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.

Tuesday, September 1, 2009

How many ways can we charge you for the same deeds? Goodbye to the "June 26" legal filing

Treason was the most serious charge brought by the Public Prosecutor in the filing dated June 26 (which many people believe was created as a post-facto justification for the raid on June 28 that ended with the expatriation of the President). As noted previously, it was a very precarious charge that would have been hard to support, based as it was on the imputation of intentions contrary to the publicly stated assertions of President Zelaya. It relied on an argument rejected by numerous legal scholars, which was that to ask people if they wanted a ballot question was the equivalent of actually putting such a question on the ballot, and that any constitutional reform would by definition include reform of the set-in-stone articles.

But that wasn't the only charge in the Public Prosecutor's overwrought complaint. So, to close out Constitutional Law month, albeit a little late, let's consider the arguments for a supposed "crime against the form of government", "abuse of authority", and "usurpation of powers". The short precis: there isn't much (any?) there there. What all the sound and fury boils down to is undisputed facts: the Zelaya administration was trying to define an acceptable procedure to ask the public a question, and its opponents kept arguing against that; and unsupported inferences about what Zelaya was thinking or really planning or would have done.

And, since the coup resulted in his removal from the country on the day of the proposed survey, it is questionable that anything he actually did rose to the level of legal action.

So consider this mainly an exercise in explaining what the June 26 charges and what the grounds cited for them were. Since nothing was able to be legally reviewed, no defense mounted, and no verdict reached, these are most useful as examples of over-reach.

Crime against the form of government

What is a "crime against the form of government"? The Public Prosecutor cited Penal Code Article 328, number 3, as establishing that "They offend against the form of government ... those who carry out acts directly oriented to achieve by force, or outside legal means, any of the following goals…3. To divest in whole or in part from the National Congress, the Executive Power, or the Supreme Court of Justice, the prerogatives and faculties that are attributed to them by the Constitution".

The Public Prosecutor's argument is that plebiscites and referenda are the prerogative of the National Congress, which, once one is approved, directs the Supreme Electoral Tribunal to undertake these votes, following Constitution Article 5 of the Constitution. Indeed, this article does define these two kinds of votes as prerogatives of the National Congress. So anyone conducting something considered a referendum or plebiscite is doing so with the goal of depriving Congress of its rights.

What is unconvincing here is the idea that every consultation of the public is by definition a referendum or plebiscite reserved to Congress. And of course, since the actual question to be asked was whether the respondents wanted to see a question on the November ballot-- which would have depended on Congress exercising its mandate to control referenda-- it is possible to argue that the survey actually reinforced the prerogatives of Congress.

The Public Prosecutor also cites Constitution Article 5 as placing the responsibility for public polls-- consultas-- uniquely in the hands of the Supreme Electoral Tribunal. The prosecutor offers as evidence for violation of this article of the constitution the publicity in various media promoting "the popular poll (consulta) or survey (encuesta) of popular opinion". He cites a March 23 executive order for what at that point was described as a popular poll, which was the first of Zelaya's deeds (hechos) that he cited; and then presidential decrees of May 26 and 29, deeds (hechos) 3 and 4 of his indictment.

Just to be clear about what this means, here are what those specific "deeds" were:

(1) on March 23, the president and his cabinet approved an announcement of a proposed popular poll on June 28, with a single question about whether the respondent would like to see a ballot question about convening a constitutional assembly be added to the November elections;

(3) on May 26 the president and cabinet issued a new order which was not published in La Gaceta until June 25, setting aside the former plan for a poll (consulta), replacing it with an opinion survey (encuesta) with the same question;

(4) on May 29, the plan for this survey was publicly announced, including the news that the Institute of Statistics and Armed Forces would support the implementation.

The Public Prosecutor leaves out of his account here that the change from the original proposal for a consulta (on March 23) to the plan for an encuesta (approved on May 26, announced on May 29, and published on June 25) was in direct response to the actions of lower courts that ruled that holding a public poll, originally to be overseen by the Supreme Electoral Tribunal, would be illegal.

Rather than proving that the president disrespected legal findings by lower courts, it would seem like this demonstrates the opposite. By changing from a consulta to an encuesta, and assigning the dissemination of results to a government statistical agency, not the electoral tribunal, the president continued to pursue the opinion of the people while avoiding violating the separation of powers.

So on the charge of crimes against the form of government, it would appear that a case could easily be made for the opposite conclusion.

Abuse of Authority

(5) in order to fulfill the order of May 27 by the court of contentious administrative law, on June 3, the justice of that court sent a communiqué to the President asking him to comply with its order;

(6) on June 18, the same court sent a second communication to the president telling him to abstain from anything tending to implement a poll or questionnaire (interrogatorio);

(7) on June 18, the court sent a third communication asking the president to respond within five days (by June 23, Tuesday of the week before the coup) describing the steps he was taking to comply with the court order, which had not been answered by June 25.

