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.

Friday, August 28, 2009

There was no Constitutional Succession

This is my rough translation of an editorial by by Ramón Enrique Barrios, Professor of Constitutional Law in UNAH in today's Tiempo. It in turn, we are told, a summary of a talk he gave to a group of teachers and workers at the San Pedro campus of UNAH.

There was no Constitutional Succession
by Ramón Enrique Barrios

It Was not a constitutional succession, rather a coup d'etat. This crisis began with a call for a non-binding poll. It wasn't a plebiscite nor was it a referendum, both of which are binding.

This poll was based in the Law of Citizen Participation and would have been carried out by the National Statistics Institute, INE. In my judgement, it was not illegal. With the results of the same, they would have gone in front of the National Congress, which was who would give the final authorization to place, or not, a ballot box in the general elections of November to consult the people to see if they want a National Constituent Assembly. If the Congress had said "no", that would have been it.

Its important to note that the candidate of the National Party, Porfirio Lobo Sosa, has also proposed a fourth ballot box in the name of the Constitution, but they don't treat him in the same way. It would be constitutional to place either ballot box.

We have a judge of the Complaints against the Administration (Contencioso Administrativo) who thought this poll was illegal and prohibited it.

To not follow that order does not carry a crime. Zelaya insisted in carrying out the poll, and in insisting, committed the crime of disobedience (to the judge's ruling). This is the crime that the President committed.

Question: Why didn't the Public Minister proceed to prosecute the President if this happened a few days before the 28th of June?

We are supposed to believe that friday, the 26th of June at 4 in the afternoon (when everyone working is preparing to leave), they presented a request for indictment to the Public Minister, but there, they accused him of treason against the country, attempts against the form of government (they should have gone after other supporters of the forth ballot box in the same way).

I think its almost impossible that they presented the request at 4 in the afternoon of June 26th, but if that's the way it is, the way it's handled is that the Supreme Court as a whole comes together, because of its diversity and names a Judge having jurisdiction (Juez Natural), a lawyer "juez de letras" (one of the justices), but instead they named justice Tomás Arita Valle (we must ask why they later revoked his visa?)

The question is, when did they meet? Its interesting to note that the judge having jurisdiction, Arita Valle, is from the Labor branch, and the ideal for this would have been someone from the Criminal branch.

Later the judge accepted the request for indictment and gave the detention order June 26th (?). We ask, why wasn't he detained that friday, or Saturday, the 27th?

Another thing he didn't comply with: its a given that judges give detention orders to the National Police, not the the Military (who have their own constitutional functions, but its never constitutional that they detain people). That's how they carried this out, assaulting the constitution.

Raul Alfonsin, ex-President of Argentina, commented that all was well with the military of his country; the only thing was, the "don't think".

The detained citizen President José Manuel Zelaya Rosales on Sunday, June 28th, before 6 in the morning (the law says that detentions happen between 6 am and 6 pm).

In the detention, there are a series of irregularities. We see they surrounded the house with 500 soldiers, entered shooting, and detained him before 6 am and having done that, the logical thing would have been to take him in front of the judge who issued the detention order, Tomás Arita Valle.

Before him, he [Zelaya] would have to give his testimony about the allegations. And logic tells us they would have given him an alternate punishment as they have done for mayors, businessmen, and even drug traffickers, and that's how he would have been judged.

As for them invoking a "state of necessity" to throw him out of the country, the order given by the judge was to detain him, not to banish him from the country (which is against the constitution).

With all respect to my distinguished legal colleagues I can say that they lie who say that he was detained and banished from the country because of a state of necessity, because the president was disarmed, none of the population knew of this to allege that his detention would provoke a popular revolt, and the Presidential Guard was disarmed.

From that it doesn't fit because there was no legal good in danger, and at the same time, due obedience doesn't apply.

After removing him from the country, Congress met and said the president was "absent", but note, his absence wasn't voluntary. They could not claim any of the three causes established by the Constitution, to elect a new President, and these are: death, resignation, or incapacity.

That same day a resignation appeared. They read a supposed letter of resignation of President Zelaya and decreed that that established that Roberto Micheletti was President because of the resignation. After that they claimed it was because of the crimes committed by President Zelaya. Now they don't cite the resignation letter which was denied by the same President Zelaya. Here we have the presumption of a crime for falsification of signatures.

Its important to highlight that the same Constitution guarantees the right of due process and that no one can cite someone as crimminal if they haven't been heard and judged, because "all people are inocent until proven guilty".

Here is the rupture that becomes a coup d'etat by the Congress and the Armed Forces.

What happened here was serious and it pains me that colleagues want to maintain that what happened here was a constitutional succession. This is untenable.

And the crimes committed by action or omission. To be silent in this situation is an omission, and suspect. This is the historical moment to define ourselves and to come out defending our institution, the rule of law; I'm not talking about a particular person. I don't belong to any particular political party, but I am a citizen and as a professor in UNAH I have to collaborate in the instruction of the people to whom we have a duty.

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