More US spin on Honduras...

is brought to you by Voice of America, which starts its story from this morning with the following headline and tagline:

Honduran Congress Grants Zelaya, Coup Plotters Amnesty

Supreme Court also clears military of criminal charges; both moves seen as steps toward national reconciliation before President-elect Lobo takes office Wednesday.

Really? seen as "steps toward national reconciliation" by whom?

From the very first version of the US-inspired San Jose Accord, there has been a proposal for amnesty in the agreements that were proposed to end the coup.

Just as consistently, both sides in Honduras have rejected the call for amnesty. Some English-language commentaries suggested this was due to the fierce animosity between the two sides, and the desire by both to keep open the possibility for revenge prosecution.

But as we are seeing now, the issue for Hondurans is actually a good deal more complex than amnesty/no amnesty. Papered over in the VOA story is the continued uncertainty about the status of the additional bill of charges against President Zelaya, produced after the installation of the coup regime, which are not covered by this amnesty. The amnesty, as we noted in the previous post, is for specific identified crimes, those considered "political" or connected to them.

The debate in congress and the party-line split vote reveal major disagreement about the best way toward "national reconciliation" within the Congress itself.

What we are seeing in the spin given these moves by VOA is the US perspective. The US insists that Honduras go through a theatrical performance of enacting the Tegucigalpa-San Jose Accord even though that brokered compromise absolutely failed and is utterly irrelevant now. One hopes the US State Department doesn't suffer the illusion that Zelaya will not be prosecuted when he eventually returns to Honduras, because if so, they will likely be disappointed.

It is perhaps not too much to treat the VOA article as a proxy for how the US State Department would like to rewrite the story of the coup. From that perspective, two further things leap out.

First, in reporting on the shameless use of the Supreme Court as a mechanism to cleanse the Armed Forces of all responsibility for their actions on June 28, the VOA states that the Court found that the Armed Forces "acted to preserve peace in Honduras". That is certainly part of the court's argument; but by selecting that piece, and leaving out the part about the Armed Forces not acting out of "malice", the VOA gives a tweaked impression of the arguments being offered to justify the Armed Forces violating the Constitution as well as exceeding the Supreme Court warrant produced to justify their actions.

Bad enough that good intentions alone can clear the military of wrong-doing (thus creating a precedent for future interventions in government "to preserve peace". Are you listening, Pepe?) But perhaps it would be worth paying attention to the fact that the Honduran stakeholders feel there is something more involved: the question of whether people were motivated not just by their better angels, but by "malice". This is not a conflict that will be sanitized by formalized actions.

Which is, in essence, what the Congressional debate over "amnesty" showed. In our post from yesterday, we simply reported that the Liberal party abstained. The real story is more complicated, as Tiempo reported in the article we linked to in the previous post:

The Liberal Party abstained from voting because they could not come to agreement, since only 8 had defined a position (five against and three in favor), while among the rest there were diverse positions on the sense that it was necessary to know in depth the reach of the project [of amnesty], to socialize the decision more, to listen first to the Truth Commission and then consult the people in a plebiscite.

(For the public consultation observers out here, that would be consultar el pueblo en un plebiscito...)

In other words: the Liberal Party congress members are wary of how the Honduran public will react. As the party that occupied both sides in the coup, they have been burned the most by the political fallout. And they are worried about who this will affect, what the public will think about it, and how it will harmonize with the expected Truth Commission. Better to get the public to ratify it and relieve the political pressure.

And the second thing that leaps out in the VOA article: even to the bitter end, the English language media still think the real cause of this coup was a non-existent attempt to prolong the current Presidential term in office; as the last sentence of this meretricious piece of writing sums up the whole sordid seven months

Mr. Zelaya's opponents say he was ousted because he was trying to illegally change the constitution to extend his term in office. [emphasis added]

And VOA, like the US State Department, gives those "opponents"-- the architects of the coup-- the last word.

**********
[Nerdy word usage aside here: technically, the verb "socializar" has two meanings, the first to privatize something, as in State seizure of property, and the second

Promover las condiciones sociales que, independientemente de las relaciones con el Estado, favorezcan en los seres humanos el desarrollo integral de su persona

To promote the social conditions that, independently of relations with the State, favor in human beings the integral development of their persons.

The closest to the sense here would be that the Liberal Party congress members feel the need to promote the idea of amnesty among Honduran society, to introduce it as a social value that presumably they are not sure already exists. In other words, they are dubious that amnesty is part of the Honduran habitus.

Could There Have Been a Different Outcome?

While the US may still have hopes of reviving the corpse, the Tegucigalpa-San Jose Accord seems to be quite dead. The Frente de Resistencia has declared a boycott of the national elections scheduled for November 29, even if somehow President Zelaya were restored in the next 18 days, and in truth, it is hard to see how anyone can claim elections under the current conditions will be free, fair, and transparent-- the conditions the US originally set for recognition, although with recent statements it is clear that the only US "condition" for recognition is that a semblance of elections be carried out.

