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.

Saturday, August 22, 2009

Is there anything new in the Supreme Court's comments on the San Jose Accord?

An article posted at 7:20 PM Saturday evening on the website of the pro-coup Honduran newspaper, La Prensa, brings us a verbatim publication of the outcome of the weeks-long deliberation on the San Jose Accord by the Honduran Supreme Court.

Surprise: they don't like it.

Actually, it is a breath of fresh air to have some branch of the de facto regime actually admit that they have no intention of accepting core principles of the San Jose Accord. The regime has realized it can virtually endlessly play out the clock by reiterating supposed support for the Accord, while either remaining silent about the restoration of the democratically elected president, or actively refusing to consider that point.

And while they are subtle, there are some interesting points in the Supreme Court statement.

Press coverage has emphasized that the court reiterated that President Zelaya would have to stand trial. But what they actually said is that there is an existing legal case against him, which has to be finalized following the penal processual code.

As readers of this blog know, the required process had only begun the discovery phase of gathering statements. The single justice who was assigned that task still could have decided to dismiss the case, a defense could have been mounted, and the case would have had to be proved. So while this is being spun under the reigning perspective of "guilty until proven innocent", under the actual reformed legal code's presumption of innocence, a chance to fight the charges, weak as they are, would hardly be a reason not to come back.

It is one thing to accuse someone of really serious crimes-- all those capital letters!-- and another to prove it.

(And notice the capital letters come in discussing the San Jose accord's call for President Zelaya to abandon constitutional reform for the rest of his term in office; it looks like it is emphasizing how guilty he is, but in fact when it talks about the ongoing legal case, it refrains from the scare tactics; the capitals here are to emphasize how dreadful the public poll or survey was, that it was so horrific that it led to charges of serious crimes. Not that these were proven, just that the poll motivated a lawyer to file these charges.)

Most interesting of all: the court makes no reference to the supposed 18 point indictment, so trumpeted by the Micheletti regime, which as we noted previously actually lacks the most dark crimes being mentioned in conjunction with President Zelaya and instead is full of multiple points of administrative law.

It is also intriguing that in the section commenting on the San Jose Accord's call to restore the government to its condition before June 28, the court feels obliged to address a possible criticism that no one has actually made. So, they burst out in a description of how their branch is really legal, legally appointed waaay back in January (unlike some other branches we might mention but are too polite to embarrass: yes, we're looking at you, de facto executive branch...).

Anxiety about what will happen on restoral also may explain the insertion in their list of comments on the final dispositions in the San Jose Accord of a reiteration of their own approval of their own actions, which they say have been absolutely in accord with the Constitution and within the framework of impartiality.

Nothing to see here, move along; did I mention that the executive branch is really, really not in keeping with the constitutional and legal framework? well, did I?.

And of course, like all parts of the de facto regime's government, they cherry-pick the accord for phrases they like and try to spin them. Thus, in their seventh comment on the final dispositions, they call for the international community to respect Honduran sovereignty and the non-interference clause in the UN Charter.

The truly dangerous thing about this regime, again, is that they seem to really believe they are just misunderstood; their violations are all felicitous exceptions to the rules.

Oh, and the there's that little thing in the preamble where they register their disrespect for the very idea of constitutional reform by the people. So very much better not to let them get their hands on it.

This dispute will not go away: the reactionary position is now clearly that any attempt to modify the constitution (except all the modifications congress practices for all sorts of reasons) is impermissable. Added to which we now have the premature promotion of the participants in the 1981 constitutional drafting to the status of would-be Jeffersons and Madisons.

In service of better understanding by the English speaking community, here is [the first half of] a translation of the document emitted by the Supreme Court [with the rest to come]:

A. Constitutional and doctrinal dispositions relating to the document of the proposed 'San Jose Accord':

I. Constitutional dispositions about the organization of the State of Honduras.
In conformity with the Constitution of the Republic, Honduras is a State of Law, its constitutional form of government is Republican, democratic, and representative, exercised by the three powers (Legislative, executive, and Judicial), complementary, independent and without relations of subordination. Sovereignty corresponds to the people from which emanates all the powers of State that are exercised by representation.

Within the constitutional organization of the Honduran State, to the Judicial Power corresponds the power to impart justice by independent justices and magistrates, uniquely subject to the Constitution and the Laws, through its application in concrete cases, judging and executing judgment, pronouncing through resolutions and sentences issued with the independence that the constitutional text ordains.

II. Doctrinal dispositions about constitutional reform and the set-in-stone clauses.

Every Constitutional State establishes mechanisms to reform its Constitution, as a means to assure and maintain the conservation of the ideals that inspire the State of Law and Democracy. The key to the success of constitutions, as norms given supremacy, in any democratic society is precisely to come to be the result of consensus or of a pact of all a society and not of circumstantial will, in addition to foreshadow in its norms the form of materializing constitutional changes, as well as the mechanisms that permit a guarantee that the validity of the popular will not be supplanted.

