PERMANENTLY REPOSTED: Inaccurate arguments about constitutional and legal issues persist

[NOTE: comments on this post originally made in October asked us to try to find a way to keep it at the top of the blog. We found a somewhat odd way to achieve that goal that deferred it to December. We now have solved the puzzle the way it should have been originally-- RAJ]

The same bad arguments continue to be offered by readers of this blog, so we decided it is worth reviewing what is and is not true about the constitutionality of the removal from office of President Zelaya June 28. We have tried to link back to earlier blog posts, many of them reporting the opinions of Honduran law professors, Edmundo Orellana, Efrain Moncada, Ramon Enrique Barrios, and their Spanish counterpart, Francisco Palacios Romeo.

As its beginning point, this post specifically responds to a comment left by someone called "Admin" on a previous post, "Failure and a Public Proposal". Admin repeats every one of the major pro-coup arguments, all of which have been disproven by legal analyses now so widely available that their persistence in Honduras is mainly a reminder of how successful the propaganda has been in Honduras.

Admin wrote:

The problem IS judicial not political. [The} Supreme Court of Justice has fired Zelaya due to he broke the constitution rules. This is the problem.

Wrong. The Supreme Court never ruled on any of the charges filed by the Public Prosecutor on June 26. There is a persistent misunderstanding of the long documents the Supreme Court posted, which holds that they include a statement removing him from office. They don't; what they do say is that, since the Congress has removed him from office, he is now a common citizen, so the charges filed against him would no longer be heard by the Supreme Court (which only was hearing the case because it has jurisdiction over high government officials).

Admin then rehearses what he/she understands are the basic constitutional issues:

1- Try to change the constitution to implement the reelection is PROHIBIT[ed] - (see article 374).

Yes. Article 374 prohibits changes to, or a sitting government official even suggesting changes to, presidential terms. But President Zelaya never made any such suggestion. What happens is that people who are supporting the coup claim either that the only reason to propose a constitutional assembly was for that purpose (which ignores the issues the Zelaya government actually proposed needed to be addressed) or that proposing a constitutional assembly would automatically put Article 374 under discussion. But in either case, the claim is that a possible outcome, denied by President Zelaya, was the same as actually committing a violation. The Honduran Constitution guarantees freedom of thought, and guarantees that you will be prosecuted only for crimes you commit.

Admin continues

2 - To do "poll opinion" about reelection is PROHIBIT[ed]. (see article 5 + article 374 - you must read both articles together in order to understand)

Yes, you need to read each article of the Constitution, and not pick and choose-- which means you cannot ignore the many violations of due process, and such violations as expatriating the President, which is against the constitution. But reading Articles 5 and 374 doesn't get us anywhere here. The encuesta was not about re-election. It asked only whether people were for or against having a question on the November ballot about whether people were in favor of having a constituent assembly. Not the same thing at all. So Article 374 is irrelevant.

Article 5 deals with the need for citizen participation to be incorporated in government. It regulates plebiscites and referenda. By the time the June 28 encuesta was in place, it no longer had any characteristics of a referendum or a plebiscite. It was a non-binding opinion poll. There is a dispute about whether opinion polls could take place at all. The decisions by a lower court, which the Supreme Court refused to review, did tell the Zelaya administration not to do anything to ask citizen opinion, not even to think about anything of the kind. Whether that really was a decision whose violation could be prosecuted as a criminal matter (rather than an administrative matter) is something we will never know, because the actual encuesta was cut off by the coup d'etat. What is clear is that the poll on June 28 would not have been carried out with the support of the Armed Forces, nor under the supervision of the National Election Tribunal, and therefore was not the kind of process called for under Article 5 for referenda or plebiscites.

3 - Who (the president) [tries] to change the constitution in order to implement the reelection LOST the mandate IMMEDIATELY (see article 239).

Point number 1: Article 239 was raised as a possible foundation for the coup d'etat days after the coup itself, not as part of the original argument made by Congress. Point number 2: President Zelaya was not proposing modifying the constitution to allow re-election. No evidence of any kind supports this claim, which is the product of the paranoia of his opponents. Point number 3: Honduran legal scholars are unanimous that Article 239 does not apply, and that it could not come into effect "automatically" or immediately without violating due process (everyone has the right to be presumed innocent, and a right to due process). Article 239 needs to be interpreted in the context of the rights and guaranties that the Constitution establishes, among which are the right of liberty (articles 61 and 69), the right to defend oneself (article 82), the presumption of innocence (article 89) and due process (articles 92 and 94). The Article 239 proposal has been so thoroughly debunked that it is mainly sad that it persists.

