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, October 3, 2009

Congress versus the Supreme Court (a long story)

The release just over a week ago by a US Republican congress member of a report wrongly characterized as by the Congressional Research Service caused excitement in Honduras, where it was portrayed as indicating that the US recognized the de facto regime's claim to legitimacy. It also sparked debate between coup apologists and opponents on the internet, proposing different interpretations of the report and, more significant, of Honduran legal and constitutional procedure. After much reflection, I have decided to post this contribution even though I am concerned that all of us have been caught up in a sterile discussion initiated by a badly researched, badly sourced Library of Congress Law Library report.

So for the record, a reminder: the Honduran Congress published, in its Decreto 141-2009, its own actual argument meant to legitimate its actions of June 28. No speculation by a US Library of Congress researcher, or for that matter any of us commenting now, replaces that primary source as the sole explanation of why the Honduran Congress thought it could remove President Zelaya from office and replace him with the head of the Congress at the time, Roberto Micheletti.

Post-facto "discovery" of other arguments that might justify their actions cannot substitute for this primary source, whether it is the invocation of Article 239 which has been thoroughly debunked, or the proposition by the Law Library of the Library of Congress of an "implicit" use of a power supposedly based in Section 10 of Article 205 of the Honduran Constitution.

Decreto 141-2009 cites Articles 1, 2, 3, 4, 5, 40 numeral 4), 205 numeral 20) and 218 numeral 3), 242, 321,322 y 323 of the Constitution. Period.

Based on those articles of the Constitution-- note the absence of either Article 239 or Article 205, section 10-- the Congress made three declarations.

In the first, they "disapproved" of the conduct of President Zelaya; and resolved to separar al ciudadano JOSÉ MANUEL ZELAYA ROSALES del cargo de Presidente Constitucional de la República de Honduras ("remove the citizen José Manuel Zelaya Rosales from the office of Constitutional President of the Republic of Honduras"). In the second numbered resolution, Congress "promoted" Micheletti to the office of the presidency for the remainder of President Zelaya's term. Finally, they specified that the two preceding points would become effective immediately on a two-thirds vote by Congress.

As Honduran Constitutional law authority Edmundo Orellana has noted numerous times, Congress has the power to disapprove of the conduct of the President, and made an error in disapproving the president, not specific acts he performed; and furthermore, Congress has no constitutional authority to remove the President from office. Nor is there any Constitutional basis for "promoting" the President of Congress.

So that's all clear, right?

Congress based its actions on June 28 on two articles of the Constitution, one specifying what would happen in the event that a President was "absolutely" unavailable (e.g. due to death or disability; not due to illegal expatriation); and one that defined the order in which different government officials stood in line for the Presidency in the event of need.

But the Honduran Congress ignored the fact-- and it is indeed a fact-- that, when immunity to prosecution for high government officials was removed from the Constitution, the authority to prosecute officials for crimes, possibly culminating in removal from office, if guilt were proved after a trial, was reconfirmed as residing with the Supreme Court, which began such a legal process in response to the charges by the Public Prosecutor dated June 26.

Understanding this last point is important. Congress on June 28 not only violated the rights of President Zelaya; it mangled the separation of powers by usurping the rightful role of the Supreme Court.

And that was not the first time that the Honduran Congress had reached out to extend a claim over actions that are appropriately the business of the Supreme Court. While the researcher who produced the dreadfully flawed report for the Law Library of the Library of Congress did not produce any useful information about the constitutional basis for the actions Honduras' Congress took on June 28, she did draw attention to a particularly vivid illustration of a structural problem with Honduran governance under a Constitution that Costa Rican President Oscar Arias has now characterized as "the worst in the entire world".

The Law Library researcher claimed Article 205, Section 10, gave Congress the power to interpret the Constitution, and thus they must have been engaged implicitly, tacitly, without mentioning it, in interpreting "disapproval" as including "removing from office".

