When is a "Green Light" really Red: "Amnesty" and the National Congress

La Tribuna de Honduras published an article early today headlined "National Congress gives green light to amnesty".

Hurrah! celebrations should break out! a roadblock is cleared, the San Jose Accords can be signed, Zelaya can be returned.

Um, not so fast (again): the long statement contains some not-so-hidden reservations.

First, here is the executive summary provided at the end of the statement:

Esta comisión es del criterio que:
-La atribución de conceder amnistía corresponde al Poder [Legislativo]*

-De existir un acuerdo definitivo acordado por las partes, este poder deberá expresar su voluntad política de emitir el acuerdo de amnistía

-La amnistía deberá circunscribirse exclusivamente a los delitos políticos con ocasión de este conflicto antes del 2009

-El compromiso que se adquiera deberá ceñirse a la constitución y sus leyes.

[This commission is of the judgment that:

-The attribution to concede amnesty corresponds to the [Legislative] Power*

-If there exists a definitive agreement, agreed to by the parties, this power ought to express its political will to issue an amnesty accord

-The amnesty should be exclusively circumscribed to the political offenses that are the occasion of this conflict before 2009

-The compromise that is reached ought to bind itself to the constitution and laws.]

*While the published summary literally says "Executive Power", I assume that was an error, because the actual long statement says this is an attribute of the Legislative Power. I don't think the Congress is that devious, and the Constitutional article they reference, Article 205, No. 16, is the one that specifies the powers of Congress, including:

16. Conceder amnistía por delitos políticos y comunes conexos; fuera de esta caso el Congreso Nacional no podrá dictar resoluciones por vía de gracia

(to concede amnesty for political crimes and common crimes connected to them; outside of this case, the National Congress cannot dictate resolutions of pardon; highlighting mine)

The highlighted clause in the Constitutional grant of power is critical here, because the National Congress, in its "green light", actually explicitly excluded any common crimes that might have been connected to political crimes. The actual San Jose Accord language calls for an amnesty for political crimes as defined in this same Constitutional clause; but the National Congress cited the wording in the Accord itself, which lacks the critical "and common crimes connected to them" part, so as to declare that they would grant amnesty only for certain specific crimes that they define as political.

As the prosecutor continues to bring trumped-up charges against President Zelaya for such things as fraud and drug-trafficking (remember that one?) the language here is clearly intended to allow the regime to continue prosecution on those and any other offenses they deem not "political". This is why the constitutional clause has that addendum, and overlooking it in the language of the San Jose Accord is yet another example of how Oscar Arias really produced an inadequate text by taking on board too much of the Micheletti regimen's language.

Congress helpfully specified precisely which offenses it considered political, and would therefore agree to amnesty for in the event that someone else negotiated an agreement:

los delitos políticos están taxativamente enunciados en el artículo 13-A del Código Penal Vigente, es decir, los capítulos I, II y III del título XI; los capítulos I, II y III del título XII; y los capítulos V, VI y VII del título XII

(political offenses are exhaustively enumerated in Article 13-A of the Penal Code, that is to say, chapters I, II and III of Title XI; Chapters I, II and III of Title XII; and Chapters V, VI and VII of Title XII)

Article 13-A actually contains, immediately following the enumeration of the cited sections, the missing language about connected common crimes:

Son delitos comunes conexos con políticos los que tengan relación directa o inmediata con un delito político o sean un medio natural y frecuente de preparar, realizar o favorecer éste

Common crimes connected with the political ones are those that have a direct or immediate relation to a political crime or that would be a natural and frequent means to prepare, carry out, or favor these [political crimes]

The omission is surely not accidental. The regime is honing its skills in double-speak more every day.

There is also something curious in the delimitation of political crimes by the National Congress; these include Treason (Title IX, Chapters I-III) the main political crime contained in the original complaint against Zelaya by the Public Prosecutor discussed in a previous post.

But the cited sections of the penal code also include Offenses against Internal Security of the State, Against the Form of Government, Terrorism, Rebellion and Sedition (Title XII, Chapters I-III and V-VII), sections that explicitly sanction violence toward the President. Crimes "Against the Form of Government" also are part of the Public Prosecutors' June 26 complaint against President Zelaya, so the points of complaint are reduced to at most two: Abuse of Authority and Usurpation of Powers. (The added points of charges filed since June 28 should be irrelevant under the San Jose Accord since it calls for reverting to conditions as of that date.)

But Congress notably skipped Title XII, Chapter IV.

Why? The title of this chapter is "Offenses committed by officials against the exercise of rights guaranteed by the constitution". It would include sanctions for the crimes against civil rights that are occurring every day in the country; it also includes expatriation. I pored through this section, expecting to see crimes of which President Zelaya has been accused; instead, if I were the military, I would feel that this was aimed at me.

More important than Congress' tricky agreement/non-agreement on amnesty is the second opinion in this congressional statement. Congress decided that it only had the right to weigh in on two of the eleven points in the proposed San Jose Accord. The Accord included the call for amnesty in Point 2; but more significant, truly, is the Congress' second, extremely circumspect opinion on Point 6, including the way they characterized that point.

As a reminder, in the final version of Oscar Arias' proposal, the non-negotiable return of President Zelaya was demoted from the top of the agreement to the middle, and was softened further by being part of a generalized statement that everything should go back to the way it was June 27, like a bad soap opera where someone wakes up and finds an overly-complicated subplot was all a bad dream:

6. On the Return of the Powers of State to their Integration Prior to the 28th of June

To achieve reconciliation and fortify democracy, we ask the National Congress that, for the goal of recovering the integration and legitimate conformation of the powers constituted the 28th of June of 2009, in the proceeding they return the situation of the Executive Power, Legislative Power, Judicial Power and Supreme Electoral Tribunal to their state prior to June 28, for having been in conformity according to Articles 202, 205, points 9 and 11, and 236 of the Constitution of the Republic of Honduras. The preceding implies the return of Jose Manuel Zelaya Rosales to the Presidency of the Republic until the conclusion of the present governmental period, the 27th of January, 2010.

Congress expressed itself empowered to comment on this point, but not so much so that they actually clarified what it was about:

3.En cuanto al punto seis de la propuesta del Acuerdo, la Comisión Legislativa especial nombrada al efecto expresa lo siguiente:


3.1.El compromiso que se adquiera en el marco de las negociaciones de San José, deberá ceñirse a lo prescrito por nuestra Constitución y sus Leyes, así como en el respeto y acatamiento de las decisiones jurisdiccionales.


(In regard to the sixth point of the proposed Accord, the special Legislative Commission named for this purpose expressed the following:


The compromise that might be acquired within the framework of the negotiations of San Jose, ought to be bound by what is prescribed in our Constitution and its Laws, as well as in respect and respectfulness for jurisdictional decisions.)

Translated into simple language: the Congress says that any restoral of the government-- including Zelaya-- has to be constitutional. And of course, the de facto regime has claimed repeatedly that since the "substitution" of Micheletti on Sunday June 28 was "constitutional", it would be unconstitutional to reverse those changes.

This is rejecting restoration without admitting it.