In the eagerness to fortify democracy it is important to visualize the necessary equilibrium of the two principles that are always found present in every constitutional reform: constitutional supremacy and popular sovereignty. On the one hand, constitutional supremacy that implies that the Constitution is the supreme norm that obliges equally those who govern and those who are governed, prescribing the mechanisms for constitutional reform, as limits to the powers constituted by the people themselves. On the other hand, popular sovereignty that empowers the people as the holder of sovereignty, the exercise of constituent power to modify the Constitutional State, its organization and the Constitution itself, in the form prescribed in that document itself, for which there are established limitations of a material kind, such as irreformable or set-in-stone clauses. These aspects, without doubt were considered by the legislative constituent at the moment of the approval of the Honduran Constitution of 1982.

In this sense, the majority of the irreformable or set-in-stone articles of the Honduran Constitution are directed to establish a rigidity so that the Constitution cannot be reformed freely at the whim of the political forces governing the country. Constitutional Article 374 expressly comes to be a clear limit on the possibility to return to the epoch of constitutional rupture on the part of military regimes, as well as to impede that, once in power, the holder of the Executive Power should intend to convert him- or her-self into a president "ad infinitum", by applying the prohibition against that functionary opting for re-election. Today, the democratic State of Law should strengthen itself in order to avoid the menace of the calls of an imperialist presidency, democratic plebiscites, or even so-called democracies without a state of law, in which they seek to infringe or elude the fulfillment of the Constitution and Laws reigning in each country.

B. Opinion of the Supreme Court of Justice about the document of the proposed "San Jose Accord"

The Supreme Court of Justice, in the framework of its constitutional attributes, subject only to the Constitution of the Republic, international instruments and laws, in relation to the document of the proposed "San Jose Accord", in that which could fall within the competence of this Power, for actions realized or by express reference to the Judicial Power in the contents of the said document and other related aspects with constitutional dispositions, manifests its opinion in the following terms:

First: On the National Government of Unity and Reconciliation

In regard to this point in which the conformation of a "national government of unity and reconciliation integrated by representatives of the diverse political parties recognized by its capacity, repute, suitability, and will to dialogue" will be established, in this respect it is important to observe that even though this postulate is introduced within the ideals of participatory democracy, nonetheless it should be held in mind what is established in Article 245, number 5 of the Constitution of the Republic of Honduras, that grants to the President of the Republic the power to name and separate freely the Cabinet members.

Second: Renunciation of convening a National Constituent Assembly or to Reform the irreformable part of the Constitution

It is demonstrated that the convocation for a poll or survey to modify the Constitution of the Republic, in contravention of judicial resolutions dictated by competent tribunals, declaring the same illegal for not being framed within the legal and constitutional dispositions in effect, was one of the charges on which was based the legal filing presented by the Attorney General of the State, against the ex-incumbent of the Executive Power, citizen Jose Manuel Zelaya Rosales, for supposing him responsible for offenses against the FORM OF GOVERNMENT, TREASON AGAINST THE FATHERLAND, ABUSE OF AUTHORITY AND USURPATION OF FUNCTIONS, in prejudice against the PUBLIC ADMINISTRATION AND THE STATE OF HONDURAS.

Given the principle of constitutional supremacy that the Constitution of the Republic of Honduras implies is the supreme norm of State that obligates equally the governors and those governed, and that prescribes the mechanisms for constitutional reform, it is obligatory observance of what is established in its Articles 5, 239, 373, and 374, in reference to the impossibility of inciting, promoting, or supporting modifications to the form of government, national territory, presidential term, to the prohibition against a citizen that had that role under any title to be President of the Republic again, and in reference to those who cannot be President of the Republic for the following period.

Third: Concerning the return of the Powers of State to their integration previous to June 28

To this effect and understanding that this refers to those who wielded the incumbency of the same, since as Powers of State they continue functioning and operating in the framework of the attributes and limits that the Constitution, international agreements, and laws impose, taking into consideration that the Public Prosecutor's office has exercised penal action interposing filings against citizens that are supposed responsible for the commission of offenses and those give rise from the beginning to corresponding penal cases that the courts and tribunals are hearing, the only way to finalize or suspend these penal processes is in conformity with what is regulated in our penal processual legislation, so that an arrangement of political character must necessarily pass in respect to legality and corresponding juridical control. On the contrary, it would be true nonsense if the search and construction of accords in a State of Law, is accomplished by violating or leaving aside the Constitution and the Laws.

In respect to and by express allusion to the Judicial Power, it affirms that this Power of State was legitimately constituted in conformity with the process of selection and election regulated in Articles 311 and 312 of the Constitution of the Republic for a period of seven years beginning January 25, 2009, and from the referenced date has been fulfilling its functions and attributes in conformity with that indicated in the Constitution of the Republic and the Law.

