Giving Constitutional Research a Bad Name

US congressman Aaron Schock (Republican from Illinois) commissioned a research report that has excited immense interest in the pro-coup Honduran media. So far, in English mainstream media, it appears to have been given the cold shoulder it deserves. But make no mistake, bad research is consequential, and the right-wing blogs are alive with the story as well.

Written by someone identified only as a "Senior Foreign Law Specialist" at the Library of Congress, Norma C. Gutierrez, the report makes an argument that the removal of President Zelaya was constitutional. In this, her report would contradict numerous constitutional law professors in Honduras, Spain, and the United States. The references cited in the report consist almost entirely of citations of the Honduran constitution, or of documents posted online by the Honduran Supreme Court.

A notable exception, and key to understanding the basis of her unique conclusions, are references to phone calls with Guillermo Pérez-Cadalso, described as "a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations." Sounds impressive, right? But wait, who is this, anyway?

Well, he was part of the pro-coup delegation that came to testify before Congress in early July. This was the lobbying group put together by Lanny Davis. His service in the executive branch came during the administration of Ricardo Maduro, one of the former Honduran presidents implicated in the carrying out of the coup. Mr. Pérez-Cadalso is #34 on the widely circulated list These are the coup leaders: They will be judged.

So, hardly a disinterested source.

So let me match Ms. Gutierrez expert-for-expert. Mr. Pérez-Cadalso's testimony is countered by the opinions of Angel Edmundo Orellana Mercado, who was until June 24 a cabinet Secretary in the Zelaya government, resigning over his disagreement with President Zelaya's attempt to remove General Vasquez Velasquez from his position as head of the Joint Chiefs of Staff. Formally a member of Congress since he resigned from the Zelaya government, he formally refused to attend sessions of Congress following the June 28 coup, offering a powerful critique of precisely the same "constitutional" arguments and processes she, relying on a known golpista, accepts. Orellana's editorials specifically rebut the constitutional analysis offered by Gutierrez.

Orellana, in addition to his most recent service in government, has an illustrious history as a Professor of Constitutional Law and a member of various Honduran governments. He holds a PhD in law, and was from 1976 a Professor of Law at the National University of Honduras (UNAH). His government service began in 1982, when constitutionality was restored to Honduras; was Magistrate in the Court of Appeals of "lo Contencioso Administrativo" (the courts that ruled against Zelaya in his attempts to hold a poll) from 1988-1994; was the Attorney General of the country from 1994 to 1999; served as Honduras' ambassador to the UN, was a cabinet minister in multiple administrations, is the recipient of many honors, and the author of legal texts as well as research articles.

And Orellana-- like his colleague on the law faculty at UNAH, Efrain Moncada Silva, and Francisco Palacios Romeo, Professor of Constitutional Law at the Universidad de Zaragoza, Spain, not to mention Professor Doug Cassell of the Law School of Notre Dame, whose invited analysis published by the American Society of International Law is considered the authoritative English-language study of the constitutional issues-- does not agree with Gutierrez or her single Honduran legal advisor.

Why not? well, let's begin with the fact that Ms. Gutierrez appears willing to ignore major points of law. She admits it was unconstitutional to expatriate President Zelaya. But she provides a spurious rationale for the Supreme Court's enlisting the Armed Forces to carry out the raid on President Zelaya in the early hours of Sunday, June 28.

On page 2, she says one of the existing constitutional questions is whether the Supreme Court had the authority to order "the public forces (fuerza pública) to carry out an arrest warrant".

That is not the legal issue. The issue is, did they have the power to ask the Armed Forces (military) to carry out such a raid? The original 1982 Honduran Constitution included all security personnel under the Armed Forces, and made no distinctions between the military and the police, at that time a branch of the Armed Forces called the Fuerza de Seguridad Pública (FUSEP). Article 306 of the current Constitution authorizes the judiciary to call on the Fuerza Pública (capitalized, not lower case) to enforce legal decisions, and failing that, the citizenry. What it does not do is authorize the Armed Forces, from which the police were separated in order to demilitarize civilian policing, under special legislation ratified in 1996. Article 293 of the current Constitution defines as proper duties of the civilian National Police the

ejecutar las resoluciones, disposiciones, mandatos y decisiones legales de las autoridades y funcionarios públicos, todo con estricto respeto a los derechos humanos.

to execute the resolutions, dispositions, mandates and legal decisions of the public officials and authorities, all with strict respect to human rights

The two instances of the term "fuerza pública" in the present constitution, including that cited by Ms. Gutierrez, were retained from the original 1982 Constitution. The multiple revisions of the Constitution have left many such dangling phrases. But the revision of the Constitution that introduced the present Article 293 makes it clear what public forces are supposed to enforce judicial rulings. Re-militarizing a demilitarized branch of public security forces is one of the main acts by the de facto regime that Honduran analysts point to as evidence that this was, indeed, a military coup.