So the question occurs to us: was this inevitable? leave aside the criticism of the waffling, muddied messages, and speaking silences of the US State Department that always came just when it seemed the de facto regime was getting clear on what was necessary for the international community to be satisfied. Was there ever any solution to this crisis, once the coup architects started on their Plan A without any Plan B?

In retrospect, we think that a key mistake was ever negotiating with Roberto Micheletti. Not that anyone could have quite realized at the time how intransigent he would be personally: that kind of unpredictable personality is a risk in any negotiation. But because doing so not only gave him and the regime that he consolidated undue legitimacy, elevating them to the equivalent of the constitutional President and his cabinet; it also allowed Micheletti to consolidate executive power within Honduras.

Am I suggesting the international community should simply have given Honduras an immediate cold shoulder? hardly. But if we ask ourselves, on June 29, who in the Honduran government still exercised power with a constitutional mandate, then we can identify the Congress and yes, even the corrupt and unjust Supreme Court as branches of the government with which the international community could have initiated more productive dialogue, as these bodies have something to lose, while Roberto Micheletti, once he cast his lot with the coup architects, could not reverse course.

At the time, of course, international representatives did refuse to talk to the de facto regime's new head. This was one of the things the Micheletti regime complained about. But instead of continuing to isolate the illegally installed executive officers; instead of opening and sustaining a dialogue with the Congress, which we now know includes a substantial group against the coup, and a majority we suspect wishes the coup never happened; the US pushed for a mediated dialogue directly between Micheletti and Zelaya.

Remember that the original San Jose dialogue forced the legally elected President to accept negotiating directly with an unconstitutional usurper? It was that moment that gave Micheletti authority. Not the military intervention on June 28, that was by all accounts initiated by a cabal of business interests spear-headed by political masters not currently holding elected office.

The ringleaders of the coup, people like Carlos Flores Facussé, former president and current business leader, are by definition pragmatists. If, at the beginning of the international intervention, Micheletti-- who we have seen reveal himself as an honest ideologue (however misguided we find his ideological positions to be)-- had been isolated, discussions had taken place with Congress, and back-channel communication with the pragmatists in the cabal was carried out, no legitimacy would have been conferred on the usurping executive officers, and a wider array of interests could have been encouraged to consider what they stood to lose.

Once Micheletti was treated as Zelaya's equal, the course of negotiations was almost certainly headed for deadlock. Worse: the first draft of the San Jose Accord gave the Micheletti executive branch too much credence. Inserted in that document, which emerged as the basis for the Tegucigalpa Accord, were items that presumed the guilt of President Zelaya in matters that were (still are in fact) live subjects of legal proceedings in Honduras. So the spin given the San Jose Accord, even in its unsigned state, in Honduras was that Oscar Arias recognized that Zelaya was trying to change the constitution to stay in power.

What if, instead, negotiations had taken place with the Honduran Congress? it was Congress, after all, that made Micheletti de facto executive; it was Congress that accepted a forged resignation letter; it was Congress that issued a Decree removing Zelaya from office without citing any constitutional basis for that action. Congress, as an institution, has lost more from the coup than the presidency, as an institution. And all of the members of Congress were duly elected by the Honduran people; they represent a significant variety of positions; and they have something lasting to lose if the elections of 2009 are not recognized.

Micheletti, having achieved his long-term goal of exercising executive authority (although he will never have the title "President" legally), cannot run for President in the future, under the Constitution he claims to be defending. He of course can return to Congress and run and, given the nature of Honduran politics, count on staying in Congress as long as he wants; but he probably won't find enthusiastic welcome from other politicians there who will not want to be tainted by association. (Think of the way Elvin Santos, the presidential candidate from Micheletti's own Liberal Party, has tried to distance himself; now multiply it by 64.)

So Micheletti literally has everything to lose in negotiating, and nothing to gain; and thus rhetorically has nothing to lose by, as he has, continually perverting, subverting, or simply rejecting any negotiated settlement.

How to create unity and reconciliation (not)

The apparent unilateral intention of Roberto Micheletti to single-handedly decide who will form the government of "unity and reconciliation" exposes yet again the weakness of the Tegucigalpa Accord, including the lack of clear causal links between points and the absence of a separately enumerated deadline for action on "point #5" (the only way Micheletti's representatives can bring themselves to refer to restoration of President Zelaya) in the timetable.

Micheletti's adherents are claiming that point 1 (forming the interim government) and point 5 (returning the executive power to its situation prior to June 28) are somehow unrelated. So Micheletti is taking steps to form the "Government of Unity and National Reconciliation" all by himself, generously extending what his representatives say is the unrequired courtesy of consultation to Zelaya.

Let's review what Point 1 of the Accord says:

To achieve reconciliation and strengthen democracy, we will form a Government of Unity and National Reconciliation made up of representatives of the various political parties and social organizations, recognized for their capabilities, honesty, aptness, and willingness to dialogue, who will occupy the distinct secretariates and subsecretariates, as well as other dependencies of State, in conformity with article 246 and following of the constitution of the Republic of Honduras.

What does this imply? how should it be interpreted? and who should interpret it? All are undefined. And that's where the trouble has started.