In relation to the return of the citizen Jose Manuel Zelaya Rosales to the Presidency of the Republic, until the conclusion of the present governmental term, the 27 of January, it should be taken into account that as has been mentioned previously, there exist penal actions presented by the Attorney General of the Republic; in consequence and in strict legality as long as there do not exist other applicable legal dispositions he cannot avoid having to submit himself to the established proceedings in the penal processual code.


Doug Zylstra said...

RAj -

The PDF ( has some markings in the margin that I can't quite make out; I don't know if that's simply Heraldo Redaccion or something else.

I was intrigued by one handwritten note that says "Retorno Renuncia".

Doug Zylstra said...

Raj -

Looking forward, any ideas on the OAS delegation; La Tribuna ( is setting this up as the 'Final Encounter', and it doesn't look good for a one Mr. Zelaya.

RAJ said...

There never was any point to this OAS visit in terms of resolving the crisis. It satisfies the need to have a formal show of listening to the de facto regime and coup supporters, who claim that the OAS should not have voted to censure them without listening to "their side".

It appears to me that there actually are people on the pro-coup side who believe that the OAS delegation will slap its forehead and say "what were we thinking! we have to recognize you guys!". If so, they are destined to be disappointed.

But the main thing the visit will do is feed the propaganda machine in Honduras. Watch for statements by Micheletti and proxies to the effect that just by not spitting in their face, OAS accepted that they really are the legitimate government.

If anyone continues to hold out any hope that Micheletti and company have a secret Plan B that allows a way out of the crisis, I think they will find their hopes dashed.

The only tiny ray of hope I can see here is that maybe, just maybe, the US will no longer have room to shelter behind the idea of a multilateral approach, and will get serious about applying economic pressure that the members of the coup regime will feel.

Cut off aid going to right-wing factions in the country. Freeze US bank accounts of those complicit in the de facto regime. If you can't tell yet that this is a military coup, at least set a date in the very near future for issuing your final decision on that; preferably before the end of November.

Now, this is not to say I think nothing newsworthy will happen. It is possible that the coup regime will say something revealing that we have not heard yet. It is possible that some piece of the coalition will peel off. It is certain that the resistance in Honduras will mobilize in the hope that the lazy international press will notice them and broadcast some footage.

But since I recently heard myself describing the coup regime as moving Honduras toward Myanmar or North Korea status, I have to say, I appear to be entirely pessimistic about there being a diplomatic solution.

Honduras seems trapped in a nightmare without an end. Even if the OAS succeeded in engineering a restoration, the polarization is so very deep and the damage to civil institutions so very harsh that it is no longer simply the loss of the progress of the last thirty years; it feels like there will be all the work of rebuilding a nation to do, and the people in power are not the ones you want doing it.

The young, the educated, the intellectuals, the artists, the scholars, and the authentic voices of laborers, Lenca, Chorti, Miskito, Garifuna, the Catholic priests and protestant ministers laboring in the rural countryside and bearing witness, the teachers and the university professors reviled for their independence of opinion: not the OAS, these are the people who will have to do this rebuilding. Not the US. And these are the people who have never received anything but unending debt offered as "aid", exploitation alternating with neglect, from the international community. How much more can we ask of them?

Anonymous said...

The "corte superema" comments seem like a lot of rubbish, jibberish. If anyone (or institution) should be able to see - there were many irregularities in the "arrest" of Zelaya. Why didn't the army bring him to the "corte suprema" to be charged? So much for rule of law. I guess the army disobeyed the order, or got orders from somebody else. The coup was an action of convenience and expediency to grab power using the cover of "protecting the country". They are self-serving and just want to hold on to power. Should I say kangaroo "corte suprema" or a BANANA COURT (Honduran governmental legal body serving economic elitist interests).

Anonymous said...

RAJ, take a look at the story in El Libertador. Zelaya has laid down the law.

RAJ said...

Doug sent me to a PDF of the Supreme Court document that has interesting handwritten marginal notations. With one word exception, I can read all of them, so I urge others to download this and see if they can fill in the blank.

Twice the person writes "repetir" next to a specific section (on page 4, and again on page 5) which made me think of someone reading this as part of a broadcast.

On page 4, the two words at the bottom read "retorno" above "renuncia". Who has to renounce what in relation to the return of what? The passage here deals with the return to the government that existed before June 28, which is the condition of the required return of President Zelaya.

"Renuncia" is used at the top of this page in the clause describing the San Jose Accord requiring President Zelaya to renounce constitutional reform.

So maybe these are just topic words for a writer of a story or a broadcaster. But two others seem much more interesting.

On page 5, a marginal note reads o sea presentarse o sometarse y --scar (or that is, present himself or subject himself and ....

