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.

Saturday, August 15, 2009

"Will no One Rid Me of This Troublesome Priest?": Legal Retaliation Threatened for Calling for Boycotting the Election

Roberto Micheletti might well want to echo this famous cry of England's King Henry II, frustrated by Archibishop Thomas Becket, as Honduras' independent clergy continue to break ranks with their own archbishop, apologist for the coup.

And as with Becket, there are officials of the Micheletti regime ready to take up the challenge.

An article in the pro-coup El Heraldo on August 14 quotes the regime's appointee usurping the functions of the Minister of Gobernación and Justicia, Oscar Matute, threatening Father Andrés Tamaya of Olancho.

Tamayo is a parish priest, ecologist and activist against deforestation in eastern Honduras (a cause that has claimed the lives of multiple Hondurans assassinated since the late 1990s, among them Carlos Escaleras, Carlos Flores, Janeth Kawas, and Carlos Luna, and that has made Father Tamayo himself an object of death threats), whose work was recognized in 2005 by a Goldman Prize.

Despite his many years of residence in and work for Honduras, Matute rather ham-handedly implies that Father Tamayo's salvadoran birthplace makes him somehow less truly Honduran, bringing it up in an otherwise mystifying hypothetical comment that leads the Heraldo article:
If you as a honduran arrived in El Salvador to incite the people to not vote, they would immediately put you in jail or throw you out ['de patitas en la calle'].
Now, some might say I am being overly sensitive here. But there is a long-term current of anti-salvadoran sentiment in Honduras that is open to priming, like the anti-nicaraguan sentiment already being exploited by the de facto regime. While the truth is that Honduras' population is intimately mixed with the populations of its neighbors, especially Nicaragua and El Salvador, this troubling and volatile chauvinism is already part of regime rhetoric.

Honduras' constitutional Article 24 actually establishes relatively generous means to become a naturalized citizen, so that any Central American who lives one year in the country can declare Honduran citizenship. Father Tamayo has lived and worked in Honduras since 1983. The writer of the article feels the need to insert in its text the fact that Tamayo is "of salvadoran origin, naturalized honduran", which both constitutionally and pragmatically is of no relevance. Bringing up El Salvador in this context is clearly meant to imply he is not really Honduran.

The article argues that Tamayo
could lose his Honduran citizenship if it is confirmed that he has made calls against the electoral process that is to be carried out this November 29.
Father Tamayo has been widely quoted as calling for a boycott:
If the coup government (of Roberto Micheletti) does not accept restoration [of President Zelaya], there will be no elections. We will boycott the elections.
[AFP has the same story in English with a slightly different version of the quote.]


El Heraldo quotes Matute responding in a radio broadcast:
If [Tamayo] has expressed those concepts publicly, that would expose him to the sanctions established by the laws.
So, is there a legal basis to Matute's threat? Let's start with the Constitution. Article 29 says that naturalized citizenship can be lost by accepting citizenship in another country, or by the revocation of a letter of naturalization (which is a means by which citizenship can be bestowed on people who have not otherwise qualified for it by residency).

Neither option fits here. Article 40, point 3, does define as a "duty" of citizens to exercise the right to vote. And Article 42, point 4 says that citizenship rights can be lost, following a judicial proceeding,
Por coartar la libertad de sufragio, adulterar documentos electorales o emplear medios fraudulentos para burlar la voluntad popular



(For restricting the liberty to vote, adulturating electoral documents or employing fraudulent means to circumvent the popular will)
But what, precisely, would meet this standard?

The best I can come up with as a basis for Matute to be threatening loss of citizenship for advocating a boycott is Constitutional Article 44. It states that
El voto es universal, obligatorio, igualitario, directo libre y secreto.



The vote is universal, obligatory, egalitarian, direct, free and secret.
Matute might try to prosecute on the basis that Tamayo, and others urging a boycott, were encouraging Hondurans to fail in a fundamental constitutional duty.

With participation rates in elections dropping below 50% of the electorate, obviously, the obligatory nature of the vote is not currently being enforced. Otherwise, half the Honduran electorate would be in prison doing 4 to 6 years, based on penalties outlined in the Law of Elections, Decreto 44-204, which became effective with its publication in La Gaceta on May 15, 2004.

Article 209, point 1, of the electoral law sanctions anyone who "impedes another with or without violence from exercising his or her electoral rights". Or Matute could try to apply Article 212, point 15, which sanctions "supplanting another person in the exercise of the vote" (which carries the same penalty) but that pretty clearly is intended for someone pretending to be someone else.

I cannot find anything in Honduran election law that actually says urging others not to vote is punishable.