The Public Prosecutor interprets the lack of response within the time frame set by the lower court as sufficient proof of this crime. He writes that this offense is clear "since with full knowledge and will, [President Zelaya] proceeded to carry out acts contrary to the sentence dictated." This he says is a violation of Article 101 of the Jurisdiccion of the Court of Contentious-Administrative law.

Article 101 of the Jurisdiccion of the Court of Contentious-Administrative Law is part of Chapter Three, dealing with the execution of sentences of the court. It in turn references the relevant section of the Penal Code as Article 349, number 1, defining "Abuse of Authority", stating that anyone who "denies the due fulfillment of orders, sentences, provisions, resolutions, accords or decrees dictated by the judicial or administrative authorities within the limits of their respective competences and with the legal formalities".

As is so often the case in the charges made against Zelaya, this one relies on intuiting intentions and anticipating actions. Zelaya had not responded to communications from the court, and this is interpreted by the prosecutor as clear proof against him. But the actions he was enjoined from carrying out had not yet taken place when the charges were supposedly filed, on Friday June 26, and Zelaya was whisked out of the country on Sunday before the encuesta could go on.

Usurpation of functions

Finally, how are we to understand the crime of "usurpation of functions"?

This is defined in Penal Code Article 354 as when

"An official or public employee usurps the functions appropriate to another office".

The Public Prosecutor links this to Article 15, numbers 5 and 8 of the Electoral Law, which defines the attributes of the Supreme Electoral Tribunal. Number 5 simply reads "Organize, direct, administer and guard electoral processes"; number 8 "convene elections". Neither actually includes the extension of definition of "electoral processes" to include polls that is claimed by the Public Prosecutor. Without this, no usurpation of functions can be said to have taken place.

Remarkably, no specific reference is made to any deeds committed by Zelaya that would be the direct evidence for this charge. The three decrees issued by the President concerning what by June 28 was clearly defined as a non-binding survey are discussed. (These correspond to what are listed as deeds 1, 3 and 4 in the complaint, which also formed the basis for the charge of "crime against the form of government".)

Fundamentally, the issue here is whether the Executive Branch could undertake some type of public opinion survey, without the trappings of an election; or whether anything remotely like this has to be considered the same as a plebiscite or referendum, which are binding and administered formally by the electoral tribunal.

The Zelaya administration was proceeding on the basis of having transformed its proposed activity from a poll to a survey.

The Congress, shortly before the scheduled survey, tried to define every possible public opinion gathering exercise as the prerogative of the Supreme Electoral Tribunal.

The legal question of whether this definitional exercise was valid had not actually been settled. Until an actual information-gathering exercise was carried out, nothing had actually happened.

But the regime was too impatient to wait for an excuse to prosecute.


phoenixwoman said...

RAJ, I am not sure you bring out the issue on referendum vs. poll clearly enough. Article 5 of the Constitution reads: "A efecto de fortalecer y hacer funcionar la democracia participativa se instituyen como mecanismos de consulta a los ciudadanos el referéndum y el plebiscito para asuntos de importancia fundamental en la vida nacional." It puts the Congress in charge of consultas.

So, a consulta includes means that *would* have been illegal for Zelaya to use, which is presumably why he changed to an encuesta on May 26th.

Once he had made that substantial-- and reasonable-- concession, it was time for the Court to back off. I agree that Zelaya had demonstrated respect for separation of powers by this step.

I also think that because of the timing of the survey, expecting Zelaya to make formal response by June 23rd was not unreasonable. That would give the court only about a week to issue a ruling. It's puzzling that it took a month for the order to change from a consulta to an encuesta to be published. Can you add any clarity to that?

As usual, you've made a terrific post, but on these points, a little more explanation would help.

--Charles of MercuryRising

RAJ said...

For Charles, Part I: I decided to cut out a piece about the word "consulta".

"Consulta" in Article 5 actually is open to two legal interpretations. The most conservative is that every consulta is under congressional control.

The other interpretation, which is actually better founded, is that Article 5 is identifying the specific forms of polling that are reserved to congress as the plebiscite and referendum. The implementation of this specific definition of congressional control over plebiscites and referenda is then the purpose of the Ley Especial que Regula el Referéndum y el Plebiscito, which was passed on June 23 by the National Congress.

The general point is a critical one: the Constitution is interpreted via the passage of laws. Article 5 doesn't on its own define terms or otherwise clarify if it means to say that the only possible "consultas" are these two mechanisms. A number of Honduran legal scholars have argued that it is not possible for the constitution to be resd this way.

A "consulta" that would be illegal would be one that meets the definitions in the regulatory law. Which did not exist until Tuesday before the scheduled poll. One of the key features of this late-breaking law was a requirement that no consulta of any kind-- not just plebiscites and referenda-- could be held within 180 days of a scheduled election. That suddenly made the already-scheduled June 28 poll illegal. There was no provision for grandfathering this in, needless to say, since it was transparent that the whole exercise of finally implementing a law on these forms of consultation, which constitional amendment in 2004 called for implementing as a means to increase participatory citizenship, was intended to block any consultation whatsoever, arguably not what the law of citizen participation was intended to accomplish.

