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.