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
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?