Let us start with the timetable, and remind ourselves of what was supposed to happen so far:

*30 of October of 2009
1. Signing and entry into effect of the accord.
2. Formal delivery of the accords to Congress for the effects of point 5, of "Executive Power".

These steps were done. But notice that, although the Accord was delivered to Congress on October 30 specifically to set in motion the consideration of restoral of President Zelaya, the Congress has stonewalled and delayed, seeking more reports than are called for in Point 5 of the Accord (which stated they should previously have a report from the Supreme Court).

*2 of November of 2009
1. Appointment of the Verification Commission

Appointments have indeed been made. But what is their role? As defined in Point 6 of the Accord

The Verification Commission will be charged with giving witness of the strict completion of all of the points of this Accord, and will receive for this the full cooperation of Honduran public institutions.

They are to witness. And oh, what they are already witnessing.

While Congressional leadership defers considering restoral of the Executive Power, the de facto regime is blithely at work meeting the next deadline in the Accord, under the theory that Point 1 is unrelated to Point 5, that there can be a partial implementation of the framework while what has always been the principal issue remains unresolved:

*Beginning with the signing of the present Accord and no later than the 5 of November
1. Appointment and installation of the Government of Unity and National Reconciliation

So, in theory, by tomorrow there needs to be the final definition of the government; and since Congress feels no obligation to conclude its deliberation over restoring Zelaya any time soon, Micheletti has decided in the meantime, he is the president and it is his reconciliation and unity government. Which leaves him deciding who to consult.

It seems self-evident that the intention was to have Congress consider restoration of President Zelaya starting on October 30, so that a week later, there would already have been resolution of this point and he would either have been the person overseeing the constitution of the interim government, or not.

Disputes in interpretation between the signatories in theory should be resolved by the Verification Commission, as called for in the first paragraph of point 8 of the Accord; but notice the clause in there that says this should be "in keeping with the Constitution and legislation" of Honduras:

Any difference in interpretation or application of the present Accord will be submitted to the Verification Commission, which will determine, in keeping with that disposed in the Constitution of the Republic of Honduras and in the legislation in effect and through an authentic interpretation of the present Accord, the solution that corresponds.

As if interpretation of the laws and constitution were not central to the disputes that led to the coup, and the continued crisis since then.

In case the message wasn't clear, that what the Accord means will be subject entirely to interpretation within Honduras, in fact point 8 goes on to tell the international community to back off and stop interfering in "the internal affairs" of Honduras:

Taking into account that the present Accord is a product of the understanding and fraternity among Honduran men and women, we ask vehemently that the international community respect the sovereignty of the Republic of Honduras, and fully observe the time-honored principle in the Charter of the United Nations of non-interference in the internal affairs of other States.

Every version of what started as the San Jose Accord has been full of proposals that favor the de facto regime, such as retaining the budget passed during the interim; propositions that presume Zelaya was guilty of what his opponents accused him of; and each has been missing any acknowledgment of the human rights violations that occurred and that surely must some day be accounted for. Even the "Truth Commission" is not intended to address violations of civil and human rights, but rather, is the response to the de facto regime's shrill insistence that "if only you let us explain what happened before the coup, you would see we had no choice".

So: the international community gets what it deserves. A sloppy and poorly constructed "agreement" that clearly one side has no intention of adhering to, that gives enough room for that side to claim its interpretation is the correct one.

Zelaya Pushes Monday Decision

The Zelaya negotiating team has asked Congress to decide on Monday. "We are not asking them to pronounce for A or B, just to pronounce. One power of state cannot place obstacles for another power of state; they have to act in a rational form," said Rasel Tomé. "We are asking the Honduran people to go to the houses of Congressmen, or call them on the phone and ask them to Monday form the corresponding session."

Congress is in recess until after the November 29 elections, and so an extraordinary session is needed. To wait for an ordinary session will take months. An extraordinary session can be convened by the President (Micheletti), the executive council of the Congress(headed by Saavedra), or by a simple majority (65) of the Congressmen according to the Constitution and Rules of Congress.

Article 191 says "Five Congressmen can convene an extraordinary session of the National Congress in any part of the Republic when the Executive, other authority, force, or fortuitous cause impedes the installation or celebration of its sessions."

Meanwhile, the Secretary of Congress, Ramón Velásquez Nazar, says that the accord will be presented to Congress on Tuesday. It is the Secretary's responsibility to take the incoming "mail", which is how the accord is classified, and convey it to the President of Congress, Jose Alfredo Saavedra. "It won't be until Tuesday because I'm running for re-election as Congressman and this weekend I need to visit my supporters in various communities. Monday is the Day of the Dead and I have obligations in my town."

Tegucigalpa-San Jose Accord: A translation

Preamble

We, Honduran citizens, men and women convinced of the necessity to strengthen the state of law, to aid our constitution and the laws of our Republic, deepen democracy and assure a climate of peace and tranquility for our people, have carried out a frank and intense process of political dialogue to seek a negotiated and peaceful exit to the crisis in which our country has been submerged in recent months.

