Article 239 does not legitimate Zelaya's removal

Efrain Moncada Silva has an editorial in today's La Tribuna talking about article 239 of the Honduran Constitution. There's still too much misinformation out there about this clause, and what it means, and whether Zelaya was ever accused, formally, of violating it.

To refresh your memory, article 239 reads, as written in 1982:

Article 239: No citizen who has already served as head of the Executive Branch can be President or a designated person. Whoever violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.

Articulo 239: El ciudadano que haya desempeñado la titularidad del Poder Ejecutivo no podrá ser Presidente o Designado. El que quebrante esta disposición o proponga su reforma, así como aquellos que lo apoyen directa o indirectamente, cesarán de inmediato en el desempeño de sus respectivos cargos, y quedarán inhabilitados por diez años para el ejercicio de toda función pública."

(As you will recall from my previous posting on article 239, I understand the Supreme Court decision of November 12, 2008 to have reverted the clause to this language, while Moncada Silva cites the amended version in his editorial. The difference, however, is minor. The amended version substitutes the Vice President for the designated person.)

As you can see, the article is fairly simple, only 2 sentences long. The first has to do with a prohibiition against being elected president twice in a row, in harmony with article 4, paragraph 2 of the Constitution. It also relates to the text of article 374, which says that anyone who has ever exercised executive power, whatever their title, cannot ever again be elected president.

Moncada Silva spends most of his space discussing the second sentence. He notes that it should not be interpreted superficially nor twisted for political ends. It should not be interpreted simply, or in isolation. Moncada Silva asks two questions whose answers illustrate how it works.

How can a President of the republic break the prohibition to be elected again as Vice President, or Designated person?

Moncada answers that they couldn't, because the Supreme Election Tribunal would prohibit it, and it would nullify the election if it had taken place, alocating fines to the person who broke it.

How can one propose a reform of the first sentence of article 239?

The only way is if the President of the Republic, via his Secretary of State, proposed a law following the procedures in articles 213, 245, and 9 of the Constitution.

No representative or employee of the government of Zelaya supported, either directly or indirectly any re-election of Zelaya, nor even postulated it. As Zelaya said during the OAS reunion in San Pedro Sula in June, he won't be in the government one day past January 27, 2010.

Can there really be a penalty of immediate removal from the office of the President of the Repubic, or any other such office?

No, the second sentence of article 239 needs to be interpreted in the context of the rights and guaranties that the Constitution establishes, among which are the right of liberty (articles 61 and 69), the right to defend oneself (article 82), the presumption of innocence (article 89) and due process (articles 92 and 94).

So who determines and declares the removal from office?

The Constitution doesn't answer this, nor does the penal code. In any case, it would be the final result of a determination in front of independent and impartial judges.

Moncada Silva concludes, "in summary, there was no immediate removal from the office of President of the Republic deposed in the coup and thrown out of the country. The so called "constitutional presidential succession" does not have any legal validity because it was done against the constitutional procedures. I will explain this shortly".

So why this focus on article 239? The Supreme Court didn't cite it in its case against Zelaya. Congress didn't cite it in its June 28th resolution removing Zelaya from office and appointing Micheletti president. So where did it enter the conversation?

The trail leads back to a July 1 motion (published July 5) offered by Orlando Romero Pineda and approved by "all members of the four Political Parties, except those of the Democratic Unification Party". It literally says as part of point 4 that "As a result, as is expressed in the report and Legislative Decreee of the 28th of June, the Honorable National Congress agreed to censure the conduct of the citizen José Manuel Zelaya Rosales and remove him from office by virtue of Constitutional Article 239....". However, any examination of the June 28th document will fail to show a single mention of article 239 anywhere on its pages.

From the original publication of Romero Pineda's resolution on July 5, article 239 went on to become the dominant argument presented by the Micheletti government for Zelaya's removal.

It is clear the constitutional article, and the way the golpistas could use it, was discovered long after they had spirited Zelaya from the country. It is only on July 5 and later that it appears in the pro-coup paper, La Prensa, as a justification for the removal of Zelaya.

Update: Since writing this I've been able to review more newspaper archives, and find article 239 being cited in quotations as early as July 1 in La Tribuna. That article describes a different motion, also presented on the same day as Romero Pinedas, July 1, submitted by National Party member Rodolfo Irias Navas. That motion established a "commission of foreign relations" whose purpose was to talk to the representatives of foreign governments and explain why Zelaya was thrown out. In an interview in the article, Irias Navas postulates that Zelaya violated article 239 simply by proposing to assemble a National Constituyent Assembly to write a new constitution. As we've seen above, its not that simple.

Modifying Articles 239 and 240 or how Elvin Santos became a Presidential Candidate

Through a strange set of coincidences, Article 239 of the Constitution, cited by many apologists for the coup as part of their argument for the forcible removal of President Zelaya, figures prominently in how Manuel Zelaya's former vice president, Elvin Santos became a presidential candidate for the elections on November 29, 2009. Here's the rather strange tale.

