tag:blogger.com,1999:blog-2341954168256070610.post6496672119643891055..comments2023-09-12T01:15:08.356-07:00Comments on Honduras Coup 2009: Congress versus the Supreme Court (a long story)RAJhttp://www.blogger.com/profile/00097415587406899236noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-2341954168256070610.post-51884534096708249102009-10-06T11:16:48.674-07:002009-10-06T11:16:48.674-07:00As requested, your comment here.
But you do not r...As requested, your comment here.<br /><br />But you do not remove the "coup de grace" from the arguments (plural) against the Law Library report. <br /><br />Since the Congress did not in fact cite Article 205, section 10 as the basis for its actions on June 28, the Law Library report was fatally flawed in its proposal (an interpretation of Congressional action, an inference) that they used a presumed power of interpretation to extend the meaning of the word "disapprove".<br /><br />That is the coup de grace: the Law Library researcher made up a theory. It is grounded not in facts, but in an interpretation.<br /><br />And that interpretation was, in her own words "confirmed" (counter-factually) by the personal communication from a tainted source, an active apologist for the de facto regime. No scholarly argument, and as I said originally, no paper for any course I teach, would be acceptable based on a personal communication of this sort.<br /><br />Finally, I reiterate: there is a rich body of work by constitutional legal scholars in Spain, Honduras, and the US, and it is all unanimous: there is no constitutional justification for the actions of Congress on June 28. <br /><br />For a legal researcher to reach a contrary conclusion based solely on proposing a novel interpretation of a contested claim to extend congressional powers, supported only by a personal communication from a single source, calls into question the entire report.<br /><br />Beyond these conclusions, I will reiterate as well, contrary to your argument here and elsewhere, that the Supreme Court in its May 2003 decision asserted a specific argument against congressional claims of a general power to interpret the constitution. Unconstitutional legislation may be acted upon, but that doesn't mean it is constitutional. Trying to ignore the temporal dimension to the interpretation of law is like trying to stop rivers from flowing. There is no evidence that the Congress has, since 2003, actually claimed to be generally interpreting the Constitution, and it certainly did not do so on June 28. But there is abundant evidence in the form of the Supreme Court case of May 2003 that the Supreme Court does not consider such a claim valid.RAJhttps://www.blogger.com/profile/00097415587406899236noreply@blogger.comtag:blogger.com,1999:blog-2341954168256070610.post-69656730713274457662009-10-06T10:17:25.414-07:002009-10-06T10:17:25.414-07:00This is my last reply, and I would appreciate if y...This is my last reply, and I would appreciate if you publish it this time. Since this is a comment, I simply focus on the claim that the article ratified a second time in 2004 was unconstitutional based on precedent from 2003. (For full analysis of what you write in your final post, please see http://hondurasafterjune28.blogspot.com/)<br /><br />Yes, I do understand how precedents work. And I do know how amendments are abolished – by the Supreme Court, not by people's legal analyses. It is rather ironic that you uphold the role of the Supreme Court as the supreme arbiter of justice while stating that a new article is made illegal simply because some claim its gist is so similar to an article that has been deemed illegal. <br /><br />That’s not how legal systems work – only when the Supreme Court has decided, based on their earlier decision, that the amendment ratified for a second time in 2004 is unconstitutional is it in fact unconstitutional!<br /><br />The only body that can determine whether a “norm” is unconstitutional based on precedents is the Supreme Court. <br /><br />Maybe the amendment that was ratified for the second time in 2004 would have been judged unconstitutional. Maybe it was so similar to what the Supreme Court had already ruled against, and that no technical changes could legalise it. That’s for the Supreme Court to decide. But it never did. And unless it does so it remains constitutional since it is produced by the legislative power and published accordingly.<br /><br />Nobody has brought up a claim against article 205, section 10, as you said would lead to an opportunity to declare it unconstitutional finally – as long as nobody does that, and the Supreme Court has not ruled that the ruling from 2003 still applies (or declaring it unconstitutional in an entirely new ruling), it is still constitutional. <br /><br />There is only one institution that can decide whether a judicial precedent applies to a new article - the Supreme Court.<br /><br />2. As I have pointed out several times, and in my original blog post, I agree that if Congress interpreted article 205, section 20 in a specific way, it should have declared its interpretation, and that it according to the constitution did not have the right to interpret in extraordinary sessions. <br /><br />And I have never argued that what Congress did on June 28 was strictly legal. What I’ve argued is that based on earlier court rulings and following amendments, at that point, yes, Congress had the legal right to interpret the constitution. <br /><br />My argument doesn't fully legitimise the Law Library Report. It does, however, remove the coup de grace against it.Gabriel H. Sahlgrenhttps://www.blogger.com/profile/10149065248380853441noreply@blogger.comtag:blogger.com,1999:blog-2341954168256070610.post-8365424372117631412009-10-03T19:39:10.519-07:002009-10-03T19:39:10.519-07:00This long delayed, and too-long blog post, is part...This long delayed, and too-long blog post, is partly in response to someone signing himself "Gabriel", who has posted a series of comments widely on the internet that seem to be motivated in support of the novel, flawed legal research from the Library of Congress Law Library. <br /><br />We did not publish his post when it was originally sent in (as a comment on <i>Grade D-: Flawed Research</i>) because it contained a number of errors of fact or interpretation (some of them stemming from reliance on the ICJ report linked to above, with which I am very familiar). It would have been unfair to publish it and take it apart when it was clear that the arguments were based on confusion from relying on-- flawed research reports.<br /><br />To do our critic justice, though, I wanted to go through his long comment and extract any remaining statements I have not dealt with above:<br /><br /><i>Congress has interpreted the constitution since the court ruling. Decree 2-2005 interpreted article 205, section 19 (president signed it).</i><br /><br />This is an example of the pattern described here. This is unobjectionable; it is less interpretation and more defining the claimed legal bases. It does not occur in the "considerando" clauses.<br /><br /><i>The ruling did not deal with article 205, section 10, but only with article 218, section 9.</i><br /><br />Correct. The point is that Supreme Court rulings have broader applicability; they were ruling on the underlying claim, not the specific way the Congress was trying to embody it.<br /><br />Gabriel writes that the ICJ <i>"agreed with Honduran legal experts in constitutional law in that Congress cannot utilize power and competence that have not expressly been conferred by the Constitution. However, the Constitution itself has given Congress the power to interpret, amend and repeal the ordinary laws."</i> Yes; but that is not interpreting the Constitution. Because the Supreme Court retains the power to review every such law, and declare any one unconstitutional. The ICJ was not endorsing the Congressional claim.<br /><br />Finally, Gabriel writes that <i>It does seem as if Congress had the right to interpret even after the ruling, only not in cases relevant to the court.</i> No; Congress has no inherent right to interpret the Constitution. It has the right to interpret laws, and through making law, is advancing interpretations, but all these are always subject to Supreme Court oversight. There can be no constitutional interpretation that is not subject to such oversight, so there can be no constitutional interpretation "not relevant to the court".<br /><br />There were a series of other conclusions Gabriel drew, but they stem from following the misleading verbiage of the ICJ and not realizing that the January 2004 ratification of the 2002 proposed amendment did not come about as a response to the Supreme Court ruling, and contained absolutely no changes from the original version, which did indeed spur the Supreme Court into using the platform provided by a case before it to articulate an extensive argument against Congressional power to interpret the Constitution.RAJhttps://www.blogger.com/profile/00097415587406899236noreply@blogger.com