As fruit of this dialogue in which has predominated the wisdom, tolerance, and patriotic spirit of all the participants, we have drafted a political accord that will permit the reestablishment of civic harmony and assure a proper climate for democratic governability in our country. This accord, we are sure, will define the road to peace, reconciliation, and democracy, urgent demands of Honduran society.

The agreement on this accord demonstrates yet again, that Honduran men and women are capable of successfully carrying out dialogue and thanks to that and by means of it, reach the high goals that society demands and the country requires.

In virtue of the forgoing, we have agreed on the following accords:

1. ON THE GOVERNMENT OF NATIONAL RECONCILIATION AND UNITY

To achieve reconciliation and strengthen democracy, we will form a Government of Unity and National Reconciliation made up of representatives of the various political parties and social organizations, recognized for their capabilities, honesty, aptness, and willingness to dialogue, who will occupy the distinct secretariates and subsecretariates, as well as other dependencies of State, in conformity with article 246 and following of the constitution of the Republic of Honduras.

In light of the fact that before the 28 of June, the Executive Power had not submitted a General Budget of Income and Expenses for consideration to the National Congress, in conformity with that established in article 205, number 32 of the Constitution of the Republic of Honduras, this government of unity and national reconciliation will respect and function on the basis of the general budget, recently approved by the National Congress for fiscal year 2009.

2. ON RENOUNCING THE CONVOCATION OF A NATIONAL CONSTITUENT ASSEMBLY OR REFORMING THE UNREFORMABLE ARTICLES OF THE CONSTITUTION.

To achieve reconciliation and fortify democracy, we reiterate our respect for the Constitution and the laws of our country, abstaining from making calls for the convening of a National Constituent Assembly, in direct or indirect manner and renouncing also promoting or aiding any popular poll with the goal of reforming the Constitution in order to permit presidential re-election, modify the form of government or contravene any of the irreformable articles of our Magna Carta.

In particular, we will not make public declarations nor exercise any type of influence inconsistent with articles 5; 373 and 373 [sic: 374?] of the Constitution of the Republic of Honduras, and we reject energetically every manifestation contrary to the spirit of said articles and of the special law that regulates the referendum and the plebiscite.

3. ON THE GENERAL ELECTIONS AND THE TRANSFER OF GOVERNMENT

To achieve reconciliation and fortify democracy, we reiterate that, in conformity with the articles 44 and 51 of the Constitution of the Republic of Honduras, the vote is universal, obligatory, egalitarion, direct, free and secret, and it corresponds to the Supreme Electoral Tribunal, with full autonomy and independence, to supervise and execute everything related to the electoral acts and processes.

At the same time, we make a call to the Honduran people to peacefully participate in the next general elections and to avoid all kinds of demonstrations that would oppose the elections or their results, or promote insurrection, antijuridical conduct, civil disobedience or other acts that could produce violent confrontations or transgressions of the law.

With the goal of demonstrating the transparency and legitimacy of the electoral process, we ask urgently that the Supreme Electoral Tribunal that it authorize and accredit the presence of international missions from now until the declaration of the results of the general elections, as well as the transfer of powers that will take place, in conformity with Article 237 of the Constitution of the Republic, the 27 of January of 2010.

4. ON THE ARMED FORCES AND NATIONAL POLICE

To reach reconciliation and fortify democracy, we affirm our will to comply in all its measures with article 272 of the Constitution of the Republic of Honduras, according to which the Armed Forces remain at the disposition of the Supreme Electoral Tribunal from one month before the general elections, for the purpose of guaranteeing the free exercise of suffrage, the custody, transparency, and guarding of the electoral materials and all the other aspects of security of the process. We reaffirm the professional, apolitical, obedient and non-deliberative character of the Honduran Armed Forces. In the same way, we agree that the national police should be strictly subject to that prescribed in its special legislation.

5. ON EXECUTIVE POWER

To achieve reconciliation and fortify democracy, in the spirit of the themes of the proposed San Jose Accord, both negotiating commissions have decided, respectfully, that the National Congress, as an institutional expression of popular sovereignty, in the use of its powers, in consultation with the points that the Supreme Court of Justice should consider pertinent and in conformity with the law, should resolve in that proceeding in respect to "return the incumbency of Executive Power to its state previous to the 28 of June until the conclusion of the present governmental period, the 27 of January of 2010". The decision that the National Congress shall accept should lay the foundations to achieve social peace, political tranquility and governability that society demands and the country needs".

6. ON THE VERIFICATION COMMISSION AND THE TRUTH COMMISSION

To achieve reconciliation and fortify democracy, we are disposed to the creation of a Commission of Verification of the promises assumed in this Accord, and of those that shall derive from it, coordinated by the Organization of American States (OAS). Said commission will be made up of two members of the international community and two members of the national community, these last will be sought one by each of the parties.

The Verification Commission will be charged with giving witness of the strict completion of all of the points of this Accord, and will receive for this the full cooperation of Honduran public institutions.
Incompletion of any of the commitments contained in this Accord, proven and declared by the Verification Commission, will produce the activation of measures that the Commisssion will establish against the transgressor or transgressors.