Ms. Gutierrez does acknowledge that the Supreme Court had started the legally mandated process of investigation of the charges brought by the Public Prosecutor, and that this process was truncated by the unconstitutional expatriation of President Zelaya. But she seems incapable of acknowledging that this means there was in fact no determination of guilt that might serve as a legal basis for any move to remove the president from office.

She manages to avoid the thoroughly debunked "Article 239" argument which the de facto regime adopted days after the coup.

Instead, she comes up with a breathtaking, novel new theory of Honduran law: Congress has a unilateral right to interpret the Constitution; so they "interpreted" their power to "disapprove" of presidential actions, under Article 205, section 20, as including an ability to remove the president. Powerful disapproval there.

Apparently aware of the fact that "throw out" is not the most obvious interpretation of "disapprove", Ms. Gutierrez draws on an equally novel interpretation of Article 205, section 10. This section itself has an interesting history: not present in the original constitution, it was added to the Constitution in 1983-1984, giving the Congress the right to interpret not just the laws it passed, but the very Constitution itself. (This is exemplary of the concentration of authority that has made the National Congress in Honduras more powerful than the separation of powers of the original three branch model.)

But the interesting thing is, as Ms. Gutierrez notes, the Honduran Congress did not in fact make the argument she is advancing now. It did not ever, in its own declaration, say that the reason it could remove the President from office was that this was a form of "disapproval".

So where does her novel theory come from? Quoting from page 8:

An analysis of the facts of the case and the aforementioned constitutional provisions leads one to the conclusion that the National Congress made use of its constitutional prerogative to interpret the Constitution and interpreted the word "disapprove" to include also the removal from office.

This section ends with a footnote reference, footnote 40, which reads in full:

This line of analysis was confirmed in an August 3, 2009, telephone interview with Mr. Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations.

Confirmed?! Meaning what? that he agreed this was as good a post-facto rationalization as any other?

If all her legal "research" is this good, one can question whether any of it is reliable.

But there is more. In a document that tries to hide its advocacy under a veneer of reviewing simple facts, there are some extraordinary lapses. Ms. Gutierrez repeats the then already widely debunked claim that the vote to remove President Zelaya was unanimous (p. 8). In doing so, she footnotes the supposed "resignation letter", originally furnished by the National Congress as the legal basis for proceeding to the line of constitutional succession. Her footnote is scandalous in both its ignorance and its use of a golpista smear that even the worst US congressional zealot has not attempted to use, to my knowledge. Her footnote (no. 43) says

It is believed by some in Honduras that Zelaya signed the letter on June 24, before his arrest, to make use of it after the referendum, when presumably the National Constituent Assembly was going to be initiated, on June 29, because Zelaya anticipated that he would be elected President of the Assembly.

It is believed by a lot more in Honduras and outside that the backdated letter was written to be used by the golpistas earlier in the week, when they originally intended to carry out their coup. The actual content of the letter doesn't accord with the interpretation offered either: the letter purported to offer the resignation not only of the President, but of his entire Cabinet.

What Ms. Gutierrez reproduces here is part of the paranoid rumor-mongering through which the Honduran people were induced to believe that President Zelaya had a secret plan to suspend the Constitution June 29 and unilaterally take over the country.

So, what is her source for this claim? You guessed it: the trusted Mr. Pérez-Cadalso.

And so who is Ms. Gutierrez, and other than her reliance on a member of the coup faction, what is her supposed expertise? According to the Law Library of the Library of Congress, employees with her title are "a diverse group of foreign-trained attorneys". Ms. Gutierrez is listed as having jurisdiction over issues related to Mexico and Nicaragua.

It is unclear where Ms. Gutierrez received her legal training; but her legal advice came from a poisoned well.