RAJ said...

For Charles, Part II:

We both agree that Zelaya's change from consulta-- even though the word cannot be taken automatically to mean plebiscite or referendum-- and use of the more opinion-oriented encuesta was intended to conform to the requirement that he not intrude on congressional territory.

That decision was made earlier but not published until just before the scheduled June 28 event. The interpretation made of this by coup apologists is that there was a nefarious plan to change the question at the last minute. Since that did not happen when the order was published in the Gaceta, I think the simpler explanation is that they expected the publication-- an act, not an intention-- to trigger a legal challenge, and they wanted to leave too little time for the court to hear a challenge. That may seem like dirty pool, but it is politics.

What no one expected was the over-the-top reaction that happened. Legal charges, more demands in Congress, more drama, yes.

I should clarify that the court of administrative-contentious law had issued its (administrative) ruling. What it gave Zelaya until June 23 to do was confirm how he was going to comply with it. Zelaya's government had tried to appeal the ruling with no success. This lower court was in a position to impose sanctions for this administrative offense, but the sanctions were fairly mild and one can see the Zelaya government ignoring the requests as a kind of immense game of chicken. Again, not an unknown political or bureaucratic strategy. "Oh, sorry we are late with our filing where do we pay the fine?"

In this entire confrontation, the thing that remains fascinating is how deeply invested both sides got in a struggle over a completely symbolic action (a non-binding poll) which was likely to face great obstacles even if passed, and was (by most social science measures) unlikely to pass. Both sides dug in their heels.

You can either take the Hillary Clinton approach and chide Zelaya for starting this (although it would be nice if she were a more even-handed parent when she takes that posture, and she also let the other side know they were out of line). Or, you can consider why this symbolic gesture was important enough for President Zelaya and his cabinet to knowingly take the risk of being prosecuted. Which I think they clearly did expect might happen.

Maybe they all thought it mattered in ways that went beyond mere political or governmental effects.

phoenixwoman said...

Thanks for adding those points, RAJ. I think that these are critical elements to bring forward, elements that are essential to properly understanding the dispute between Zelaya and the rest of the Honduran government. I don't think that there's any point on which we disagree except perhaps on the translation of the word "consulta" as a "poll." The word "consulta" has historical resonances relating to sovereignty, while "encuesta" has a closer affinity to the word "inquest" with its overtones of scientific investigation. English tends to blur the meanings between surveying opinion and electing candidates or enacting referenda. One can, for example, say that a candidate "polled" 55% and mean that he was elected with that percentage of the votes or that a survey indicated that he would receive that percentage of votes. But Spanish seems to me to be more fussy. At least as of my 1961 Velasquez, there is no single word that translates as "poll" in the sense of surveying opinion and "encuesta" and "consulta" have well-differentiated meanings.

That's a fascinating interpretation that the delay in publishing the order may have been to deny the Congress/Supreme Court the ability to find other reasons to cavil. It's ironic that it should have given the opposition room in which to stir up a tempest. But it does seem that Zelaya has consistently been much too optimistic about the people with whom he was dealing.


RAJ said...

Actually, I agree on the lack of a word clearly equivalent to poll, and also on the well-differentiated meanings of encuesta and consulta.

The point I am trying to make-- badly due to being preoccupied with a turn for the worse for colleagues in Honduras-- is that the coup apologists have tried to use Article 5 to claim that the only forms of "consulta" are the plebiscite and referendum. But it actually says that these are the mechanisms of "consulta" that are specific to the Congress. A less perverse reading, I think, is that Article 5 is concerned with reserving the differentiated and well defined forms of voting to the Congress.

It was to regulate the plebiscite and referendum that the Congress passed a law on June 23. Not to regulate the meaning of the word "consulta".

Honduran legal scholars discussed in blog entries here previously have, among many other things, argued explicitly that it was problematic for Congress to try to define the plebiscite and referendum as identical to, and thus the only meanings of, "consulta".

Raphael Neves said...

Dear RAJ,

Thanks for this post. It was the most clear explanation about what happened I've found. In Brazilian newspapers, people make no distinction and call Zelaya's initiative a plebiscite. Even worse, people simply assume it was a plebiscite which could, in fact, allow him to be reelected.

I would like to reproduce part of your post in my own blog. Is that fine for you? I think that because Brazil is somehow involved in this process, is our responsibility to get to know the facts.

In solidarity with the Honduran people,
Raphael Neves

RAJ said...

Always fine to reproduce any content; please do always include a link back, if possible, and attribution to this blog.

While I have not figured out how to post the Creative Commons license yet, all content is available under Creative Commons licensing, providing that attribution is maintained and the content is not commercialized.