With the goal of clarifying the deeds that occurred before and after the 28 of June of 2009, there will also be created a Truth Commission that will identify the acts that led to the present situation, and provide to the Honduran people elements to avoid that those deeds will be repeated in the future.
This Commission of Dialogue recommends that the next Government, in the framework of a national consensus, constitutes the said Truth Commission in the first half of the year 2010.

7. ON THE NORMALIZATION OF RELATIONS OF THE REPUBLIC OF HONDURAS WITH THE INTERNATIONAL COMMUNITY

On committing ourselves to faithfully comply with the promises assumed in the present Accord, we respectfully ask the immediate revocation of those measures and sanctions adopted at a bilateral or multilateral level, that in any manner would affect the reinsertion and full participation of the Republic of Honduras in the international community and its access to all forms of cooperation.

We make a call to the international community that it should reactivate as soon as possible the projects of cooperation in effect with the Republic of Honduras and continue with the negotiation of future ones. In particular, we ask urgently that, on the request of competent authorities the international cooperation be made effective that might be necessary and opportune for the Verification Commission and the future Truth Commission to assure the faithful completion and follow-through of the commitments acquired in this Accord.

8. FINAL DISPOSITIONS

Any difference in interpretation or application of the present Accord will be submitted to the Verification Commission, which will determine, in keeping with that disposed in the Constitution of the Republic of Honduras and in the legislation in effect and through an authentic interpretation of the present Accord, the solution that corresponds.

Taking into account that the present Accord is a product of the understanding and fraternity among Honduran men and women, we ask vehemently that the international community respect the sovereignty of the Republic of Honduras, and fully observe the time-honored principle in the Charter of the United Nations of non-interference in the internal affairs of other States.

9. CALENDAR OF COMPLETION OF THE ACCORDS

Given the immediate entrance into effect of this accord from the date of its signing, and with the goal of clarifying the timetable for completion and follow-through of the commitments acquired to reach national reconciliation, we agree on the following calendar of completion:

*30 of October of 2009
1. Signing and entry into effect of the accord.
2. Formal delivery of the accords to Congress for the effects of point 5, of "Executive Power".

*2 of November of 2009
1. Appointment of the Verification Commission

*Beginning with the signing of the present Accord and no later than the 5 of November
1. Appointment and installation of the Government of Unity and National Reconciliation

*27 of January of 2010
1. Celebrate the transfer of government

*First half of 2010
1. Formation of the Truth Commission

10. FINAL DECLARATION

In the name of reconciliation and the patriotic spirit that has convened us at the table of dialogue, we commit to complete in good faith the present Accord and that which derives from it.

The world is witness to that demonstration of unity and peace, to which we commit our civic conscience, and patriotic devotation. Together, we shall know to demonstrate our valor and determination to fortify the State of Law and construct a tolerant, pluralistic, and democratic society.

We sign the present Accord in the city of Tegucigalpa, Honduras, the 30th of October of 2009.

11. ACKNOWLEDGMENT

We take advantage of the occasion to thank the accompaniment of the good offices of the international community, in particular the OAS, and its Secretary General, Jose Miguel Insulza, the Missions of Chancellors of the Hemisphere; the President of Costa Rica, Oscar Arias Sanchez; the ultimate government of the United States, its president Barack Obama; and its Secretary of State, Hillary Clinton.

12. ON THE ENTRY INTO EFFECTIVENESS OF THE TEGUCIGALPA/SAN JOSE ACCORD

For internal effects, the Accord has full effectiveness from its signature.

For effects of protocol and ceremony, there will be carried out a public act of signing on the 2nd of November of 2009.

Tegucigalpa, Municipio del Distrito Central, 30 of October of 2009

(Spanish language source here. Another translation by cadejo4 here.)

Failure and A Public Proposal

( all times Tegucigalpa local time)
The talks broke down today without a resolution. El Tiempo reports that both negotiating teams left the hotel shortly after 4 pm Tegucigalpa time without talking to the gathered reporters, for consultations with Zelaya and Micheletti. There is no indication when, or if, talks will resume at this time, although both sides in their last public comments, indicated that talks would continue.

At about 5:30 pm, Victor Meza, on Radio Globo, called the proposal of Micheletti "absurd".Micheletti has proposed that the Supreme Court decide the issue of resititution. Zelaya decided to go public with his own suggested solution so that there is no confusion. He has suggested that Congress, not the Supreme Court, validate the agreement, including Zelaya's restitution. Everything should go back to the way it was before June 28. "Congress in the place to resolve political issues, not the courts," said Meza. "Once signed, the San Jose accord enters into effect immediately," Meza continued. Meza added that they expected the Micheletti delegation to reply today.

At 6 pm. Rafael Pineda Ponce, with Myrna Castro replied for the Micheletti delegation that the Executive could not reply for the Legal, and called for more dialogue. He maintained that the Supreme Court had jusidiction of this issue (restitution). The Supreme Court might pardon Zelaya, it might condem him. Pineda Ponce argued that the Supreme Court needed to complete the process it started hearing the case against Zelaya, and rule. Pineda Ponce refused to answer the question as to why Zelaya was exiled on June 28 if they wanted him to be tried.