In 1998, the Honduran Congress modified article 239 (decreto 245-98) of the Constitution to include the Vice President among the list of those who cannot run for President. In 2002, Congress made 3 changes to article 240 including removing the restriction that kept the sitting President of the Congress from running for President (decretos 268-2002, 412-2002, and 374-2002). Pepe Lobo, then President of Congress, ran for President against Manuel Zelaya, taking advantage of the change to the Constitution that he oversaw.

As modified, Article 239 reads "The citizen who has held executive power cannot be President or Vice President of the Republic. Anyone who breaks this clause or proposes its reform, or supports it directly or indirectly, ceases immediately to exercise their respective positions, and will remain unable to hold public office for 10 years."


On August 24, 2008, the Supreme Election Tribunal voted overwhelmingly to reject placing Elvin Santos's name as a Candidate for President in the Primary of the Liberal Party of Honduras. They based this determination on changes to the Constitution that had previously been approved by Congress. Instead, Santos hastily had to organize a substitute candidate, Mauricio Villeda Bermudez, son of former president Ramon Villeda Morales. (Most recently, Mauricio Villeda has been negotiating for Roberto Micheletti in the Oscar Arias-mediated San Jose negotiations.)

On October 8, 2008 the Public Prosecutor in Defense of the Constitution, René Adán Tomé, challenged the 1998 and 2002 reforms to articles 239 and 240 in the Supreme Court.

On November 7th, the Supreme Court determined that the constitutional reforms to article 239 and 240 of the constitution were unconstitutional, and that they should go back to reading the way they were written in 1982. The changes to article 240 had already been found unconstitutional on December 14, 2007. These were the changes that let the sitting President of the Congress run for President. In the case of article 239, the Court found that article 374 prevailed, and that article 239 could not be modified; but that no law had been broken. They wrote that it wasn't a crime for Congress to try and reform articles 239 and 240, but it was based on an erroneous belief. The changes made to article 239 in 1998, to add the Vice President to the list of people who cannot ever run for President, were overturned.

On November 18, 2008, Elvin Santos submitted his irrevocable resignation to Congress, which considered, and rejected it. Congress considered two resolutions. The first rejected his resignation, and the second noted that under the constitution he was banned for life from seeking the presidency.

Micheletti said of Elvin Santos, "The court has made things clear, but he keeps on lying to the people, they keep announcing a citizen who cannot be a candidate, they keep telling you to vote for John who is really Paul, in short, we don't have to put up with these shameless people who bring nothing but confusion to the electorate and the Honduran people. He is not a candidate, he cannot be a candidate, so says the Supreme Court and the Congress ratified this afternoon"

On November 30, 2008 Mauricio Villeda Bermudez won the primary election defeating the President of Congress, Roberto Micheletti.

On December 17, 2008, Congress reconsidered, and accepted the resignation of Elvin Santos as Vice President. They decided to emit a decree (169-2008) that said that if the Vice President resigned at least 6 months before the election, he can run for President. Santos announced he would go to the Supreme Election Tribunal and have himself inscribed as Presidential candidate for the Liberal Party just as soon as Mauricio Villeda Bermudez resigned. Mauricio Villeda Bermudez irrevocably resigned as candidate in favor of Elvin Santos, and at midnight on Dec. 18, the Supreme Election Tribunal met and inscribed him as the Liberal Party candidate for President.

As it now stands, Articles 239 and 240 have been rolled back to the form they had in 1982.

Article 239 - A citizen who has exercised executive power cannot be President or President-designate. Anyone who breaks this clause or proposes its reform, or supports it directly or indirectly, ceases immediately to exercise their respective positions, and will remain unable to hold public office for 10 years.

Article 240 - The following people cannot be elected President of the Republic:
1. those who have been designated President, Secretaries and Subsecretaries of State, members of the National Election Tribunal, judges, Presidents, Vice Presidents, Heads, Sub Heads, Directors, Subdirectors, Executive Secretaries of decentralized institutions, Controllers and Subcontrollers of the Republic, Attorney General and Sub-Attorney General of the Republic, Director and Subdirector of Probity, who have exercised their office during the 6 months prior to the election for President of the Republic.
2. officers and generals of the Armed Forces
3. members of the joint chiefs of staff, Police, and security forces
4. the military on active service or members of any other armed force that have served in it during the last 12 months.
5. the wife and relatives of the heads of the armed forces, within 4 degrees of consanguinity or 2 of afinity.
6. relatives of the President and those who have served as president in the year preceeding the election, within 4 degrees of consanguinity or two of affinity.
7. Representatives or lawyers for companies that receive concessions from the state for exploiting natural resources, service contracts, public works done with national funds, or those that owe the state money.

These are the men who today, less than one year later, are vociferously proclaiming their fierce defense of constitutional authority in matters of presidential elections. Is it any wonder that Honduran citizens participate in national elections in ever declining numbers? Could it be that it looks like the system is rigged?