Treason! or, Maybe Not

The charges brought by the Public Prosecutor in the secret proceeding a justice of the Supreme Court began hearing on Friday, June 26, have been summarized here before; they may be read in full starting on page 32 of the 86 page "ExpedienteJudicial1.pdf" posted by the Honduran Supreme Court.

The title of the complaint brought by the Public Prosecutor called for the following actions:

(1) issue an order of capture
(2) communicate the deeds imputed to, and take the declaration of the accused
(3) suspend him in the exercise of his office
(4) authorize a raid on his home
(5) decree the proceeding secret

The justice of the Supreme Court hearing the complaint-- who not only did not reach a decision, but could not do so on his own, and certainly not before holding a trial at which the accused would have had the right to defend himself-- did issue an order of capture; did authorize the raid on President Zelaya's home; did order that his statement on the charges against him be taken; and did declare the proceeding secret; but did not order him suspended in the exercise of his office.

The crimes that the complaint alleged were cited as: offenses against the form of government; treason; abuse of authority; and usurpation of functions. It is worth exploring how the Constitution and Penal Law Code defines these crimes, and what the complaint cited as the grounds for each accusation.

Because it is the most serious crime, with the longest possible sentence, we begin with treason.

The relevant section begins on page 39 of the PDF. It cites Article 2 of the Constitution for the definition of treason as "the supplantation of popular sovereignty and the usurpation of the constituted powers", and Article 4 defining the form of government as "democratic, republican, and representative" and exercised by the Legislative, Executive, and Judicial branches independently and complementarity. The complaint further cited Constitution Article 5, paragraph 7, saying Article 374 could not be reformed by referendum or plebiscite, and Article 373, defining the procedure for the National Congress to amend the constitution by 2/3 vote. Finally, the complaint cites Constitutional Article 374, which defines the parts of the constitution that cannot be amended as Articles 373, 374, and specific provisions on presidential term and repeat service as president; and cites Article 375 stating that the constitution cannot be amended in any way other than those defined in the constitution itself.

Then it cites Article 310-A from the penal code, which defines the punishment for committing treason as defined in Constitution Article 2, and Article 311 of the penal code, which reads "The intent of any of the offenses included in article 310-A, will be punished as if the offense were consummated." But notably, it does not cite "the offenses included in Article 310-A", just the punishment listed there.

Why? is it that the penal code does not clarify what constitutes treason? far from it.

In his commentary on the constitutional passages he cites, the public prosecutor writes that

The crime of treason against the fatherland, is directed to affect the constitutional bases of the unity of the State as a political entity, actions that are consummated by acts directed outside the legal ways to divest in part the faculties attributed to the legally constituted powers

The section dealing with treason in the cited penal code actually runs from Article 302 to 311. Articles 302 to 310 specify what acts constitute treason: Article 302 stating it is "to execute acts that tend directly to impair the territorial integrity of the Republic, to subject it totally or partially to foreign dominion, to compromise its sovereignty, or attack the unity of the State".

Where the public prosecutor defines sovereignty as "exercised in this country by representation in conformity with the constitutional norms established", we find no such definition in either the constitution Article 2, nor the cited legal code.

Article 303 adds to the definition of treason serving in armed forces or taking part in military action against the country and Article 304 specifies additional bases for punishment if during the military action part of the national territory, troops, military material, food, or crops, or other things necessary for the defense of the State falls into enemy hands.

Article 305 defines provoking hostilities against Honduras as treason; Article 306 defines as treason anyone who, charged with carrying out affairs of state with another country, acts disloyally; Article 307 sanctions for treason anyone divulging state secrets; Article 308 defines drawing plans of military installations or entering military installations with that intention without being authorized; Article 309 sanctions anyone removing markers of the frontiers; and finally, Article 310 defines as treason inducing troops to desert or serve the enemy in time of war. Article 310-B defines acquiring Honduran citizenship by any illegal means as treason.

Comparing these defined forms of treason to the "crime" of calling a poll makes it clear how far removed the actual deeds for which President Zelaya was being pursued are from any of forms of treason recognized under Honduran law.

Even more interesting than the partial citation of the penal code on treason is the partial citation of Constitution Article 2. What was left out was the following:

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, by means of the plebiscite and the referendum

By leaving this clause out, the complaint gives the impression that the only constitutional form of government is the institutions that represent the people. This supports the otherwise weak argument that the proposed poll was inherently treasonous by asking the opinion of the people, instead of simply supporting the existing process of amendment of the constitution that is monopolized by the National Congress.

The main argument made for this interpretation starts by saying that President Zelaya supplanted popular sovereignty when he "convened the Honduran citizenry to participate in a popular opinion survey". He violated popular sovereignty by proposing to consult the sovereign people.

The argument proceeds

In this sense, the act of convening a National Constitutional Assembly, is evident that with the same it is intended to abolish the present Constitution, an action constituting the offense that concerns us [treason] in regard to that disposed in articles 373, 374 and 375 of our Constitution, does not lose its effectiveness and nor ceases to apply and cannot be the object of any modification, whether for any other means and proceeding distinct from that which is outlined in it; in consequence, under no circumstance can a new constitution be dictated and approved because that would bring with it the reform of the stone articles, the same that cannot be reformed in any case.

Hence any survey asking people's opinion about whether there should be a ballot question about whether to convene a constitutional convention, whose specific goals were entirely undefined, necessarily was treasonous because the only way to draft a new constitution would supposedly be to set aside the unalterable articles of the present constitution.

On the face of it, this is ridiculous. Even a biased Honduran court would, one would hope, see that this goes beyond the definition of treason as specific actions or the intention to commit those actions. In the face of the repeated statements that there was no intent to alter the unalterable articles; and given that the survey had no binding force to effect even the ballot referendum; it should have been easy to prove that this was an exaggerated claim.