The Public Prosecutor's Accusations of President Zelaya

In its defensive timeline of events, issued after the June 28 coup, the Honduran Supreme Court lists as point 8:

On June 26, 2009, based on a legal request dated June 25, 2009, presented by the Ministerio Publico (Public Prosecutor), against the citizen Jose Manuel Zelaya Rosales who was accused as responsible, by title of author of offenses against the Form of Government, Treason against the Homeland, Abuse of Authority and Usurpation of Functions, in prejudice to Public Administration and the State of Honduras; whose secrecy was suspended the 30th of June, 2009; by unanimous vote, the Supreme Court of Justice designated one of its Magistrates to comprehend the proceeding in the preparatory and intermediate steps, who accepted the request, and dictated an order of capture and for a raid.

The Supreme Court summary constructs a storyline that suggests that it accepted the charges of treason brought by the Public Prosecutor. This has led to the simplified claim that the Supreme Court had made some kind of decision in the case. As noted previously here, in fact, the Supreme Court, by appointing one of its number, José Tomás Arita Valle (one of the four Hondurans whose US visas were cancelled late last month), to start hearing the case, was taking the first step in a multi-stage legal procedure that had replaced the vague impeachment process originally present in the 1982 Constitution, but had yet to gather its own evidence. Thus, no decision had been reached, and by law, before reaching a decision, the accused would have had a chance to defend himself.

With that context, it is useful to look at what exactly the Public Prosecutor, Luis Alberto Rubí, claimed as the bases for his complaint to the court, in documents found on page 32 to 47 of the Supreme Court's "Expediente Judicial 1".

This begins by specifying what the prosecutor wants the court to do:

That it would release an order of capture-- that it would communicate the deeds that are attributed, that it would receive the declaration of the accused-- that it would suspend him in the exercise of his office-- that it would authorize the raiding of the dwelling-- that it would decree the secrecy of the file.

Of this wish list, the orders written by the justice delegated to hear the preliminary and intermediate phases of the proceeding authorized the capture and taking of the statement of President Zelaya, the raid on his house, and sealing the file (until the same petitioner asked for the file to be made public on June 29).

What Supreme Court magistrate Arita Valle did not do on June 26 was to suspend President Zelaya in the exercise of his office.

The rest of the case is divided into four main sections: Hechos, or deeds; Calificacion Juridica, or legal qualification (of the charges); Preceptos Jurídicos Aplicables al Delito que se Imputan (legal precepts applicable to the offenses charged); and Relación de las Pruebas que Fundamentan la Imputación (account of the evidence on which the accusation is based).

Eight "facts" are listed as part of the complaint:

(1) the publishing on March 23 of the intended poll questions

(2) a ruling on May 27 by the contentious administrative law court ordering the suspension of the poll. This ruling, it must be noted, was by a lower court and appears never to have been subject to Supreme Court review and affirmation, despite claims to the contrary.

(3) the issuing of a new decree on May 26 that replaced the previous proposed poll with one now labeled "encuesta de opinion" (opinion survey) in place of the legally barred "consulta popular" (poll).

(4) On May 29, publication of news of the planned survey, for which the assistance of the Armed Forces was specifically required

(5) On June 3, the court of contentious administrative law sent a demand that the President follow the interlocutory sentence of May 27

(6) On June 18, the same court sent another communication telling the president to abstain from any poll or questionnaire that would be an evasion of the sentences of May 27 and 29

(7) On June 18, the same court sent a request that within five days-- by June 23-- President Zelaya would inform the court of the steps adopted to comply with the sentence.

(8) On June 25, referred to as "today", the president went to the air base where the ballot materials were in the hands of the Armed Forces and removed the 814 cartons of these materials

These eight "deeds" are followed by four specific charges. Included in these are the now-expected citation of irrelevant sections of the constitution. It is here that we find the legal bases claimed for the four charges brought. Later posts will consider some of these in more detail, as Constitutional Law Month continues. For now, it is critical to examine what crimes were alleged, not simply what actions were described. In other words, how do the eight things described above become the four charges?

(1) Offense against the form of government, the first charge, is based on Article 328 No. 3 of the Penal Code, which prescribes punishment by imprisonment from 6-12 years, for undertaking acts intended to remove from the National Congress, Executive Power, or Supreme Court, their prerogatives or abilities. This is based on the assertion that any attempt to consult the public was prohibited except for those defined as plebiscites and referenda, reserved to other government entities. This is the focus of the main struggle between President Zelaya and the National Congress: could the latter restrict the executive branch from undertaking even non-binding consultation of the people? The symbolic value of the June 28 survey, since it was non-binding, and unlikely to lead to a November referendum even had a majority endorsed it, because such referenda are reserved to the National Congress, was as a demonstration of the desire to encourage popular participation in government.

(2) The second accusation is that President Zelaya committed treason, based on citing Constitutional Article 2, Article 4 and Article 5, paragraph 7.

The latter he says prohibits referenda or plebiscites on "projects oriented to reforming article 374 of the constitution", one of the so-called "stone articles". Here the prosecutor begins to argue that any constitutional reform would automatically have violated the ban on changing fixed articles, and equates the poll with binding referenda, and assumes a different content to such a referendum than that of the poll question.

