US Congress Requests Correction of Flawed Law Library Report

By now, it is old news to readers of this blog that the report, originally erroneously credited to the Congressional Research Service by the congressman who released it, actually produced by a researcher at the Law Library of the Library of Congress, asserting that the coup d'etat of June 28 was within Honduran law, has been refuted. Despite attempts by US scholars to request correction of this report, the Library of Congress has either refused to reply or ignored the substance of requests.

Well, now they have someone they need to answer to. Senator John Kerry, Chair of the Senate Foreign Relations Committee, and Representative Howard Berman, Chair of the corresponding committee in the House of Representatives, have written to Director James Billington of the Library of Congress requesting a correction. They make the same points first stated here. They also describe a pattern of interaction with the Law Library that sounds very familiar, in which despite the evidence, the library refuses to even acknowledge that its report is dangerously flawed.

In my teaching practice, I allow students a second chance to revise papers handed in, when the first draft shows good intentions and substantial evidence of work. While I am not sure I think this is an accurate assessment of the work of the Law Library, I am willing to extend the same courtesy to their essay, which I graded D-minus originally.

Maybe now they will take the chance offered and redeem themselves.

PERMANENTLY REPOSTED: Inaccurate arguments about constitutional and legal issues persist

[NOTE: comments on this post originally made in October asked us to try to find a way to keep it at the top of the blog. We found a somewhat odd way to achieve that goal that deferred it to December. We now have solved the puzzle the way it should have been originally-- RAJ]

The same bad arguments continue to be offered by readers of this blog, so we decided it is worth reviewing what is and is not true about the constitutionality of the removal from office of President Zelaya June 28. We have tried to link back to earlier blog posts, many of them reporting the opinions of Honduran law professors, Edmundo Orellana, Efrain Moncada, Ramon Enrique Barrios, and their Spanish counterpart, Francisco Palacios Romeo.

As its beginning point, this post specifically responds to a comment left by someone called "Admin" on a previous post, "Failure and a Public Proposal". Admin repeats every one of the major pro-coup arguments, all of which have been disproven by legal analyses now so widely available that their persistence in Honduras is mainly a reminder of how successful the propaganda has been in Honduras.

Admin wrote:

The problem IS judicial not political. [The} Supreme Court of Justice has fired Zelaya due to he broke the constitution rules. This is the problem.

Wrong. The Supreme Court never ruled on any of the charges filed by the Public Prosecutor on June 26. There is a persistent misunderstanding of the long documents the Supreme Court posted, which holds that they include a statement removing him from office. They don't; what they do say is that, since the Congress has removed him from office, he is now a common citizen, so the charges filed against him would no longer be heard by the Supreme Court (which only was hearing the case because it has jurisdiction over high government officials).

Admin then rehearses what he/she understands are the basic constitutional issues:

1- Try to change the constitution to implement the reelection is PROHIBIT[ed] - (see article 374).

Yes. Article 374 prohibits changes to, or a sitting government official even suggesting changes to, presidential terms. But President Zelaya never made any such suggestion. What happens is that people who are supporting the coup claim either that the only reason to propose a constitutional assembly was for that purpose (which ignores the issues the Zelaya government actually proposed needed to be addressed) or that proposing a constitutional assembly would automatically put Article 374 under discussion. But in either case, the claim is that a possible outcome, denied by President Zelaya, was the same as actually committing a violation. The Honduran Constitution guarantees freedom of thought, and guarantees that you will be prosecuted only for crimes you commit.

Admin continues

2 - To do "poll opinion" about reelection is PROHIBIT[ed]. (see article 5 + article 374 - you must read both articles together in order to understand)

Yes, you need to read each article of the Constitution, and not pick and choose-- which means you cannot ignore the many violations of due process, and such violations as expatriating the President, which is against the constitution. But reading Articles 5 and 374 doesn't get us anywhere here. The encuesta was not about re-election. It asked only whether people were for or against having a question on the November ballot about whether people were in favor of having a constituent assembly. Not the same thing at all. So Article 374 is irrelevant.

Article 5 deals with the need for citizen participation to be incorporated in government. It regulates plebiscites and referenda. By the time the June 28 encuesta was in place, it no longer had any characteristics of a referendum or a plebiscite. It was a non-binding opinion poll. There is a dispute about whether opinion polls could take place at all. The decisions by a lower court, which the Supreme Court refused to review, did tell the Zelaya administration not to do anything to ask citizen opinion, not even to think about anything of the kind. Whether that really was a decision whose violation could be prosecuted as a criminal matter (rather than an administrative matter) is something we will never know, because the actual encuesta was cut off by the coup d'etat. What is clear is that the poll on June 28 would not have been carried out with the support of the Armed Forces, nor under the supervision of the National Election Tribunal, and therefore was not the kind of process called for under Article 5 for referenda or plebiscites.

3 - Who (the president) [tries] to change the constitution in order to implement the reelection LOST the mandate IMMEDIATELY (see article 239).

