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.

Wednesday, August 12, 2009

Treason! or, Maybe Not

The charges brought by the Public Prosecutor in the secret proceeding a justice of the Supreme Court began hearing on Friday, June 26, have been summarized here before; they may be read in full starting on page 32 of the 86 page "ExpedienteJudicial1.pdf" posted by the Honduran Supreme Court.

The title of the complaint brought by the Public Prosecutor called for the following actions:

(1) issue an order of capture
(2) communicate the deeds imputed to, and take the declaration of the accused
(3) suspend him in the exercise of his office
(4) authorize a raid on his home
(5) decree the proceeding secret

The justice of the Supreme Court hearing the complaint-- who not only did not reach a decision, but could not do so on his own, and certainly not before holding a trial at which the accused would have had the right to defend himself-- did issue an order of capture; did authorize the raid on President Zelaya's home; did order that his statement on the charges against him be taken; and did declare the proceeding secret; but did not order him suspended in the exercise of his office.

The crimes that the complaint alleged were cited as: offenses against the form of government; treason; abuse of authority; and usurpation of functions. It is worth exploring how the Constitution and Penal Law Code defines these crimes, and what the complaint cited as the grounds for each accusation.

Because it is the most serious crime, with the longest possible sentence, we begin with treason.

The relevant section begins on page 39 of the PDF. It cites Article 2 of the Constitution for the definition of treason as "the supplantation of popular sovereignty and the usurpation of the constituted powers", and Article 4 defining the form of government as "democratic, republican, and representative" and exercised by the Legislative, Executive, and Judicial branches independently and complementarity. The complaint further cited Constitution Article 5, paragraph 7, saying Article 374 could not be reformed by referendum or plebiscite, and Article 373, defining the procedure for the National Congress to amend the constitution by 2/3 vote. Finally, the complaint cites Constitutional Article 374, which defines the parts of the constitution that cannot be amended as Articles 373, 374, and specific provisions on presidential term and repeat service as president; and cites Article 375 stating that the constitution cannot be amended in any way other than those defined in the constitution itself.

Then it cites Article 310-A from the penal code, which defines the punishment for committing treason as defined in Constitution Article 2, and Article 311 of the penal code, which reads "The intent of any of the offenses included in article 310-A, will be punished as if the offense were consummated." But notably, it does not cite "the offenses included in Article 310-A", just the punishment listed there.

Why? is it that the penal code does not clarify what constitutes treason? far from it.

In his commentary on the constitutional passages he cites, the public prosecutor writes that

The crime of treason against the fatherland, is directed to affect the constitutional bases of the unity of the State as a political entity, actions that are consummated by acts directed outside the legal ways to divest in part the faculties attributed to the legally constituted powers

The section dealing with treason in the cited penal code actually runs from Article 302 to 311. Articles 302 to 310 specify what acts constitute treason: Article 302 stating it is "to execute acts that tend directly to impair the territorial integrity of the Republic, to subject it totally or partially to foreign dominion, to compromise its sovereignty, or attack the unity of the State".

Where the public prosecutor defines sovereignty as "exercised in this country by representation in conformity with the constitutional norms established", we find no such definition in either the constitution Article 2, nor the cited legal code.

Article 303 adds to the definition of treason serving in armed forces or taking part in military action against the country and Article 304 specifies additional bases for punishment if during the military action part of the national territory, troops, military material, food, or crops, or other things necessary for the defense of the State falls into enemy hands.

Article 305 defines provoking hostilities against Honduras as treason; Article 306 defines as treason anyone who, charged with carrying out affairs of state with another country, acts disloyally; Article 307 sanctions for treason anyone divulging state secrets; Article 308 defines drawing plans of military installations or entering military installations with that intention without being authorized; Article 309 sanctions anyone removing markers of the frontiers; and finally, Article 310 defines as treason inducing troops to desert or serve the enemy in time of war. Article 310-B defines acquiring Honduran citizenship by any illegal means as treason.

Comparing these defined forms of treason to the "crime" of calling a poll makes it clear how far removed the actual deeds for which President Zelaya was being pursued are from any of forms of treason recognized under Honduran law.

Even more interesting than the partial citation of the penal code on treason is the partial citation of Constitution Article 2. What was left out was the following:
La soberanía del Pueblo podrá también ejercerse de manera directa, a través del Plebiscito y el Referendo.

