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.

Sunday, August 2, 2009

Modifying Articles 239 and 240 or how Elvin Santos became a Presidential Candidate

Through a strange set of coincidences, Article 239 of the Constitution, cited by many apologists for the coup as part of their argument for the forcible removal of President Zelaya, figures prominently in how Manuel Zelaya's former vice president, Elvin Santos became a presidential candidate for the elections on November 29, 2009. Here's the rather strange tale.

In 1998, the Honduran Congress modified article 239 (decreto 245-98) of the Constitution to include the Vice President among the list of those who cannot run for President. In 2002, Congress made 3 changes to article 240 including removing the restriction that kept the sitting President of the Congress from running for President (decretos 268-2002, 412-2002, and 374-2002). Pepe Lobo, then President of Congress, ran for President against Manuel Zelaya, taking advantage of the change to the Constitution that he oversaw.

As modified, Article 239 reads "The citizen who has held executive power cannot be President or Vice President of the Republic. Anyone who breaks this clause or proposes its reform, or supports it directly or indirectly, ceases immediately to exercise their respective positions, and will remain unable to hold public office for 10 years."


On August 24, 2008, the Supreme Election Tribunal voted overwhelmingly to reject placing Elvin Santos's name as a Candidate for President in the Primary of the Liberal Party of Honduras. They based this determination on changes to the Constitution that had previously been approved by Congress. Instead, Santos hastily had to organize a substitute candidate, Mauricio Villeda Bermudez, son of former president Ramon Villeda Morales. (Most recently, Mauricio Villeda has been negotiating for Roberto Micheletti in the Oscar Arias-mediated San Jose negotiations.)

On October 8, 2008 the Public Prosecutor in Defense of the Constitution, René Adán Tomé, challenged the 1998 and 2002 reforms to articles 239 and 240 in the Supreme Court.

On November 7th, the Supreme Court determined that the constitutional reforms to article 239 and 240 of the constitution were unconstitutional, and that they should go back to reading the way they were written in 1982. The changes to article 240 had already been found unconstitutional on December 14, 2007. These were the changes that let the sitting President of the Congress run for President. In the case of article 239, the Court found that article 374 prevailed, and that article 239 could not be modified; but that no law had been broken. They wrote that it wasn't a crime for Congress to try and reform articles 239 and 240, but it was based on an erroneous belief. The changes made to article 239 in 1998, to add the Vice President to the list of people who cannot ever run for President, were overturned.

On November 18, 2008, Elvin Santos submitted his irrevocable resignation to Congress, which considered, and rejected it. Congress considered two resolutions. The first rejected his resignation, and the second noted that under the constitution he was banned for life from seeking the presidency.

Micheletti said of Elvin Santos, "The court has made things clear, but he keeps on lying to the people, they keep announcing a citizen who cannot be a candidate, they keep telling you to vote for John who is really Paul, in short, we don't have to put up with these shameless people who bring nothing but confusion to the electorate and the Honduran people. He is not a candidate, he cannot be a candidate, so says the Supreme Court and the Congress ratified this afternoon"

On November 30, 2008 Mauricio Villeda Bermudez won the primary election defeating the President of Congress, Roberto Micheletti.

On December 17, 2008, Congress reconsidered, and accepted the resignation of Elvin Santos as Vice President. They decided to emit a decree (169-2008) that said that if the Vice President resigned at least 6 months before the election, he can run for President. Santos announced he would go to the Supreme Election Tribunal and have himself inscribed as Presidential candidate for the Liberal Party just as soon as Mauricio Villeda Bermudez resigned. Mauricio Villeda Bermudez irrevocably resigned as candidate in favor of Elvin Santos, and at midnight on Dec. 18, the Supreme Election Tribunal met and inscribed him as the Liberal Party candidate for President.

As it now stands, Articles 239 and 240 have been rolled back to the form they had in 1982.

Article 239 - A citizen who has exercised executive power cannot be President or President-designate. Anyone who breaks this clause or proposes its reform, or supports it directly or indirectly, ceases immediately to exercise their respective positions, and will remain unable to hold public office for 10 years.

Article 240 - The following people cannot be elected President of the Republic:
1. those who have been designated President, Secretaries and Subsecretaries of State, members of the National Election Tribunal, judges, Presidents, Vice Presidents, Heads, Sub Heads, Directors, Subdirectors, Executive Secretaries of decentralized institutions, Controllers and Subcontrollers of the Republic, Attorney General and Sub-Attorney General of the Republic, Director and Subdirector of Probity, who have exercised their office during the 6 months prior to the election for President of the Republic.
2. officers and generals of the Armed Forces
3. members of the joint chiefs of staff, Police, and security forces
4. the military on active service or members of any other armed force that have served in it during the last 12 months.
5. the wife and relatives of the heads of the armed forces, within 4 degrees of consanguinity or 2 of afinity.
6. relatives of the President and those who have served as president in the year preceeding the election, within 4 degrees of consanguinity or two of affinity.
7. Representatives or lawyers for companies that receive concessions from the state for exploiting natural resources, service contracts, public works done with national funds, or those that owe the state money.

These are the men who today, less than one year later, are vociferously proclaiming their fierce defense of constitutional authority in matters of presidential elections. Is it any wonder that Honduran citizens participate in national elections in ever declining numbers? Could it be that it looks like the system is rigged?

8 comments:

Nell said...