Here is the full version of that section of Article 205 as it stands today:
ARTICULO 205.- Corresponde al Congreso Nacional, las atribuciones siguientes:
10. Interpretar la Constitución de la República en sesiones ordinarias, en una sola legislatura, con dos tercios de votos de la totalidad de sus miembros. Por este procedimiento no podrán interpretarse los Artículos 373 y 374 Constitucionales.

Article 205-
Correspond to the National Congress, the following attributes:
10. To interpret the Constitution of the Republic in ordinary sessions, in a single legislature, with two thirds of the votes of the totality of its members. By this procedure it cannot interpret Constitutional Articles 373 and 374.
[these last are the so-called set-in-stone articles.]

This language was not part of the original 1982 constitution. It was added by Congressional amendment proposed in 2002 (Decreto 276-2002), ratified in 2004 (Decreto 241-2003). This amendment was incorporated in the text of the Constitution with the publication on March 10, 2004, in La Gaceta of the decree ratifying the amendment, which was passed on January 20, 2004. It replaced an unrelated section of Article 205 (which enumerates the powers of the Congress) that had been removed previously.

This timeline needs to be considered in relation to a key Supreme Court decision of May 7, 2003. That decision declared unconstitutional the expansive authority the Congress had begun claiming to interpret the Constitution, on the basis that it violated the separation of powers. Under the opening articles of the Constitution, Congress makes laws and interprets what it meant when it made those laws; the Supreme Court, on petition, rules on whether those laws are unconstitutional or not. Congress cannot take over that power.

This court case was decided in the middle of the required process for establishing a constitutional amendment, which calls for the same amendment to be considered in two successive sessions of Congress, and passed in identical form by both sessions. Contrary to a claim made in multiple internet forums, the second Decreto did not add a clause about the set-in-stone articles, 373 and 374; that was already in the original version passed in 2002.

Most important for our purposes are the contents of the clauses defining general underlying principles (
(clauses that start "Considerando", or "Considering"):
Considering: That in conformity with the Constitution of the Republic in its Article 205 numeral 1, there corresponds to the National Congress the attribution of creating, decreeing, interpreting, reforming, and abolishing laws;

Considering: That the Extraordinary Leaders of the Honduran people united in the National Constituent Assembly granted the power to reform the Constitution of the Republic to the National Congress, the Constituted and Ordinary Power, but following a more complex procedure than that for amending the ordinary laws: precisely for being the Constitution the work of the Constituent Power, they omitted, nonetheless, a proceeding for its interpretation.

Considering: That as our Constitution is rigid in the mechanisms for its amendment, it is logical that the legislative organ ought to follow the same orientation in the legislative technique of hermeneutic proceedings.

Considering: That the constitutional practice that now enjoys "the opinion juris" [norm of behavior], is considered among us, as a constitutional custom and being the constitutional custom is the most important direct or immediate source of Constitutional Law, after the Constitution itself, it is in order to elevate to the rank of written constitutional precept the referenced custom, through which the National Congress has been interpreting historically and systematically the clauses of the Constitution, through decrees approved in ordinary sessions with a certified vote of a two-thirds majority of the totality of its members, in a single legislature.
What these statements tell us is that Congress was making the claim that the Constituent Assembly had not been clear in 1982 about who was charged with interpreting the Constitution; that the Congress had a habit of discussing Constitutional interpretation ("hermeneutic" being the key word here, drawn from biblical scholarship, and meaning the process of interpreting a foundational document); and that Congress considered its customary practice the most authoritative way to ground law, outside the Constitution itself.

The Supreme Court disagreed. Article 184 of the Honduran Constitution describes the Supreme Court as responsible for hearing and deciding on the unconstitutionality of laws. It specifies that the Supreme Court is the originary and exclusive source of authority on constitutionality.