Constitution Article 2 is where treason is defined. It reads in its entirety

ARTICULO 2.- La Soberanía corresponde al Pueblo del cual emanan todos los Poderes del Estado que se ejercen por representación.

(Sovereignty corresponds to the people from whom emanate all the Powers of State that are exercised by representation.)

La soberanía del Pueblo podrá también ejercerse de manera directa, a través del Plebiscito y el Referendo.

(The sovereignty of the People can also be exercised in a direct manner, through the Plebiscite and the Referendum.)

La suplantación de la Soberanía Popular y la usurpación de los poderes constituidos se tipifican como delitos de Traición a la Patria. La responsabilidad en estos casos es imprescriptible y podrá ser deducida de oficio o a petición de cualquier ciudadano.

(Supplanting popular sovereignty and usurpation of constituted powers are defined as offense of treason against the homeland. The responsibility in these cases is unprescriptable and can be deduced by service or by petition from any citizen.)


The complaint argues that President Zelaya committed treason by planning

to supplant the popular sovereignty, which is exercised in this country by representation in conformity with that which the constitutional norms establish, where sovereignty corresponds to the people from whom emanate all the Powers of State, as well as arrogating to himself faculties that he never had in virtue of the fact that the same are areas of expertise of the National Congress, in virtue of which by the issuing of three executive decrees, he convened the Honduran citizenry to participate in a popular opinion survey

The complaint argues that by considering convening a National Constituent Assembly

it is evident that with the same it is intended to rescind the present Constitution, an act constituting the offense that occupies us [treason] in regard to that disposed in articles 373, 374, and 375 of our Constitution, which shall not lose its validity and neither can stop being fulfilled nor be an object of any modification, except by some other medium and procedure distinct from that which it outlines itself; therefore, under no circumstance can a new constitution be dictated or approved because that would bring with it the reform of the stone articles, the same that cannot be reformed in any case.

After this long aside, which seems to be leading to a charge of treason for intending to revise the unrevisable articles (which would have required substantiation through evidence that President Zelaya advocated, or intended to change, these parts of the constitution), Rubí actually simply concludes that the President violated the prerogratives of the legislative branch by seeking to convene an opinion survey. And that, for some reason, was treason.

Rubí notes that the Penal Code article 310-A says treason as defined in Article 2 of the Constitution would be sanctioned by 15-20 years in prison.

(3) The third charge is abuse of authority, subject to 3 to 6 years of imprisonment, for failing to comply ith judicial or administrative orders, based on "hechos" 5 and 6 (ignoring communications from the court of contentious administration).

(4) Usurpation of functions is the final charge, punishable with 2-5 years of imprisonment and a fine of 5,000-10,000 lempiras (a maximum of just over $500), based on persisting in carrying out a public opinion survey which the prosecutor says should be covered by the Law of Electoral and Political Organizations that reserves to the Supreme Electoral Tribunal to "organize, direct, administer, and guard electoral processes and popular polls… convene elections, referendums, and plebiscites". Here, as many legal observers note, the fact that President Zelaya was kidnapped before he could carry out the actual survey surely complicates the case, since he cannot actually be accused simply of thinking about doing so, but would need to have done it.

Having laid out the four charges he proposes, the Public Prosecutor reiterates that these crimes would violate articles 349, 354, and 328 of the Penal Code, all based on Article 5 of the Constitution, which governs the conduct of referenda and plebiscites, not Article 2, the article concerning treasonous acts.

While earlier he engaged in a long discussion of the "stony articles" of the Constitution, he does not in fact charge that President Zelaya violated them. Rubí does not cite the Constitutional articles that would support an actual charge of treason.

A list of "evidence" (mainly publicly published government decrees) comes next, followed by Rubí's request for an order for a raid, because President Zelaya was a flight risk.

The final petition asks

that an order of capture be released and that migration alerts be issued against the accused Jose Manuel Zelaya Rosales, that a raid on the dwelling of the accused be ordered, that he be made to know the deeds of which he is accused, that the declaration of the accused be received, and consequently, judicial detention be decreed in virtue of the gravity of the punishment that might be imposed; that secrecy for the file be decreed, and that the date and hour for the initial hearing be indicated.

The Supreme Court orders, discussed here previously, paralleled this request quite closely. In ordering the requested actions, the magistrate echoed the citation of articles 349, 354, and 328 of the Penal Code and added citation of the relevant sections of the Penal Process Code. But curiously, he did not cite the sections of the Constitution offered as grounds for the complaint by Attorney Rubí. Instead, the Court cited articles 69, 61 [sic], 84, 89 and 90, which deal with the rights of those accused to due process.

What needed to happen next was a trial. Needless to say, the forcible expatriation of President Zelaya forestalled that. So what we need to consider next is how, under the procedures for trying high government officials, the primarily administrative offenses that were actually supported by documentation would have been treated, had President Zelaya remained in the country and provided the Court the statement it authorized being taken.