6:42 pm: Vilma Morales: "more talk, not deadlines." Corales: "We need to talk into the weekend." Oh, and the Zelaya commission has until Monday to accept the Micheletti proposal because the Micheletti commission is going home for the weekend.

Final Proposal Being Floated

Radio Globo reports that the Micheletti delegation is making their final offer at this moment in the Hotel Clarion. Their 3 hour extension expires at 4 PM, Tegucigalpa time, about 40 minutes from now.

Just a side note about Voice of America spin

My academic writing is calling, and before I get there I have an update to post on the Aaron Schock Library of Congress Law Library report.

But since the little things also matter, I wanted to briefly point to an odd language game in a VOA story about the gassing of the Brazilian Embassy:

The international community has refused to recognize the interim government and has called for Mr. Zelaya to be reinstated with limited power until a presidential election is held.

Well, no. The international community (OAS, EU, UN) has called for Zelaya to be reinstated. Period. And until the end of of his term, which is in January 2010, not "until a presidential election is held".

The "limited power" thing? that is part of the Oscar Arias-negotiated, US State Department-inspired, San Jose Accord. It is one of the many unpalatable things about the San Jose Accord that President Zelaya should not have had to accept, but which he in fact did, despite the fact that the "limited power" business basically accepts the counter-factual claims of the de facto regime that Zelaya has evil intentions. (This theme has now, as the November election nears, changed into insinuations that Zelaya plans to "disrupt" elections-- but that gets us back to the astonishing Representative Aaron Schock, and on to the real post for the day.)

Do we have a right to demand that US-sponsored media, like US-sponsored research services, get the details right?

An Interview with President Zelaya

La Jornada de Mexico has the first published coverage available on the internet from the recent interview with Zelaya at the Brazilian embassy.

Possibly the biggest news item in the press interview is Zelaya's statement that OAS Secretary General José Miguel Insulza will travel to Honduras to mediate face-to-face talks.

Yo he regresado con el fin de buscar un arreglo pacífico de frente, para que el diálogo sea en mi propia tierra y en mi propio pueblo.

I have returned with the purpose of seeking a peaceful arrangement face to face, so that the dialogue will be in my own country and among my own people

Las fuerzas armadas deben apuntar sus rifles a los enemigos del pueblo y no contra el pueblo

The Armed Forces should point their rifles at the enemies of the people and not against the people

While the US State Department may have preferred him to stay out of Honduras and wait for non-existent progress in the moribund Arias mediated "negotiations", Zelaya makes an important claim here: even the worst coup apologists have had to admit his expulsion from the country was a constitutional violation.

The Supreme Court order for his detention June 28 actually was based on a claim he was a flight risk. Pro-coup apologists delight in claiming that President Zelaya cannot return because he would be arrested on both this order and a trumped-up list of 18 "charges" since the de facto regime was installed. But this ignores his actual desire to return to the country, where he would have the right to due legal process and to fight the charges against him, which many constitutional law professors have argued are procedurally and factually flawed. As noted here, the Supreme Court had not yet arrived at the point of trying, much less convicting, Zelaya, and while there were administrative charges that could be argued to have some basis, representing these administrative issues as the basis of charges of "treason" was overwrought.

The amnesty provision in the San Jose Accord is as much, or more, about protecting the coup architects from prosecution.

With Zelaya back in the country, negotiations could proceed without the baggage of that proposal, which gave away so much to the coup regime that it hardly made sense for Zelaya to agree to it. His presence in national territory allows for the participation of civil society in ensuring that there are negotiations; it raises the pressure on the Armed Forces, which desperately wants not to be smeared by their participation in the coup; and it may open a way for the factions within the coup and de facto regime that have tried to open up some breathing room to move more decisively away from Micheletti.

Could it be true? Reports of US sanctions being enacted

A correspondent pointed us to a posting on the Libertad de Expression Listserve citing a Mexican journalist, Jacobo Zabludosky.

And now Radio Globo is broadcasting the same story, being picked up by a variety of Spanish language news sources in Mexico and Brazil.

Meanwhile, the State Department website confirms reports in the Honduran Press that beginning tomorrow, the Honduran Embassy will not issue new visas to any Hondurans applying for them.

[Update: The New York Times story on this action posted at 7:24 PM cites A U.S. official who spoke on condition of anonymity saying Washington was considering other steps though it was premature to disclose these. Can we hope there might be something to the Mexican journalist's report, below?]

[The NYT article cites Human Rights Watch as calling for more US economic sanctions calling for the Obama administration should directly target members of the de facto government by denying them access to the U.S. banking system and targeting private companies associated with these officials. Human Rights Watch spoke out this week after a group of scholars and activists published an open letter calling for them to take a firmer stand. See Adrienne Pine's letter thanking HRW for taking that action.]

Radio Globo reports that Ambassador Hugo Llorens has been ordered by the State Department not to return to Tegucigalpa.

So take this as either an actual breakthrough or a rumor that tells us what the world community thinks would be the most effective actions against the regime.

