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, August 4, 2009

"The 28th of June and the Constitution" by Edmundo Orellana

Edmundo Orellana, the defense minister who resigned from the Zelaya government the week before the coup to register his disagreement with President Zelaya, and who since the coup has spoken out against the unconstitutional nature of the actions of Congress and the army, has published a new editorial calling for acceptance of the San Jose Accord.

In it, he briefly summarizes the many violations of Constitutional procedure that make the coup illegal. As a legal scholar and university professor, it is especially interesting, as we pursue the analysis of the legal claims made prior to the June 28 coup, to note how Orellana characterizes the proposed survey or poll. As he (accurately) describes it, the poll was intended to "legitimate" a legal proposal that would have been submitted to Congress, which would have had the decision of whether to place it on the binding November ballot.

In light of the ramped-up rhetoric of the Armed Forces, whose role June 28 Orellana correctly criticizes as usurping the constitutional role of the National Police, it is important to note that the military has been perhaps chief among those whose defense since June 28 has been their role in defending the Constitution. As Orellana notes, you cannot use a violation of constitutional order to fix a constitutional violation.

The 28th of June will be marked by all of us forever. Particularly, by the youth, who lived in a world of their own, of work, of study and of diversion, but without political commitments. From that day, there is no youth that does not discuss those deeds and adopt a position.

No one is indifferent to what happened nor its consequences. The country, accordingly, is divided in two: those that justify the deeds of the 28th and those that reject them. Consensus will be reached only if we recognize that we all will lose. Anguish, certainly, the allotment that corresponds to each one, because this type of damages are never prorated.

There is no doubt that the responsibility for what passed on the 28th of June is with those that had the obligation to guarantee respect for and exercise of democracy and the fulfillment of our Constitution.

President Zelaya Rosales confronts accusations that impute to him a series of offenses all derived from his actions in relation to the famous opinion survey, by means of which it was intended to legitimate a project of law that would be sent opportunely to the National Congress so that it could decide whether or not the "cuarta urna" [fourth ballot box] would be placed, with the purpose of asking the people if they would like to convene a National Constituent Assembly during the following presidential term, and over which was pending a judicial ruling supposedly suspending its realization.

The Constitution of the Republic contains dispositions in which the comportment of the authorities should be framed, particularly in the case of accusation of offenses. Nonetheless, the supposed legality of the actions of this unlucky day does not hold up to the most minor analysis when confronted with the Constitution of the Republic.

The President of the Republic was captured by the Armed Forces, but our Constitution orders that judicial warrants should be carried out by the National Police (Art. 293), not by the Armed Forces, whose functions are of another order and much more elevated (Art. 272). After his capture, the President was not brought to a center of legal confinement, despite the fact that the Constitution orders that those detained or made prisoners should only be in the locations that the lay sets out (Art. 85). The President was expatriated to Costa Rica and the Constitution prohibits that Hondurans should be expatriated (Art. 102). The National Congress decreed the removal of the President, but the Constitution only attributes to it the power to accept his resignation or to substitute for him in case of absolute absence (Art. 205, no. 12). The National Congress founded the removal of the President on their rejection of his conduct as an official, nonetheless, the Constitution attributes to Congress the poweer to reject the "administrative conduct of the Executive Power" (Art. 205, no. 20), not of the official. That rejection, according to the National Congress, was due to the President violating the Constitution, many laws and judicial orders, but the Constitution only empowers the Congress to reject the "administrative conduct" (Art. 205, no. 20); the power to decide when he has violated the law or a judicial order, as well as to judge such deeds, is reserved, exclusively, in our Magna Carta, to the Judicial Power (Arts. 303 and 304).

Violations of the Constitution cannot be put right with another violation. The Constitution is defended by subjecting oneself to it. Their violation translates into disregard for the State of Law and infringes on the very essence of the Law. Therefore, a coup d'Etat never has been and should never be the solution to a political conflict. With that, we have mortally stricken our democracy, whose advances and setbacks, since 1982, have not permitted it to assert itself fully as of value in Honduran society.

Despite being mortally wounded, our democracy could recover its health even yet. Until now, we have proved, with the "Poet Shepherd", that " the animal that sings/the animal that can cry and put down roots/ remembers its claws"; we can avoid returning to the wild beast, and promise never to declare "today love is death/ and man stalks man".

For that, simply, we should follow the road towards reconciliation. We will arrive there by pardon and this will be obtained only by those who admit their fault.

The solution to this crisis necessarily passes by the "San Jose Accord", endorsed unanimously by the international community. In this uniquely is asked of the actors of this national tragedy: flexibility, equanimity, tolerance, humility, and rectification. Can it be so difficult to agree to this petition? An old adage says: error is human, correction is by the wise.


David said...

But the Defense Minister does implicitly acknowledge "violations of the constitution" by Zelaya, unless he's simply throwing that rhetoric back at his accusers (and justifiers of the coup) by saying that one violation doesn't justify another. I don't recall if Orellana said something at the time to the "illegalities" of Zelaay when he resigned, if in fact he made such claims.

Wasn't the decree of the Honduran Congress that Orellana critizes ex post facto? Isn't a more serious problem, as you've noted but which Orellana doesn't address, the way the Supreme Court interpreted their authority?

I apologize if these questions require a rehash of older arguments...

RAJ said...

Orellana cited disagreement about Zelaya's firing of General Vasquez when he resigned. But in the open letter previously translated here, he argues that the June 26 accusations are flawed. So I take this as rhetorical-- not conceding Zelaya was guilty. Like other lawyers cited here he acknowledges the right of the prosecutor to bring charges but notes you cannot assume the outcome of a trial would be a guilty verdict.

Orellana is criticizing the order of June 26-- which some sources think was created after the fact-- but it theoretically was the prior authorization of the raid on June 28.