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, October 6, 2009

Micheletti Fails to Publish Recension

PCM-M-016-2009 was rescinded, but Micheletti has yet to get it published in La Gaceta, thus it remains in effect, selectively being enforced even though Congress refused to approve of it. Deliberate delay or incompetence?

6 comments:

Nell said...

PCM-M-016-2009 was rescinded, but Micheletti has yet to get it published in La Gaceta

What a surprise. It took almost a week from issuance to publication, so I'd expect the same wrt the repeal.

phoenixwoman said...

RNS, what does Honduran law say about the legality of an Executive decree that has not been approved by the Legislature? Midway through last week, Micheletti said he would see about suspending putting it into effect, implying that it was not in effect. Now he's stalling about rescinding it. But is it legally even in existence?

--Charles

phoenixwoman said...

You'll want to start your day with a brisk cup of Eat This, Golpistas!

It seems that the Honduran people actually don't want a coup! Imagine that!

--Charles

RAJ said...

Pinch-hitting, since this one is up my alley:

Article 187 of the Honduran Constitution establishes the conditions for suspending civil rights in case of

invasion of the national territory, grave disturbance of the peace, epidemic or any other general calamity, by the President of the Republic, by agreement of the Council of Ministers, by means of a Decreto that shall contain:

1. The motives that justify it;
2. The civil right or rights that are restricted;
3. The territory that will be affected by the restriction; and,
4. The time that it will last.


So, once Micheletti and his ministers agreed, there was a suspension of liberties-- except for the glaring fact that he is not the real constitutional President.

The same article, section 4, immediately goes on to say that

In addition, in the same Decreto the National Congress will be convened so that within 30 days, they will consider the said Decreto and ratify it, modify it, or disapprove of it.

In the case where it should be already meeting, it will consider the Decreto immediately.


The Constitution is silent on what happens if the Congress, being in session (as is the case now), refuses to consider a Decreto of state of exception passed by the President and Council of Ministers. That does not seem to be either ratifying, modifying, or disapproving of it (the three original choices the Congress has within the first 30 days). The impression from the press coverage is that Congress was saying to Micheletti that if they considered it, they would reject it (disapprove it), which would result in it being vacated.

The implication: Congress did not "immediately" consider the Decreto; has not ratified it; therefore it never really was legal. There is nothing in the Constitution suggesting that Congress needs to approve a proposed suspension of such a declaration; on the contrary, if the conditions cited cease, this Article continues,

it will cease to have effect, and in this case, any citizen has the right to insist on its review.

So, while Micheletti seems to be confused, the citizenry could take their demands to the courts.

The decree of a suspension of civil liberties, according to Article 188, brings into play the "Ley de Estado de Sitio". The sole Law I have found with that name dates from 1921.

The 1921 version actually is quite precise in its definitions of which civil liberties can be suspended under which conditions. It also defines the authority to end a State of Siege as inhering in the governmental body that originally declared it (at that time, the Legislature was charged with acting first, and if not, the Executive branch including the Council of Ministers. The 1982 Constitution requires both bodies to act, first the Executive, then the Legislature).

In the 1921 Law of State of Siege, if the Congress was not available to lift a State of Siege it had called, the Executive was empowered to do so.

Lest we think that the habitual practice of the branch of government that declared a state of exception being empowered to suspend it disappeared from Honduras long ago, I would point to Decreto 23 of 1963, through which General Oswaldo Lopez Arrellano lifted the Estado de Sitio that the Armed Forces declared (without any Constitutional basis) as part of the coup that removed President Ramon Villeda Morales from office. It is surreal to see the forms of constitutionality being used by the Armed Forces as if they were a fourth branch of government. At that, the 1963 Armed Forces end up looking like more competent constitutional governors that "President" Micheletti.

It must be hard for Micheletti and the Congress to try to keep up with the illegal actions they are undertaking every day. No wonder he wants someone else to tell him whether or not the decree is in force. Maybe he should ask General Vasquez.

RAJ said...

Pinch-hitting, since this one is up my alley:

Article 187 of the Honduran Constitution establishes the conditions for suspending civil rights in case of

invasion of the national territory, grave disturbance of the peace, epidemic or any other general calamity, by the President of the Republic, by agreement of the Council of Ministers, by means of a Decreto that shall contain:

1. The motives that justify it;
2. The civil right or rights that are restricted;
3. The territory that will be affected by the restriction; and,
4. The time that it will last.


So, once Micheletti and his ministers agreed, there was a suspension of liberties-- except for the glaring fact that he is not the real constitutional President.

The same article, section 4, immediately goes on to say that

In addition, in the same Decreto the National Congress will be convened so that within 30 days, they will consider the said Decreto and ratify it, modify it, or disapprove of it.

In the case where it should be already meeting, it will consider the Decreto immediately.


The Constitution is silent on what happens if the Congress, being in session (as is the case now), refuses to consider a Decreto of state of exception passed by the President and Council of Ministers. That does not seem to be either ratifying, modifying, or disapproving of it (the three original choices the Congress has within the first 30 days). The impression from the press coverage is that Congress was saying to Micheletti that if they considered it, they would reject it (disapprove it), which would result in it being vacated.

The implication: Congress did not "immediately" consider the Decreto; has not ratified it; therefore it never really was legal. There is nothing in the Constitution suggesting that Congress needs to approve a proposed suspension of such a declaration; on the contrary, if the conditions cited cease, this Article continues,

it will cease to have effect, and in this case, any citizen has the right to insist on its review.

So, while Micheletti seems to be confused, the citizenry could take their demands to the courts.

The decree of a suspension of civil liberties, according to Article 188, brings into play the "Ley de Estado de Sitio". The sole Law I have found with that name dates from 1921.

The 1921 version actually is quite precise in its definitions of which civil liberties can be suspended under which conditions. It also defines the authority to end a State of Siege as inhering in the governmental body that originally declared it (at that time, the Legislature was charged with acting first, and if not, the Executive branch including the Council of Ministers. The 1982 Constitution requires both bodies to act, first the Executive, then the Legislature).

In the 1921 Law of State of Siege, if the Congress was not available to lift a State of Siege it had called, the Executive was empowered to do so.

Lest we think that the habitual practice of the branch of government that declared a state of exception being empowered to suspend it disappeared from Honduras long ago, I would point to Decreto 23 of 1963, through which General Oswaldo Lopez Arrellano lifted the Estado de Sitio that the Armed Forces declared (without any Constitutional basis) as part of the coup that removed President Ramon Villeda Morales from office. It is surreal to see the forms of constitutionality being used by the Armed Forces as if they were a fourth branch of government. At that, the 1963 Armed Forces end up looking like more competent constitutional governors that "President" Micheletti.

It must be hard for Micheletti and the Congress to try to keep up with the illegal actions they are undertaking every day. No wonder he wants someone else to tell him whether or not the decree is in force. Maybe he should ask General Vasquez.

phoenixwoman said...

Thanks for the reply, RAJ.

The legality of the decree is essential to the question of whether Radio Globo and Channel 36 get compensated for the raid on their quarters. If the decree was not actually in effect at the time of the raid or was clearly unconstitutional, I don't see how a court could deny them compensation. Of course, the courts have less shame than one would wish.

--Charles