4 - Who (the president) tries to change the constitution in order to implement the reelection commits crime - [TREASON]. (see article 4)

Article 4 is indeed as noted. But is irrelevant: President Zelaya had not tried to change the constitution to implement re-election. He had not even tried to change the constitution. He was trying to take a public opinion poll.

Up to here, Admin is simply following the line of coup apologists, who presume President Zelaya's hidden intentions were to implement re-election (or suspend the government and stay in power). His next points seem to be responsive to my comments here:

5 - The armed forces has the obligation to guard the constitution. So, that is the reason which Supreme Court order the armed forces to capture Zelaya. Only the armed forces can capture who try to broke the constitution rules. (see article 272)

This is not what Article 272 says. Here it is in full:

Article 272: The Armed Forces of Honduras, are a National Institution of permanent character, essentially professional, apolitical, obedient, and non-deliberative.



They are constituted to defend the territorial integrity and sovereignty of the Republic, to maintain the peace, the public order, and the rule of the Constitution, the principles of free suffrage and the alternation in the exercise of the Presidency of the Republic.



They cooperate with the National Police in the Conservation of the public order.



In order to guarantee the free exercise of suffrage, the custody, transport, and guarding of electoral materials and other aspects of the security of the process, the President of the Republic shall put the Armed Forces at the disposition of the National Election Tribunal, from one month before the elections, until the declaration of the outcome of the same.

Pro-coup apologists ignore the abundant documentation provided by the Supreme Court itself, which shows that the Armed Forces were given orders to carry out the raid on President Zelaya because the Public Prosecutor expressed a lack of faith in the National Police, whose role detaining a high government official to take his testimony should have been. The authority for this is delegated to the National Police in Article 293, which defines that body as

a permanent professional institution of the State, apolitical in the sense of party alignment, of a purely civil nature, charged with watching over the conservation of public order, the prevention, control, and combat of crime; to protect the security of persons and their goods; to execute resolutions, dispositions, mandates and legal decisions of the authorities and public functionaries, all with strict respect to human rights.

The National Police role was set aside by the Supreme Court. There is no special circumstance clause that allows that, no matter how many times pro-coup apologists say that. The reason for this substitution was that the Public Prosecutor didn't trust the Police to carry out what in effect were illegal procedures. But he knew the Armed Forces would do it.

Admin's final point clearly takes issue with my postings here, because he tries to argue that the early morning raid on President Zelaya's house was legal:

6 - The last observation - to enter at home on the first hour of the wee is LEGAL. It is a exception of Honduras Constitution. In URGENTLY case is possible to capture a person in home on wee (this happened with Zelaya) - (see article 99)

OK, here's Article 99 (emphasis added)

The home is inviolable. No entry or registry can be verified without the consent of the person that lives there or the resolution of a competent authority. Nonetheless, in an urgent case, it can be raided, to impede the commission or impunity of crimes or to avoid grave damage to person or property.

Except in cases of urgency, raids on the domicile cannot be approved from six in the evening to six in the morning, without incurring legal responsibility.

The Law will determine the requisites and formalities so that there can be entry, registry, o raid, as well as the responsibilities that whoever carries it out could incur.

Here, the selective reading principle is at work. Entry is allowed in urgent cases; but these are defined specifically: to impede the commission or impunity of crimes, or to avoid grave damages to persons and property. And only in cases of urgency can raids be approved for before 6 AM.

None of this was a factor in the June 28 raid on President Zelaya. How do I know? In conformity with that last clause that says "the Law will determine the requisties and formalities" for an exception to the inviolability, the Supreme Court orders dated June 26 defined specifically what was approved. Those orders specified a raid after 6 AM, not before. The rationale for the raid was the claim by the Public Prosecutor that President Zelaya was a flight risk. The defined goal of the raid was to detain him and take his statement on the charges against him. There is close to universal agreement that the Armed Forces exceeded those orders. There is universal agreement that expatriation is unconstitutional, and it was certainly not authorized by the Supreme Court.

Admin ends by warning us to consult the most up to date text of the Constitution. We do. But what we have to urge him, and others who accept these facile arguments, to do, is that they read more than isolated constitutional articles. The links to blog postings relevant to the points made above will provide a starting point for Admin, or anyone else interested in learning more about the real legal and constitutional issues.