality.
Nothing to see here, move along; did I mention that the executive branch is really, really not in keeping with the constitutional and legal framework? well, did I?.
And of course, like all parts of the de facto regime's government, they cherry-pick the accord for phrases they like and try to spin them. Thus, in their seventh comment on the final dispositions, they call for the international community to respect Honduran sovereignty and the non-interference clause in the UN Charter.
The truly dangerous thing about this regime, again, is that they seem to really believe they are just misunderstood; their violations are all felicitous exceptions to the rules.
Oh, and the there's that little thing in the preamble where they register their disrespect for the very idea of constitutional reform by the people. So very much better not to let them get their hands on it.
This dispute will not go away: the reactionary position is now clearly that any attempt to modify the constitution (except all the modifications congress practices for all sorts of reasons) is impermissable. Added to which we now have the premature promotion of the participants in the 1981 constitutional drafting to the status of would-be Jeffersons and Madisons.
In service of better understanding by the English speaking community, here is [the first half of] a translation of the document emitted by the Supreme Court [with the rest to come]:
A. Constitutional and doctrinal dispositions relating to the document of the proposed 'San Jose Accord':
I. Constitutional dispositions about the organization of the State of Honduras.
In conformity with the Constitution of the Republic, Honduras is a State of Law, its constitutional form of government is Republican, democratic, and representative, exercised by the three powers (Legislative, executive, and Judicial), complementary, independent and without relations of subordination. Sovereignty corresponds to the people from which emanates all the powers of State that are exercised by representation.
Within the constitutional organization of the Honduran State, to the Judicial Power corresponds the power to impart justice by independent justices and magistrates, uniquely subject to the Constitution and the Laws, through its application in concrete cases, judging and executing judgment, pronouncing through resolutions and sentences issued with the independence that the constitutional text ordains.
II. Doctrinal dispositions about constitutional reform and the set-in-stone clauses.
Every Constitutional State establishes mechanisms to reform its Constitution, as a means to assure and maintain the conservation of the ideals that inspire the State of Law and Democracy. The key to the success of constitutions, as norms given supremacy, in any democratic society is precisely to come to be the result of consensus or of a pact of all a society and not of circumstantial will, in addition to foreshadow in its norms the form of materializing constitutional changes, as well as the mechanisms that permit a guarantee that the validity of the popular will not be supplanted.
In the eagerness to fortify democracy it is important to visualize the necessary equilibrium of the two principles that are always found present in every constitutional reform: constitutional supremacy and popular sovereignty. On the one hand, constitutional supremacy that implies that the Constitution is the supreme norm that obliges equally those who govern and those who are governed, prescribing the mechanisms for constitutional reform, as limits to the powers constituted by the people themselves. On the other hand, popular sovereignty that empowers the people as the holder of sovereignty, the exercise of constituent power to modify the Constitutional State, its organization and the Constitution itself, in the form prescribed in that document itself, for which there are established limitations of a material kind, such as irreformable or set-in-stone clauses. These aspects, without doubt were considered by the legislative constituent at the moment of the approval of the Honduran Constitution of 1982.
In this sense, the majority of the irreformable or set-in-stone articles of the Honduran Constitution are directed to establish a rigidity so that the Constitution cannot be reformed freely at the whim of the political forces governing the country. Constitutional Article 374 expressly comes to be a clear limit on the possibility to return to the epoch of constitutional rupture on the part of military regimes, as well as to impede that, once in power, the holder of the Executive Power should intend to convert him- or her-self into a president "ad infinitum", by applying the prohibition against that functionary opting for re-election. Today, the democratic State of Law should strengthen itself in order to avoid the menace of the calls of an imperialist presidency, democratic plebiscites, or even so-called democracies without a state of law, in which they seek to infringe or elude the fulfillment of the Constitution and Laws reigning in each country.
B. Opinion of the Supreme Court of Justice about the document of the proposed "San Jose Accord"
The Supreme Court of Justice, in the framework of its constitutional attributes, subject only to the Constitution of the Republic, international instruments and laws, in relation to the document of the proposed "San Jose Accord", in that which could fall within the competence of this Power, for actions realized or by express reference to the Judicial Power in the contents of the said document and other related aspects with constitutional dispositions, manifests its opinion in the following terms:
First: On the National Government of Unity and Reconciliation
In regard to this point in which the conformation of a "national government of unity and reconciliation integrated by representatives of the diverse political parties recognized by its capacity, repute, suitability, and will to dialogue" will be established, in this respect it is important to observe that even though this postulate is introduced within the ideals of participatory democracy, nonetheless it should be held in mind what is established in Article 245, number 5 of the Constitution of the Republic of Honduras, that grants to the President of the Republic the power to name and separate freely the Cabinet members.
Second: Renunciation of convening a National Constituent Assembly or to Reform the irreformable part of the Constitution
It is demonstrated that the convocation for a poll or survey to modify the Constitution of the Republic, in contravention of judicial resolutions dictated by competent tribunals, declaring the same illegal for not being framed within the legal and constitutional dispositions in effect, was one of the charges on which was based the legal filing presented by the Attorney General of the State, against the ex-incumbent of the Executive Power, citizen Jose Manuel Zelaya Rosales, for supposing him responsible for offenses against the FORM OF GOVERNMENT, TREASON AGAINST THE FATHERLAND, ABUSE OF AUTHORITY AND USURPATION OF FUNCTIONS, in prejudice against the PUBLIC ADMINISTRATION AND THE STATE OF HONDURAS.
Given the principle of constitutional supremacy that the Constitution of the Republic of Honduras implies is the supreme norm of State that obligates equally the governors and those governed, and that prescribes the mechanisms for constitutional reform, it is obligatory observance of what is established in its Articles 5, 239, 373, and 374, in reference to the impossibility of inciting, promoting, or supporting modifications to the form of government, national territory, presidential term, to the prohibition against a citizen that had that role under any title to be President of the Republic again, and in reference to those who cannot be President of the Republic for the following period.
Third: Concerning the return of the Powers of State to their integration previous to June 28
To this effect and understanding that this refers to those who wielded the incumbency of the same, since as Powers of State they continue functioning and operating in the framework of the attributes and limits that the Constitution, international agreements, and laws impose, taking into consideration that the Public Prosecutor's office has exercised penal action interposing filings against citizens that are supposed responsible for the commission of offenses and those give rise from the beginning to corresponding penal cases that the courts and tribunals are hearing, the only way to finalize or suspend these penal processes is in conformity with what is regulated in our penal processual legislation, so that an arrangement of political character must necessarily pass in respect to legality and corresponding juridical control. On the contrary, it would be true nonsense if the search and construction of accords in a State of Law, is accomplished by violating or leaving aside the Constitution and the Laws.
In respect to and by express allusion to the Judicial Power, it affirms that this Power of State was legitimately constituted in conformity with the process of selection and election regulated in Articles 311 and 312 of the Constitution of the Republic for a period of seven years beginning January 25, 2009, and from the referenced date has been fulfilling its functions and attributes in conformity with that indicated in the Constitution of the Republic and the Law.
In relation to the return of the citizen Jose Manuel Zelaya Rosales to the Presidency of the Republic, until the conclusion of the present governmental term, the 27 of January, it should be taken into account that as has been mentioned previously, there exist penal actions presented by the Attorney General of the Republic; in consequence and in strict legality as long as there do not exist other applicable legal dispositions he cannot avoid having to submit himself to the established proceedings in the penal processual code.