Update: Since the OAS commission has now come and gone without evident effect, the last rationale the US had for waiting to act has been removed. Adrienne Pine has published an important statement by 20 Liberal Party congress members who condemn the coup, and call for the signing of the San Jose Accord. These individuals are taking enormous risks, and one hopes the US will not leave them exposed for no reason.

Meanwhile, the police and military are reportedly meeting NOW with Canahuati-- which could be the break, the conversation about removing the one barrier to accepting the San Jose Accord, Micheletti. [Update: live reports on Radio Globo say Micheletti has tripled the guard around his house to more than 50.]

Here is what Zabludovsky said the US sanctions could be; Radio Globo claims the suspension of remittances, one of the main economic supports of Honduras even before the coup, will be in place tomorrow, without citing a source for this:

1. Desconocimiento total del presidente que resultase de las elecciones realizadas bajo el régimen de facto.

[Complete rejection of recognition of any president from elections carried out under the de facto regime]

2. Suspensión total de toda la ayuda económica que todavía Los Estados Unidos están aportando a Honduras.

[Total suspension all economic aid still being given by the US to Honduras]

3. Congelamiento de cuentas bancarias personales de cada uno, y de todos, los golpistas en Los Estados Unidos y en cualquier parte del mundo donde quiera que se hallan registradas.

[Freezing of bank accounts of each one, and of all, the golpistas in the US and in any part of the world where they might have been registered]

4. Congelamiento total del envió de todo tipo de remesas en dinero a Honduras.

[Freezing of all remittances of any type to Honduras]

5. Suspensión de todas las importaciones y exportaciones a Honduras.

[Suspension of all imports and exports to Honduras]

6. Retirar a Honduras del tratado preferencial para las exportaciones de sus productos, incluso de la producción maquilera.

[Removing from Honduras preferential trade status for the export of its products, including products from maquilas]

Update: El Heraldo is confirming today (8/25) that Ambassador Hugo Llorens has been recalled.

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.

When is a "Green Light" really Red: "Amnesty" and the National Congress

La Tribuna de Honduras published an article early today headlined "National Congress gives green light to amnesty".

Hurrah! celebrations should break out! a roadblock is cleared, the San Jose Accords can be signed, Zelaya can be returned.

Um, not so fast (again): the long statement contains some not-so-hidden reservations.

First, here is the executive summary provided at the end of the statement:

Esta comisión es del criterio que:
-La atribución de conceder amnistía corresponde al Poder [Legislativo]*

-De existir un acuerdo definitivo acordado por las partes, este poder deberá expresar su voluntad política de emitir el acuerdo de amnistía

-La amnistía deberá circunscribirse exclusivamente a los delitos políticos con ocasión de este conflicto antes del 2009

-El compromiso que se adquiera deberá ceñirse a la constitución y sus leyes.

[This commission is of the judgment that:

-The attribution to concede amnesty corresponds to the [Legislative] Power*

-If there exists a definitive agreement, agreed to by the parties, this power ought to express its political will to issue an amnesty accord

-The amnesty should be exclusively circumscribed to the political offenses that are the occasion of this conflict before 2009

-The compromise that is reached ought to bind itself to the constitution and laws.]

*While the published summary literally says "Executive Power", I assume that was an error, because the actual long statement says this is an attribute of the Legislative Power. I don't think the Congress is that devious, and the Constitutional article they reference, Article 205, No. 16, is the one that specifies the powers of Congress, including:

16. Conceder amnistía por delitos políticos y comunes conexos; fuera de esta caso el Congreso Nacional no podrá dictar resoluciones por vía de gracia

(to concede amnesty for political crimes and common crimes connected to them; outside of this case, the National Congress cannot dictate resolutions of pardon; highlighting mine)

The highlighted clause in the Constitutional grant of power is critical here, because the National Congress, in its "green light", actually explicitly excluded any common crimes that might have been connected to political crimes. The actual San Jose Accord language calls for an amnesty for political crimes as defined in this same Constitutional clause; but the National Congress cited the wording in the Accord itself, which lacks the critical "and common crimes connected to them" part, so as to declare that they would grant amnesty only for certain specific crimes that they define as political.

As the prosecutor continues to bring trumped-up charges against President Zelaya for such things as fraud and drug-trafficking (remember that one?) the language here is clearly intended to allow the regime to continue prosecution on those and any other offenses they deem not "political". This is why the constitutional clause has that addendum, and overlooking it in the language of the San Jose Accord is yet another example of how Oscar Arias really produced an inadequate text by taking on board too much of the Micheletti regimen's language.