There isn't even anything defining sanctions for failing to exercise the "obligatory" vote.

I question whether a legal case could actually be made for violating the constitutional demand that all citizens vote.

So while this constitutional prescription must be the basis on which the de facto regime now threatens those who are speaking out against forced participation in the November elections, if they are held under the authoritarian regime, I am dubious about there actually being a legal basis under the penal code that would allow prosecution of someone urging others not to vote.

Matute vaguely says
these are serious errors and could carry responsibilities (for Tamayo).
Looking at it from the basis of the actual law codes he would need to satisfy in a prosecution, this reads as intimidation.

The bad news: the regime is apparently prepared to prosecute an internationally known activist who also happens to be a Catholic priest on flimsy charges that could easily be countered, among other things with the constitutional guarantees of freedom of speech and the requirement that people not be prosecuted for their opinions.

The good news: the only reason for them to be this concerned is if a boycott seems like a viable and dangerous thing.

14 comments:

PablitoSinPistola said...

Readers may also be interested to know about Padre Fausto Milla, another extraordinary Catholic priest who lives in Santa Rosa de Copan where he runs a clinic and treats patients based on his knowledge of indigenous medicine. He can be seen addressing a huge crowd of anti-coup demonstrators in San Pedro Sula here:

http://www.youtube.com/watch?v=iNbjcsugo_Q&feature=related

(in Spanish, quite a stirring speech)

TITO said...

RAJ, these golpistas do not scare most people. Matute´s statement are just to intimidate the movement and might lead to provocation.

Pablito, if I´m not mistaken, Padre Milla (born on 1927) was talking in Radio Globo last night about running for president. That someone (he didn't say who) talk to him about it and he said he was considering the proposal.

According to the current constitution, he can't run for president because he is an ordain priest (art. 77).

The radio announcer asked him about this article. He said that by the time he turns 85 he has to resign to his current clerical position implying he might do it for the next presidential election (2013).

http://www.honduraslaboral.org/leer.php/657.

RAJ said...

That would make at least two of the priests active in resistance who have been mentioned as possible candidates of a protest campaign, along with Bishop Luis Alonso Santos of Copan.

As was discussed in comments on a previous blogpost, and mentioned by TITO here, the constitution requires candidates to be in a secular state.

I had not thought about the possibility of a priest resigning from his church post as a way to meet this requirement. Secular means not working for the church.

However, I wonder how realistic it is for someone 73 (Santos) or Milla's age (82) to be put forward for this office as anything other than a symbolic gesture.

John (Juan) Donaghy said...

I just posted a translation of an article on Padre Fausto. http://www.hermanojuancito.blogspot.com

RAJ said...

This article can be accessed by clicking here.

The work of these men, and others more anonymous, provides an important caution to be careful not to include "the church" as a block in summaries of those behind the coup. That is far too easily used as support by those in the regime, and far too likely to alienate believers in the resistance.

RAJ said...

Apropos of this thread, see the translation of political cartoonist Allan McDonald's imagined dialogue between Jesus and Cardinal Rodriguez here.

TITO said...

RAJ, allow me to correct myself.

While researching the Cannon Law, I found out couple of things.

1. According to Cannon 401, a diocesan bishop who has completed the seventy-fifth year of age is requested to present his resignation from office to the Supreme Pontiff, who will make provision after he has examined all the circumstances. (http://www.vatican.va/archive/ENG1104/__P1E.HTM)

2. Luis Alfonso Santos is the current diocesan bishop of Santa Rosa de Copán.
(http://www.gcatholic.com/dioceses/diocese/zros2.htm#2863)

Given these finding would not be Milla but Santos running for president later on.

Doug said...

Raj -

This doesn't pertain here, but what do think of the Report that Zelaya's advisors in Honduras are telling him that he needs to come back to Honduras (for real this time) in an attempt to shake things up. I myself don't think he has much time before the conversation turns completely to the elections and the energy goes into either boycotts or a third party (or both).

RAJ said...

In the face of the continued mobilization of the resistance, which is growing, and finally getting some international attention, enough so that any human rights commission visit is likely to encounter significant evidence of resistance, I am not sure why anyone would be urging President Zelaya to enter Honduras now.

There's no reason to think that the de facto regime, or the increasingly rigid military, would openly switch sides. Indeed, even if some of the golpistas now regret what they did for pragmatic reasons, they have so polarized Honduras that they have made it difficult to see how Zelaya could safely return; I and RNS worry about the security issue.

