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, November 28, 2009

What has the Supreme Court really said?

One of the main developments this week was the long delayed conveyance of the Supreme Court's opinion about the issues surrounding the possible restoration of President Zelaya.

Greg Weeks is one of the few to have commented on the coverage in Honduran papers of the transmission of a report by the Honduran Supreme Court to the Congress. His summary, based on an article in the pro-coup La Prensa, concludes that the court report (which has not been released) says
Zelaya cannot be reinstated unless he faces the pending charges against him
And that this
means that Congress, which had been planning to vote on his reinstatement on December 2, won't be able to do so without contradicting the court.
Now, the report itself is not released, so any conclusions we can draw are dependent on reports in the press. So let's look at what the article Greg Weeks cited tells us (a full translation follows for those who want to check my work).

The La Prensa report is similar to others, and in particular, the direct quotes from the CSJ seem invariant even when other reports expand on the themes.

Focus in particular on what members of the court actually said.
The president of the CSJ, Jorge Rivera, declared that the Court "did not go deeply nor touch the base" of the question of the restitution or not of Zelaya, because it has cases pending against him...

He reaffirmed that Zelaya should submit himself to justice, although he reiterated that the CSJ did not pronounce in its report whether he should be restored or not.
(Another report expands on this point, quoting justice María Edith López Rivera “we cannot give an opinion because there still are legal cases pending in the Supreme Court of Justice”).

Just to underline this point, the report notes that
With the opinion of the CSJ, the National Congress now possesses the four reports that it solicited from the organs of State to base its debate, although it has clarified that those reports are not binding and that the decision about Zelaya only depends on the congressmembers. (emphasis added)
In other words: not only did the Supreme Court disclaim defining whether Zelaya could be restored-- since they would prejudice pending cases-- the National Congress has separately said that the reports it asked for were not binding on it.

Reports claiming something different based on quoted sources (as opposed to interpretations by the reporter), is a comment attributed to the spokesman of the court, Danilo Izaguirre:
"It is the same as what the Court said on the 21st of August, while he has pending reckonings with justice he cannot return to power".
This is the comment, clearly in response to an unreported question, that the English-language media, such as the AP, have played up.

But it directly contradicts what the justices themselves are quoted as saying while delivering their report to the National Congress.

Indeed, this was not what the August 21 Supreme Court opinion said; instead, like the present statements, it limited itself to insisting that the existing legal cases would have to be pursued if President Zeaya were restored:
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.
So, what the Supreme Court said then and repeats now is that President Zelaya will have to have his day in court-- the day in court he was denied by being forcibly expatriated on June 28.

Then why is the impression being given that the CSJ report constrains Congress (when the pro-coup press states clearly the reports it solicited are not binding on it) and that the CSJ made a recommendation about restoral (when the CSJ members said it isn't offering such a thing because there are cases open against Zelaya before it-- which would be prejudiced by the court making public statements now)?

In reply, we can note three contributing factors:

(1) some reports (for example, this one from the AFP) say the CSJ reached judgments on the charges against Zelaya. This repeats the original big lie tactic of the first days after the coup, when people claimed-- equally falsely-- that the bill of charges dated June 26 was a verdict by the court, rather than being the accusations submitted for its judgment.

(2) most reports (like this one in elPeriodico de Guatemala) claim that the Supreme Court told the National Congress that Zelaya could not be restored. This one can only be explained as a form of spin, given the explicit disclaimers by the court. It is often combined, as in this example, with misrepresentation of the June 26 Supreme Court order, claiming it ordered Zelaya's removal from office rather than his detention and deposition for the case brought against him.

(3) more broadly, people continue to be confused about the implications for a sitting president in Honduras of having legal charges placed against him. It would be helpful for people to review previous posts here about immunity, impunity, and impeachment, but the bottom line is, there is no impeachment because there is no immunity from prosecution; but like any other citizen, the president has a right to due process, including the presumption of innocence.

That makes the insistence of the CSJ, both in August (in its comments on the original proposed San Jose Accord) and now on reminding people that there are charges pending a little confusing. There is nothing in the legal procedures for trying a high government official that suggests he or she can be, or must be, removed from office while under prosecution-- that would require a presumption of guilt, and would seem to be a denial of due process.