Congress helpfully specified precisely which offenses it considered political, and would therefore agree to amnesty for in the event that someone else negotiated an agreement:

los delitos políticos están taxativamente enunciados en el artículo 13-A del Código Penal Vigente, es decir, los capítulos I, II y III del título XI; los capítulos I, II y III del título XII; y los capítulos V, VI y VII del título XII

(political offenses are exhaustively enumerated in Article 13-A of the Penal Code, that is to say, chapters I, II and III of Title XI; Chapters I, II and III of Title XII; and Chapters V, VI and VII of Title XII)

Article 13-A actually contains, immediately following the enumeration of the cited sections, the missing language about connected common crimes:

Son delitos comunes conexos con políticos los que tengan relación directa o inmediata con un delito político o sean un medio natural y frecuente de preparar, realizar o favorecer éste

Common crimes connected with the political ones are those that have a direct or immediate relation to a political crime or that would be a natural and frequent means to prepare, carry out, or favor these [political crimes]

The omission is surely not accidental. The regime is honing its skills in double-speak more every day.

There is also something curious in the delimitation of political crimes by the National Congress; these include Treason (Title IX, Chapters I-III) the main political crime contained in the original complaint against Zelaya by the Public Prosecutor discussed in a previous post.

But the cited sections of the penal code also include Offenses against Internal Security of the State, Against the Form of Government, Terrorism, Rebellion and Sedition (Title XII, Chapters I-III and V-VII), sections that explicitly sanction violence toward the President. Crimes "Against the Form of Government" also are part of the Public Prosecutors' June 26 complaint against President Zelaya, so the points of complaint are reduced to at most two: Abuse of Authority and Usurpation of Powers. (The added points of charges filed since June 28 should be irrelevant under the San Jose Accord since it calls for reverting to conditions as of that date.)

But Congress notably skipped Title XII, Chapter IV.

Why? The title of this chapter is "Offenses committed by officials against the exercise of rights guaranteed by the constitution". It would include sanctions for the crimes against civil rights that are occurring every day in the country; it also includes expatriation. I pored through this section, expecting to see crimes of which President Zelaya has been accused; instead, if I were the military, I would feel that this was aimed at me.

More important than Congress' tricky agreement/non-agreement on amnesty is the second opinion in this congressional statement. Congress decided that it only had the right to weigh in on two of the eleven points in the proposed San Jose Accord. The Accord included the call for amnesty in Point 2; but more significant, truly, is the Congress' second, extremely circumspect opinion on Point 6, including the way they characterized that point.

As a reminder, in the final version of Oscar Arias' proposal, the non-negotiable return of President Zelaya was demoted from the top of the agreement to the middle, and was softened further by being part of a generalized statement that everything should go back to the way it was June 27, like a bad soap opera where someone wakes up and finds an overly-complicated subplot was all a bad dream:

6. On the Return of the Powers of State to their Integration Prior to the 28th of June

To achieve reconciliation and fortify democracy, we ask the National Congress that, for the goal of recovering the integration and legitimate conformation of the powers constituted the 28th of June of 2009, in the proceeding they return the situation of the Executive Power, Legislative Power, Judicial Power and Supreme Electoral Tribunal to their state prior to June 28, for having been in conformity according to Articles 202, 205, points 9 and 11, and 236 of the Constitution of the Republic of Honduras. The preceding implies the return of Jose Manuel Zelaya Rosales to the Presidency of the Republic until the conclusion of the present governmental period, the 27th of January, 2010.

Congress expressed itself empowered to comment on this point, but not so much so that they actually clarified what it was about:

3.En cuanto al punto seis de la propuesta del Acuerdo, la Comisión Legislativa especial nombrada al efecto expresa lo siguiente:


3.1.El compromiso que se adquiera en el marco de las negociaciones de San José, deberá ceñirse a lo prescrito por nuestra Constitución y sus Leyes, así como en el respeto y acatamiento de las decisiones jurisdiccionales.


(In regard to the sixth point of the proposed Accord, the special Legislative Commission named for this purpose expressed the following:


The compromise that might be acquired within the framework of the negotiations of San Jose, ought to be bound by what is prescribed in our Constitution and its Laws, as well as in respect and respectfulness for jurisdictional decisions.)

Translated into simple language: the Congress says that any restoral of the government-- including Zelaya-- has to be constitutional. And of course, the de facto regime has claimed repeatedly that since the "substitution" of Micheletti on Sunday June 28 was "constitutional", it would be unconstitutional to reverse those changes.

This is rejecting restoration without admitting it.

"No chance Zelaya will be allowed to return": Ortez Colindres

Micheletti's notorious former Foreign Minister, Enrique Ortez Colindres, told BBC Mundo today that Micheletti's request to Arias for someone such as Enrique Iglesias to come and talk to all social sectors in Honduras is not meant to lead to an acceptance of the San Jose Accord.

Ortez Colindres said that the purpose of these conversations is only for Iglesias to hear from many distinct groups (presumably, he hopes, voicing a single pro-coup message):

It isn't the conversations that will provide an exit for the people, rather, the elections in November

(No son las conversaciones que las van a darle una salida al pueblo, sino las elecciones de noviembre)

Instead, he says, the purpose of calling for the dialog is to get the de facto regime's point of view listened to by "prestigious people" (personas de prestigio).

According to Ortez Colindres:

There is not even a minimal chance that Zelaya will come back to Honduras, there is no possibility for an arrangement of this type

(No hay la más minima posibilidad de que Zelaya regrese a Honduras, no hay ninguna posibilidad de arreglo en este sentido)