Standing trial would indeed, however, be a powerful political act, since at least the more florid accusations-- treason, etc. (like the charges of "sedition" that the regime is trying to use against demonstrators) cannot hold up, in any trial that is under significant scrutiny. Procedurally, the failure to comply with the lower court ruling (which is the one offense that objectively can be presented as having sufficient merit for a trial) would not be likely to be successful, since Zelaya was expatriated before he could carry out the survey.

There are the other politically motivated trumped-up charges that have accumulated post-coup, however, such as drug trafficking, and here I have no doubt "evidence" will appear if needed.

So there is a lot of risk, and no clear positive I can see.

It may be time to make clear that the resistance is a resistance to unconstitutional government, and that restoral of Zelaya is not the sole or even most important goal.

In that sense, the fact that debate has now moved on to what happens next-- the campaign, the election, and beyond-- is, I think, a good sign. It shows that those mobilized by these events understand they have long-term implications.

For this reason, I think it is interesting to note that some media described the protestors as "pro-Zelaya" whereas others more accurately describe them as "anti-coup". Pro-Zelaya protestors would be well-advised to give up soon, as there is ever less of his term to complete. But for anti-coup, or better, pro-constitutional democracy demonstrators, there will never be a point when protest should be abandoned.

If I were advising President Zelaya I would suggest he focus his efforts on building a popular movement to continue in this election and after. And whether as President or, after January, as private citizen, in demanding his right to return be acknowledged and that those who deprived him of his rights be punished. That to me means continuing pressure on the international community.

Doug said...

Raj -

Thanks for the reply. My point was simply that, in the narrow sense of having Zelaya create the situation where he might return to power, it's almost now or never. I think your point about the advisability of protesters dropping that that specific demand in favor of a wider progressive, pro-democracy agenda (hope I didn't mischaracterize) is a good one.

RAJ said...

I think I would go further: I think that the moment to make the issue President Zelaya's return has passed. In this, I am sympathy with the editorial writer whose work I just posted; but also perhaps with President Zelaya himself, in the comments relayed by Arístides Mejía, saying that the issue is not Zelaya's own return to governing.

When the official campaigning begins at the end of this month, the energies of the resistance surely must go to some sort of coordinated effort geared at the national election.

Also, I am mindful of the fact that the economic damage being done by the de facto regime will not be easy to fix in the few months President Zelaya has remaining. And the framework of the San Jose Accord actually binds him to the budget, and thus the policies, the de facto regime has set in place.

I am an absolutist: since the option that has been engineered as the "compromise" would force President Zelaya into a coalition government with golpistas, I cannot see how that would be either restoral of constitutional government, or a desireable thing.

I would like to see him back for the value of affirming constitutionality. But far more important is the popular movement, which was always the one thing likely to have come out of the proposed poll.

Doug said...

Raj-

I am interested in what exactly will happen September 1. Beyond the international response to the elections is what the internal response will be. Luisa Borjas, UD Candidate for Diputada, when she was here in Chicago, was quite forceful in saying that, without Zelaya in Power and the lack of clear constitutionalty, the UD could not take up electioneering whatsoever.

Any thoughts on what might happen?

RAJ said...

Doug, it seems to me you had the best source possible: and it is voicing what I have in fact been saying consistently. Without a settled constitutional situation, and with suppression of the rights necessary for the formation of political opinion, minority parties will be at a disadvantage and should not participate in campaigning, because their mere participation would be interpreted by the de facto regime as more evidence that everything is back to normal.

The most powerful action would be to actively campaign for non-participation, which is why I think the regime has signaled that it is prepared to prosecute anyone doing so-- even though they would need, yet again, to stretch constitution and laws to do so.

But even abstaining from campaigning without strongly advocating boycott-- perhaps using time and resources to speak out on why there can be no real campaign-- could be powerful.

RAJ said...

After I wrote the previous comment I caught up with today's posting by Adrienne Pine of yet-another dispatch from her friend Oscar.

He writes:

There is strong pressure from within the front to derail the energy of the resistance in the coming elections. Figures like César Ham of the Democratic Unification party, supported by sectors of the Liberal Party, call for the formation of de facto alliance (according to electoral law it is too late for a legal one) to confront the elections. The idea of elections is condemned by the majority of people supporting the resistance. They are aware that speaking of the topic at a time when we still have not returned to constitutional order, will do nothing but legitimate a regime that we have been risking our lives to oppose for nearly two months. The call to boycott the elections should be universal in the present circumstances and whoever calls for elections will be seen by the resistance, without a doubt, as a traitor. (emphasis added)

I think that is about as clear as can be: participation in the elections legitimates the regime. Period.