The sovereignty of the people can also be exercised in a direct manner, by means of the plebiscite and the referendum
By leaving this clause out, the complaint gives the impression that the only constitutional form of government is the institutions that represent the people. This supports the otherwise weak argument that the proposed poll was inherently treasonous by asking the opinion of the people, instead of simply supporting the existing process of amendment of the constitution that is monopolized by the National Congress.

The main argument made for this interpretation starts by saying that President Zelaya supplanted popular sovereignty when he "convened the Honduran citizenry to participate in a popular opinion survey". He violated popular sovereignty by proposing to consult the sovereign people.

The argument proceeds
In this sense, the act of convening a National Constitutional Assembly, is evident that with the same it is intended to abolish the present Constitution, an action constituting the offense that concerns us [treason] in regard to that disposed in articles 373, 374 and 375 of our Constitution, does not lose its effectiveness and nor ceases to apply and cannot be the object of any modification, whether for any other means and proceeding distinct from that which is outlined in it; in consequence, under no circumstance can a new constitution be dictated and approved because that would bring with it the reform of the stone articles, the same that cannot be reformed in any case.
Hence any survey asking people's opinion about whether there should be a ballot question about whether to convene a constitutional convention, whose specific goals were entirely undefined, necessarily was treasonous because the only way to draft a new constitution would supposedly be to set aside the unalterable articles of the present constitution.

On the face of it, this is ridiculous. Even a biased Honduran court would, one would hope, see that this goes beyond the definition of treason as specific actions or the intention to commit those actions. In the face of the repeated statements that there was no intent to alter the unalterable articles; and given that the survey had no binding force to effect even the ballot referendum; it should have been easy to prove that this was an exaggerated claim.


Tommy said...

For your information, this is something from youtube that a certain organisation called UCD(Union Civica Democratica de Honduras) used to justify Zelaya's removal:
(note how they selectively emphasise certain aspects preceding the golp)

By the way, can anyone enlight me more about this UCD? I can't find their website anywhere


RAJ said...

The UCD is, to quote a source I would normally shy away from (the Venezuela Information Center) but know in this case is accurate,

a coalition ...that has publicly backed the coup against President Zelaya

including the folllowing organizations that have received US funding:

Consejo Nacional Anticorrupción, the Archbishop of Tegucigalpa, the Honduran Private Enterprise Council (COHEP), the Council of University Deans, the Confederation of Honduran Workers (CTH), the National Convergence Forum, the Chamber of Commerce (FEDECAMARA), the Association of Private Media (AMC), the Group Paz y Democracia and the student group Generación X Cambio.

This is from a longer discussion of conservative organizations backed by US foreign aid:

The U.S. Agency for International Development (USAID) also provides approximately $49 million annually to Honduras, a large part of which is directed towards "democracy promotion" programs. The majority of the recipients of this aid in Honduras, which comes in the form of funding, training, resources, strategic advice, communications counseling, political party strengthening and leadership training, are organizations directly linked to the recent coup d'etat...

TITO said...

UCD, is an organization that came into existance in order to run a campaign against the poll (before June/28).
This organization claims to be of civil representation of the whole population. However, the board of directors are the wives of many "prosperous" bussinessmen and politians.

TITO said...

I hate these "highly" respected officials that claim to own popular sovereignty just because it is exercised by representation. They can no even come up with a good case against him (Zelaya).

"He violated popular sovereignty by proposing to consult the sovereign people." This is a HUGE contradiction.

RAJ said...

Yes-- but for me, it is critical to realize that this group, and its constituents, are financed by US tax dollars under a supposed "democracy promotion" initiative.

These false grass roots movements are extremely problematic. Go and read the whole original piece I cited to get a sense of how deliberate support for a coup is among these sponsoring groups.

RAJ said...

The claim supplanting popular sovereignty is based on assuming that popular sovereignty has been totally delegated by the people to the elected government.

President Zelaya's movement gained support in large part precisely because he was promising the citizenry a way to make themselves heard directly.

It is this move from representative democracy to participatory democracy that I think was most feared by the elites. What really was dangerous about the non-binding, officially delegitimated, popular opinion poll on Sunday June 28? the product would have been a number of yes votes registering in one concrete question a proportion of the Honduran people dissatisfied with the current form of government and its institutions.