What seems to be fueling the idea that this decision does not apply to the amendment that brought into being Section 10 of Article 205 is confusion about how constitutional law is put into practice. When the Supreme Court made their ruling in May 2003, Section 10 of Article 205 was not ratified; it did not legally exist, and the Supreme Court did not mention it in its sentence because it was not part of the constitution. But their ruling addresses the underlying constitutional principle.

Section 10 of Article 205 will not be removed from the Constitution until someone challenges it, or until it is used as the basis of a lower court decision that leads to Supreme Court review. But that does not change the fact that it is unconstitutional. The May 2003 ruling, like all Supreme Court rulings, is extensive. Under the Law of Constitutional Justice, Article 90 says "The sentence that declares the unconstitutionality of a legal precept, should also declare unconstitutional those precepts of the same law or of an other or others with which it has a direct and necessary relation". This is the idea that Supreme Court rulings, which are interpretations of the Constitution, establish precedents that apply to all other laws making the same or related claims.

We don't have to infer this intent, either: the Supreme Court made it crystal clear. Remember, they were acting after the first vote on Article 205, section 10, so while they could not rule on that as-yet nonexistent article, they could comment on the underlying constitutional argument, and they did so clearly, as reported in a previous post.

This sparked a conflict with Congress, which refused to publish the ruling in the case (although, as noted previously here and elsewhere, rulings come into effect immediately, unlike laws which must be published). A publication by the International Commission of Jurists briefly touching on this conflict has been cited by some of those insisting Congress does have a legal right to interpret the Constitution. But the key paragraph is either badly worded, or based on misunderstanding of the contexts of action by the Congress:
However, to eliminate all doubts, on 20 January 2004, Congress adopted Decree 241-03, ratifying Decree 276-02 of 8 August 2002, providing for a reform of Article 205 of the Constitution which gives Congress the explicit power to interpret the Constitution through a decree adopted with a two-thirds majority vote in a single legislature. (emphasis added).
"To eliminate all doubts" implies that the ratification was somehow an effective action taken in response to the Supreme Court ruling. That is not why Congress passed Decreto 241-03. They passed it to continue the normal process of ratifying the amendment they had already proposed, despite the Supreme Court ruling, because they were in open rebellion against the separation of powers. By continuing with the ratification as if there were no issue, they inserted the language into the Constitution (since Congress controls that document); but they did not make an unconstitutional section constitutional. They just made the document that is the Constitution a flawed text.

The Supreme Court still has the final word on the constitutionality of laws. The amendment ratified by Congress is based on precisely the logic that the Supreme Court rejected in May 2003. The International Commission of Jurists' reports, far from endorsing the legality of the Congressional erosion of separation of powers, are centrally concerned with the lack of indepence of the Honduran Supreme Court, which since 2002 has been appointed through a process dominated by the Congress itself.

A final point to consider in relation to the Library of Congress Law Library's miserable attempt to create a post-hoc justification for what the Honduran Congress did on June 28, is that Congressional procedures include declarations that justify specific actions. When the Congress is passing laws, for example, it routinely cites its constitutionally granted power to pass laws. If it had been basing its actions on June 28 on the contested claim to generally interpret the Constitution, it would have had to say so.

The three numbered points of Decreto 141-2009 are preceded by seven itemized general principles in considerando clauses. This is where the Congress cited specific articles of the Constitution.

(It is also here, by the way, that the one trace remains of their attempt to base their actions on a forged letter of resignation; the sixth of these reads Considerando: Que el accionar irregular del Señor José Manuel Zelaya Rosales, es suficiente motivo para que este Congreso Nacional proceda a reprochar su conducta, independientemente de la renuncia interpuesta al cargo para el que fue electo; "Considerando: that the irregular action of Sr. José Manuel Zelaya Rosales, is sufficient reason for this National Congress to proceed to reproach his conduct, independently of the interposed resignation of the office for which he was elected". The reason Congress refers to Zelaya throughout as "citizen" is because they were engaging in the fiction that he had resigned. That forged resignation is what made it viable for them to claim to be following the Constitution in "replacing" him.)