The timing of this post couldn't be more helpful. Last night I was exploring links relating to Santos' resignation and Zelaya's appointment of Aristides Mejia to replace him as VP on January 6.

The research was sparked by a Miami Herald story in which it was reported that the office of VP was vacant at the time of the coup, a "twist of fate" that made Micheletti the constitutional successor. This seemed obviously, flatly, surreally untrue, given that Aristides Mejia was listed as VP in the State Dept. country report in February of this year, that there are news accounts of him attending a regional summit as VP in March at which VP Biden represented the U.S., and that Mejia's listed as VP of Honduras on the program of a UN economic conference at which he spoke during the week before the coup.

However, with the background of controversy surrounding Santos' primary campaign and resignation as VP, it became clearer how the coup supporters were managing to spin away Mejia's existence.

The right-wing press, and even some Zelaya defenders (in response to National Party braying about Zelaya's appointment of Mejia being a grave constitutional violation) were making a big deal of Mejia's appointed status (always referring to him as comisionado vp, sometimes with scare quotes). The idea appeared to be that he was filling the administrative functions of the job, but was not eligible to take over in the event of the unavailability of the president because he hadn't been elected VP.

The Public Prosecutor in Defense of the Constitution* also weighed in on Jan. 7, immediately after Zelaya named Mejia, saying that appointing a replacement VP was not among the president's 45 enumerated powers.
*[This was Georgina Sierra; do you know when and how she came to hold the office that Rene Tome had held in October 2008?]

If, this past April, someone had noted that the effort to prevent Zelaya from being able to name a replacement VP who could finish his term if something were to happen to him seemed to improve significantly the chances of a coup or assassination in which Micheletti would ascend to the presidency, that person would have been dismissed as paranoid.

Yet, given that Santos' decision to run for president was not Zelaya's doing, and that Santos immediately supported the coup, this set of decisions looks in retrospect like a long, elaborate setup.

Or else it is a "twist of fate" that the VP slot happened to be empty, another happy byproduct for the coup-makers of a long string of do-as-I-say-not-as-I-do politics from the Congress and results-driven "jurisprudence" from the Supreme Court and TSE.

rns said...

Aristides Mejia was Defense Minister in January 2009 when Zelaya named him Vice Presidential Minister (decreto Executivo 001-2009) to handle the administrative duties left vacant by Elvin Santo's resignation. The constitution says the Vice President is elected, so Zelaya could not name a replacement Vice President. Instead, he named a cabinet level officer to handle the duties of the absent Vice President, the Vice President Minister. Any listing of Mejia as Vice President was technically incorrect.

I don't think Santos quitting was a setup for anything. Micheletti very much wanted to be president, so having Santos run against him would not be something he desired.

RAJ said...

But that is not to say that Micheletti was unaware that only now, the peculiar set of circumstances that existed would allow him to become President, his dream job, at least for a few months. And he doesn't even have to give up his career in Congress for it, but can return to that.

I also think the escapade with Elvin Santos wasn't engineered precisely to make a coup and/or other removal of Zelaya possible. Instead, I suspect that Micheletti, once he lost the primary, saw supporting this "substitution" that he previously opposed as a way to consolidate influence on a likely next president. Villeda, if he had stayed on the ballot and been elected, would have owed no loyalty to Micheletti and Elvin Santos would have been in a real position to consolidate power against Micheletti. Change sides, problem solved...

rns said...

The post of Vice President was specifically created by Congress in 2002 (Decreto 374-2002) which modified the constitution to insert the post of Vice President everywhere it previously refered to the President and the 3 "designados" to the Presidency. Its interesting to note that they go back to the 1936 constitution to say that "traditionally" we've had this position.

As a result, the TSE in the November, 2008 primaries, had the movements within the parties register a Presidential candidate, and a Vice Presidential candidate.

However, the CSJ decision on November 7, 2008, declared unconstitutional this decree, eliminating the position of VP again.

So properly speaking, Honduras does not have a Vice President.

phoenixwoman said...

Great post, RNS. This is one of three blogs that I check first thing.

--Charles of MercuryRising
www.phoenixwoman.wordpress.com

Nell said...

Charles, I think you meant to compliment RAJ? But I have also appreciated the information in rns's comments, so thanks to both of you.

RAJ said...

Both of us appreciate the kind words. We are a team and have been for 34 years. Sometimes we do not know which of us did what. RNS has the patience to read every Honduran daily online every day and as a historian sees the connections runnng back years. RAJ brings a literary critic's eye to not just what people say, but how. RAJ writes more here; RNS battles on Wikipedia.

And simetimes we differ on what we think people are doing.

Nell said...

Re-reading this post and its comments with an elections mindset, I realize that I missed the implications of this information from rns:

The post of Vice President was specifically created by Congress in 2002 (Decreto 374-2002) which modified the constitution to insert the post of Vice President everywhere it previously refered to the President and the 3 "designados" to the Presidency.
...
As a result, the TSE in the November, 2008 primaries, had the movements within the parties register a Presidential candidate, and a Vice Presidential candidate.

However, the CSJ decision on November 7, 2008, declared unconstitutional this decree, eliminating the position of VP again.

So properly speaking, Honduras does not have a Vice President.


Let me make sure I understand correctly: No one will be sworn in as VP in January, regardless of the election outcome; the post simply no longer exists (unless/until the constitution is changed in some way that the Supreme Court finds legal).

Out of curiosity, who did the major parties register as VP candidates for the November primaries? Who was Lobo's VP candidate in 2005?