In another commentary on November 5 in La Tribuna titled "Mas Consultas" ("More consultations") Orellana rejects other consultations that members of the Congress have been proposing should happen before they make their decision, and for which they have now said they will allow until the 17th of November. It is worth reading Orellana's entire opinion piece for what it says about legal flaws in the Tegucigalpa Accord and its attempted implementation:
The San Jose-Tegucigalpa Accord proposes that there be many consultations in relation to the restitution of constitutional order.
The Supreme Court of Justice is mentioned, a question that was undertaken in an earlier article. It doesn't mention the rest, but some have insisted in pointing to the Public Prosecutor and the Attorney General of the Republic.
The Public Prosecutor was created to assume the representation of society in the fight against impunity. He should act, in consequence, when some crime has been committed, to identify the responsible party and to accuse him criminally in the Courts of the Republic, with the goal that he should be condemned with a sentence based in the Law. His functions are exercised in a strictly penal order.
What would be, then, the point of consulting him about the Accord? About what extremes would the Public Prosecutor pronounce? For his competence, he only could give an opinion about penal matters, but in the abstract, because it is prohibited to disseminate the private matters of the topics that he knows, whether in the phase of investigation or those before the Courts. So that it would not be legal to solicit a report from him about the cases that he has brought against President Zelaya.
The Accord, on the other hand, is of a political nature. And the only thing that would have justified consultation would have been the inclusion of Amnesty, but both parties renounced that.
In conclusion, the Attorney's office has nothing to do with the Accord about which some would like it to make a pronouncement.
The Attorney General of the Republic, for his part, commands, in conformity with the Constitution, the legal representation of the State. To this institution belongs, in the name of the State, buying or selling of immovable property, to sue or to defend against judicial suits and to appear in all matters that the law authorizes to guard the interests of the State.
The Accord does not involve any patrimonial matter of the State, directly or indirectly. Even less does it refer to judicial themes. There does not exist any matter about which the Attorney General could express himself to elucidate for those who have to decide about the restitution of constitutional order.
The Accord signals that the conflict, by its nature strictly political, can only be concluded by the National Congress, the only exclusively political organ, taking the situation of the Executive power back to the situation in which it was encountered before the 28th of June.
The message of the totality of the members of the San Jose-Tegucigalpa Commission is very clear: propose that the National Congress rescinds the Legislative Decree issued the 28th by means of which President Zelaya was unconstitutionally fired, so that he can continue his constitutional mandate until the 27th of January of 2010, the date on which the new President of Honduras will take possession, product of the elections that will be carried out the 29th of November of this year.
5 comments:
I think the real problem is that everybody is treating what is happening as if it is real and legal
while it is crystal clear that it is a farce.
RAJ has once said that restoring Zelaya should not have been the priority of the resistance but rather how to get Micheletti out
The point is all what is happening now is a big farce
What formal charges, if any, have actually been laid against Zelaya? The charges against him that I heard were so laughable that I can't believe that an attorney general would actually formally make them.
--Charles
Edmundo Orellana has been a consistent voice trying, as a scholar of the law, to deconstruct the attempt to lay a thin veneer of legality on the coup and its aftermath. In the process, while what has been promoted by international agencies is, as Ossama says, farcical, Orellana has begun to sketch out the real extent of the disfunctionality of Honduran governmental institutions. His is a powerful voice concluding that the only solution to the problems Honduras faces is constitutional reform.
As for the charges lodged against Zelaya: the only actual indictment that anyone has seen is the one lodged by the Public Prosecutor, dated June 26, which we have discussed at length here; the tone of the document is hard to convey, but it comes across as hysterical, interpreting what Orellana first pointed out are strictly administrative actions by Zelaya as "treason".
There is, of course, the claim after the coup that Zelaya would face 18 additional charges if he returned. But nothing I have seen actually suggests those were real charges. Some overlap in exaggerated tone and legal register with the June 26 document; but others are just silly (displaying a child with H1N1 publicly, for example).
The interesting thing about Orellana's editorials is that he properly pointed out that the Supreme Court has cases in front of it dealing with the legality of the coup; so for it to express an opinion would definitely be prejudicial. Thus, the original reports on Monday were entirely expected; all that was unexpected was that they cited the cases brought against the coup, not the June 26 charges that will be most directly prejudiced by any opinion they pronounce.
Talking about the objectivity of the Honduran Supreme Court is a joke. They are direct participants in and perpetrators of a blatant act of high treason. Will expressing an opinion in advance of a ruling "prejudice" them? It's like worrying about whether someone in the Vichy regime might have been compromised by unduly close personal ties to a leading Nazi, thus “biasing” him in favor of Nazi positions.
What we have here is raw power. Nothing less than a new constitution which abolishes the offices currently held by traitors, or allows them to be removed through a speedy, orderly, legal process, can possibly restore legitimacy in Honduras. Elections--even fair ones--can no longer be enough.
I think this is essentially Orellana's point: that the Supreme Court is supposed to conform to norms that it in fact has left behind, and that those moves against the norms have robbed it of authority, which a court derives from being unprejudiced.
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