Congress has rarely claimed the power to interpret the Constitution in a "Considerando" clause. Decreto 169-86, which in 1986 undertook to interpret, among other things, some of the so-called "set in stone" articles, began by saying Considering: that in conformity with the constitutional antecedents that the Republic has had, there is imposed the necessity to correct, by means of interpretation, Article 373... This was the quite unusual situation of the beginning of constitutional rule of law under the 1982 constitution, when various gaps in the constitution were evident.

Seemingly similar, but actually quite different, are the many decrees in which Congress cites its constitutional authority to interpret laws in the "considerando" section, then in the decreto itself declares the constitutional basis for a law in the form of an "interpretation" of the constitution.

For example, Decreto 58-93, concerned with aspects of military administration, begins Considering: That the privative capacity to create, decree, interpret, reform, and abolish laws in a generally obligatory way pertains to the sovereign National Congress.

Congress here only references the power it has under the Constitution, which is to decree laws and to interpret them. It then goes on, in its Decree, to establish a law, starting in Article 1 with a declaration To interpret Article 90 of the Constitution of the Republic, in its second paragraph....

This is the kind of constitutional interpretation that is not controversial, since it is limited to explaining how specific aspects of the Constitution underwrite specific laws. Congress is the body charged with enacting laws, through which the Constitution is embodied. Congress expresses its understanding of the constitutional bases through laws.

But it is the Supreme Court that determines if the laws are constitutional, because it is the Supreme Court that has the general power to interpret the Constitution. Understanding this interplay is critical for anyone living under the kind of constitutional government embodied in the Honduran Constitution; it is in fact the way the US Constitution works as well.

There is no history of, nor basis for, an "implicit" exercise of interpretation of the Honduran Constitution by the Congress. The Decreto it issued on June 28 in fact is explicit about the bases the Congress claimed in law and in the Constitution. The Law Library of the Library of Congress is simply wrong.

We can debate whether legally, the power claimed by Congress to interpret the Constitution still exists, but we do not need to wonder if that was the basis of the actions of Congress. They did not say it was. Such a claim would have made their actions on June 28 vulnerable to legal challenge before the Supreme Court based on the history of declaring unconstitutional amendments claiming to grant this power, which defines the judicial branch, to the legislative branch.

That claim is itself the essence of usurpation of powers, and violation of the form of government. Ironically, those are two of the most serious charges leveled against President Zelaya by a Congress that has made a habit of trying to usurp the power of the judiciary. Ignoring a Supreme Court ruling; refusing to publish it in La Gaceta; proceeding with ratification of an amendment that embodied an already rejected unconstitutional claim; these are actions that demonstrate disrespect for the separation of powers, and undermine the rule of law.


RAJ said...

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.

We did not publish his post when it was originally sent in (as a comment on Grade D-: Flawed Research) 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.

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:

Congress has interpreted the constitution since the court ruling. Decree 2-2005 interpreted article 205, section 19 (president signed it).

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.

The ruling did not deal with article 205, section 10, but only with article 218, section 9.

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.

Gabriel writes that the ICJ "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." 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.

Finally, Gabriel writes that It does seem as if Congress had the right to interpret even after the ruling, only not in cases relevant to the court. 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".

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.

Gabriel H. Sahlgren said...

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

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.

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!

The only body that can determine whether a “norm” is unconstitutional based on precedents is the Supreme Court.

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.

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.

There is only one institution that can decide whether a judicial precedent applies to a new article - the Supreme Court.

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.

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.

My argument doesn't fully legitimise the Law Library Report. It does, however, remove the coup de grace against it.

RAJ said...

As requested, your comment here.

But you do not remove the "coup de grace" from the arguments (plural) against the Law Library report.

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".

That is the coup de grace: the Law Library researcher made up a theory. It is grounded not in facts, but in an interpretation.

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.

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.

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.

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.