But maybe this is one of those places noted in international studies where the Honduran legal system has not yet caught up with the change, made relatively recently, that introduced the presumption of innocence. Before then, a person accused of a crime had to prove his or her innocence-- and that would have made staying in office tricky.

So: we would repeat our conclusion of August here: the Supreme Court really said nothing new; and nothing that would prevent President Zelaya being reinstated. What they have noted, acting to represent their branch of government, is that he faces trial on charges. Since there is no amnesty in the Tegucigalpa-San Jose Accord, this obviously an accepted condition of possible restoral. Even if the legal cases were to proceed and reach a conviction, and that conviction were upheld on appeal, until conviction, the accused is innocent-- and could carry out his legal duties.

Oh, and the reported remarks of court spokesperson Danilo Izaguirre? assuming he was not misquoted, he was engaging in interpretation of the report, interpretation the court members themselves refrained from publicly. That interpretation presumably is based on the assumption that President Zelaya would have to be suspended from the exercise of office during trial.

The revised Penal Processual Code, Decreto 99-9-E (published in La Gaceta May 20, 2000, and effective February 20, 2002-- and therefore in use just a little more than seven years) actually has something-- well, really, everything to say-- about this, in its Title VI. This concerns measures that can be taken to ensure that the defendant is available for trial. Article 172 requires that there be sufficient reason to think someone might flee before any of the listed measures are adopted. (Remember the claim that Zelaya needed to be seized in a raid due to fear he would flee? this is why that claim was made.) Article 173 lists the available methods to ensure the defendant will not flee (or destroy evidence, a second rationale allowed). The courts can adopt "one or more" of the listed methods, which range from imprisonment to detention at home to monitoring by an officer of the court and/or periodic reporting to the court.

Number 12 on this list is
Suspension in the exercise of office, when an offense is attributed against public administration.
This is, so far, the only provision in the penal code that we have found that would imply an inability by an accused government official to remain in office while the case against him or her was heard. We could charitably assume that the conclusion Izaguirre is drawing-- against the explicit declarations of the Supreme Court justices-- is that Zelaya will not only have to undergo trial, but would need to be suspended from exercise in office. But that conclusion anticipates, and thus prejudices, any actual legal proceeding.

Which, we would remind readers, could also result in a verdict of innocent-- or else the claim that the court system is fair is entirely empty.

Whether Izaguirre also is suffering from confusion about what the procedure would have to be; or was expressing an opinion that being tried would require the president to step down; treating Izaguirre like the authoritative voice, in the face of the statements of the court justices themselves, makes no sense.

*******CSJ: Zelaya should submit himself to justice*****

The Supreme Court of Justice, CSJ, affirmed that the ex president Manuel Zelaya should submit to the trials that he has pending, which would impede the National Congress from restoring him the 2nd of December without violating the law.

A commission of four magistrates, headed by the president of the Judicial Power, Jorge Rivera, arrived yesterday at 11 AM at the Legislative Palace to turn over their report about the fifth point of the Tegucigalpa-San Jose Accord, that establishes the power of Congresss to decide whether to turn back the officeholding of the Executive to its state before the 28th of June.

In the opinion delivered to Congress, which on this coming December 2nd will debate whether or not to restore Zelaya, the CSJ reaffirmed the criteria that it issued the past 21 of August.

The magistrate Jacobo Cálix affirmed that 14 of the 15 magistrates arrived at a consensus on the document delivered to the Legislature and the the same conforms to the Constitution of Honduras and its legal framework, but he did not specify who voted against it nor why.

The president of the CSJ, Jorge Rivera, declared that the Court "did not go deeply nor touch the base" of the question of the restitution or not of Zelaya, because it has cases pending against him, but that it did contribute "the elements so that the decision could be taken".

He affirmed that the report was based "on all the deeds that were committed before the 28th of June and what has been provoked later".

He reaffirmed that Zelaya should submit himself to justice, although he reiterated that the CSJ did not pronounce in its report whether he should be restored or not.