This is next to an underlined section noting that there are ongoing legal cases that Zelaya would have to respond to. The phrase "presentarse y someterse" is the legal formula for the legal requirement to respond to charges.

But that "or" do something else is what I cannot quite make out. I think it is a verb, but cannot recognize it.

Anyway, here the person making notes makes the same inference I did: this is not a very strong statement. It just says he has legal charges pending.

And then the person making these notes marks with the word "repetir" in the margin an underlined section, part of it circled in pen, "in strict legality" Zelaya would have to be subject to the legal process; but this person circled for emphasis "mientras no existan otras disposiciones legales aplicables".

"As long as there don't exist other applicable legal dispositions" seems to leave open the door for there being another legal option, whether that is an amnesty by Congress or the withdrawal of charges by the prosecutor or something else.

It is a very squishy statement.

RAJ said...

For the story in El Libertador see Mercury Rising's coverage which ably summarizes the points made in a letter dated August 9, attributed to the Zelaya cabinet, directed to US Ambassador Hugo Llorens.

Posted on El Libertador on August 17, this letter indicts the US response, noting that there is widespread agreement in Honduras that the US, while condemning the coup, is not willing to act on its statements. As the writer(s) state

Los que están a favor del golpe militar lo expresan con satisfacción y los verdaderos defensores de la democracia y de la justicia, lo dicen con resentimiento e indignación.

("Those that are in favor of the military coup express this with satisfaction and the true defenders of democracy and justice say it with resentment and indignation").

Mercury Rising summarizes the rest of the points the letter makes. It needs to be translated, but it literally hurts to do so. So instead, here is how one member of the Zelaya government put it to me yesterday, commenting on the Interamerican Commission on Human Rights report:

esta es la clase de cosas que puede servir para activar a tu gobierno, si tu gob no aprieta con las visas las cuentas y el comercio, a mi ver el regimen se sostiene indefinidamente

("this is the kind of thing that could serve to activate your government, if your gov doesn't press with the visas the bank accounts and trade, in my view the regime will sustain itself indefinitely")

Anonymous said...

RAJ, I take as very high praise your judgment that I have "ably" summarized the letter in El Libertador. Thank you.

So... why isn't this letter being discussed elsewhere? Are there serious doubts about its provenance? Why would El Libertador be given preference over, say, Tiempo or Radio Globo for a release from Zelaya?

BTW, the writer slips with regard to voice and says, "Además, no he visto a los golpistas lamentando nada. Los únicos lamentos que escucho son los del Pueblo hondureño, al que usted y su gobierno hacen oídos sordos." If it's not a total fake, it's from Zelaya.

Also, a separate question: any idea why the name of Dona Xiomara has not been floated for president? She would seem to be legal, she's shown enormous courage in leading demos, and she has the name recognition. Manuel Zelaya has made it clear recently that he thinks that participation in the election would legitimate the coup, so I can understand why she wouldn't be running, but I don't understand why no one seems to have mentioned her name.

--Charles of Mercury Rising

Doug Zylstra said...


Just a thought.. What would prevent Micheletti, in his brave new constitutional world, from asking for the resignation of Elvin Santos as PL candidate and inserting himself. Seeing as how there is substantial pressure on Santos from both the left and right of the PL, he seems shaky as it is..

(I assume that Micheletti is still standing even after the OAS visit is come and gone, but I don't see why this scenario couldn't happen even with Zelaya's restitution..)

RAJ said...

The President of the Congress cannot be candidate for President; and no one occupying the office of President can ever run for President. So, since Micheletti asserts that he is the President, he can never be a candidate for it again.

Unless he wants to suspend the constitution...

RAJ said...

Charles: I think that there has been some uncertainty about the provenance of the letter. So much has clearly been forged, and then there are the things that many people believe are forged but have no proof of it.

As for Xiomara de Zelaya, constitutionally, family members and spouses of presidents (which everyone acknowledges Zelaya was, even the coup group) cannot be candidates for a period of time. So she is out.

Andrew said...

Forgive me if you have already posted these links in other blog posts, but I was wondering if you could post a link to the most recent version of the Constitution and the most recent Penal Processual Code.

RAJ said...

The original 1982 Constitution and the current version showing all amendments is available at Georgtown University's website Political Database on the Americas.

I actually obtained my copies of the legislation from restricted access databases through my university. But you can get this code, plus many other Honduran legislative documents (including, again, the constitutions), at another website The world law guide. The version you want is Decreto 9-99-E, here titled Codigo Procesal Penal 2002,

Be advised: at least on my connection, this site-- in the Netherlands-- does not always come up.

And of course, if you know the title (Decreto 99-9-E, for example) you can use the marvellous Library of Congress database, GLIN, to download PDFs of the original published versions of laws as they appeared in the Gaceta, which normally is the step that makes their implementation official.