Rivera delivered the document in the office of the secretary of the Congress together with a commission of magistrates, without specifying its content because, he said, the deputies should know it first.

"The honorable National Congress now has available the information to analyze the general context of the official and public actions of the citizen José Manuel Zelaya Rosales that will permit them to assess if the same were realized in conformity to that imposed in the Constitution of the Republic of a legal order" indicated the CSJ in a communique.

CN has the 4 reports

With the opinion of the CSJ, the National Congress now possesses the four reports that it solicited from the organs of State to base its debate, although it has clarified that those reports are not binding and that the decision about Zelaya only depends on the congressmembers.

The Public Prosecutor, Attorney General of the Republic and the National Commissioner of Human Rights, Ramón Custodio have already delivered their opinions.

The Supreme Court indicated in August, in relation to the return of Zelaya to power, that "there exist penal actions presented against him by the Attorney General of the Republic".

Therefore, it said then, "while there do not exist other applicable legal requirements, he cannot avoid that he would have to submit himself to the proceedings established in the penal processual legislation".

Zelaya has an order of capture for offenses of which he was accuses in relation with the popular poll that he intended to celebrate June 28 to promote a Constituent Assembly, when he was deposed by the National Congress, that designated Roberto Micheletti in his place.


Anonymous said...

Well, gee whiz... they arrested him once, they wouldn't let him land to face charges, and they even had them in their power a second time.

Isn't there some kind of statute that says that if the state refuses to try you three times, you're innocent?


Unknown said...

For the most part, I think this is a punt by the SC. They don't want to be the ones to make the decision, so they are kicking it back to Congress. They'll have to vote one way or the other, but I suspect they'll vote 'no'. Even if Mr. Lobo wants them to, I'm not sure he'd be able to get a majority, but I could be wrong.

RAJ said...

Victor, we disagree. Far from the Supreme Court punting, they are defining the proper role for the institution-- and saying, "you are not going to blame what happens next on us".

The call by Congress for an opinion by the Supreme Court never made sense: the Supreme Court did not, contrary to sloppy reporting, order the removal of Zelaya from his office, and (like the Armed Forces) stand to be blamed for more than they did (what they did was egregious enough: ordering the raid without any actual supporting evidence of flight risk, for example).

Because the Supreme Court on June 29 declared that the charges against Zelaya were no longer their business (accepting the Congressional actions of June 28 removing him from office), technically, they have no role in any court cases against him-- so it is actually curious that they insist that he must stand trial. But then, they are not insisting he stand trial before the Supreme Court.

What they are saying, jurisdictionally, is that since they currently have cases they have yet to rule on about the June 28 removal from office itself they would be prejudicing a current case if they offered an opinion about Zelaya's restoral. These cases were brought by lawyers in Honduras, contesting the congressional claim of constitutional authority to remove Zelaya from office. The Supreme Court has repeatedly asked Congress to send a report explaining why they think they had the authority to remove Zelaya from office. Congress has not done so.

So: the Supreme Court is saying to Congress, "you got us into this mess, you get us out of it"-- while providing their legal opinions on the various issues, short of reaching a conclusion.

As for whether Pepe Lobo will lead the Congress in a vote for restoral: he has a lot to gain by trying to do so, and nothing to lose (if the vote runs in his favor). He could portray himself as magnanimous; he was not one of the leading voices on June 28, and he has been trying to run away from the decision taken that day. So again-- we are not as sure as you seem to be that Congress will vote against restoral.

After all: what the court is saying is that the pending cases against Zelaya will immediately pick up; and if he is restored as President, presumably jurisdiction in these cases would revert to the Supreme Court from the lower ordinary courts.

All the Congress needs to do is issue a Decreto saying "we rescind what we did on June 28". They don't have to admit illegality-- they can simply say, we now have better information and realize Zelaya should have stood trial.

And-- and this is a big point-- Zelaya has said he will not accept a restoration now, since it would contribute to white-washing the election. So there is little risk for Lobo if he wants to lead his faction in Congress in a gesture, which will be hollow anyway, and has been pre-rejected.