Point number 1: Article 239 was raised as a possible foundation for the coup d'etat days after the coup itself, not as part of the original argument made by Congress. Point number 2: President Zelaya was not proposing modifying the constitution to allow re-election. No evidence of any kind supports this claim, which is the product of the paranoia of his opponents. Point number 3: Honduran legal scholars are unanimous that Article 239 does not apply, and that it could not come into effect "automatically" or immediately without violating due process (everyone has the right to be presumed innocent, and a right to due process). 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). The Article 239 proposal has been so thoroughly debunked that it is mainly sad that it persists.

4 - Who (the president) tries to change the constitution in order to implement the reelection commits crime - [TREASON]. (see article 4)

Article 4 is indeed as noted. But is irrelevant: President Zelaya had not tried to change the constitution to implement re-election. He had not even tried to change the constitution. He was trying to take a public opinion poll.

Up to here, Admin is simply following the line of coup apologists, who presume President Zelaya's hidden intentions were to implement re-election (or suspend the government and stay in power). His next points seem to be responsive to my comments here:

5 - The armed forces has the obligation to guard the constitution. So, that is the reason which Supreme Court order the armed forces to capture Zelaya. Only the armed forces can capture who try to broke the constitution rules. (see article 272)

This is not what Article 272 says. Here it is in full:

Article 272: The Armed Forces of Honduras, are a National Institution of permanent character, essentially professional, apolitical, obedient, and non-deliberative.



They are constituted to defend the territorial integrity and sovereignty of the Republic, to maintain the peace, the public order, and the rule of the Constitution, the principles of free suffrage and the alternation in the exercise of the Presidency of the Republic.



They cooperate with the National Police in the Conservation of the public order.



In order to guarantee the free exercise of suffrage, the custody, transport, and guarding of electoral materials and other aspects of the security of the process, the President of the Republic shall put the Armed Forces at the disposition of the National Election Tribunal, from one month before the elections, until the declaration of the outcome of the same.

Pro-coup apologists ignore the abundant documentation provided by the Supreme Court itself, which shows that the Armed Forces were given orders to carry out the raid on President Zelaya because the Public Prosecutor expressed a lack of faith in the National Police, whose role detaining a high government official to take his testimony should have been. The authority for this is delegated to the National Police in Article 293, which defines that body as

a permanent professional institution of the State, apolitical in the sense of party alignment, of a purely civil nature, charged with watching over the conservation of public order, the prevention, control, and combat of crime; to protect the security of persons and their goods; to execute resolutions, dispositions, mandates and legal decisions of the authorities and public functionaries, all with strict respect to human rights.

The National Police role was set aside by the Supreme Court. There is no special circumstance clause that allows that, no matter how many times pro-coup apologists say that. The reason for this substitution was that the Public Prosecutor didn't trust the Police to carry out what in effect were illegal procedures. But he knew the Armed Forces would do it.

Admin's final point clearly takes issue with my postings here, because he tries to argue that the early morning raid on President Zelaya's house was legal:

6 - The last observation - to enter at home on the first hour of the wee is LEGAL. It is a exception of Honduras Constitution. In URGENTLY case is possible to capture a person in home on wee (this happened with Zelaya) - (see article 99)

OK, here's Article 99 (emphasis added)

The home is inviolable. No entry or registry can be verified without the consent of the person that lives there or the resolution of a competent authority. Nonetheless, in an urgent case, it can be raided, to impede the commission or impunity of crimes or to avoid grave damage to person or property.

Except in cases of urgency, raids on the domicile cannot be approved from six in the evening to six in the morning, without incurring legal responsibility.

The Law will determine the requisites and formalities so that there can be entry, registry, o raid, as well as the responsibilities that whoever carries it out could incur.

Here, the selective reading principle is at work. Entry is allowed in urgent cases; but these are defined specifically: to impede the commission or impunity of crimes, or to avoid grave damages to persons and property. And only in cases of urgency can raids be approved for before 6 AM.

None of this was a factor in the June 28 raid on President Zelaya. How do I know? In conformity with that last clause that says "the Law will determine the requisties and formalities" for an exception to the inviolability, the Supreme Court orders dated June 26 defined specifically what was approved. Those orders specified a raid after 6 AM, not before. The rationale for the raid was the claim by the Public Prosecutor that President Zelaya was a flight risk. The defined goal of the raid was to detain him and take his statement on the charges against him. There is close to universal agreement that the Armed Forces exceeded those orders. There is universal agreement that expatriation is unconstitutional, and it was certainly not authorized by the Supreme Court.

Admin ends by warning us to consult the most up to date text of the Constitution. We do. But what we have to urge him, and others who accept these facile arguments, to do, is that they read more than isolated constitutional articles. The links to blog postings relevant to the points made above will provide a starting point for Admin, or anyone else interested in learning more about the real legal and constitutional issues.

Congress versus the Supreme Court (a long story)

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

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

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

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

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

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

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

So that's all clear, right?

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

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

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

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

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

Here is the full version of that section of Article 205 as it stands today:

ARTICULO 205.- Corresponde al Congreso Nacional, las atribuciones siguientes:
...
10. Interpretar la Constitución de la República en sesiones ordinarias, en una sola legislatura, con dos tercios de votos de la totalidad de sus miembros. Por este procedimiento no podrán interpretarse los Artículos 373 y 374 Constitucionales.

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

[these last are the so-called set-in-stone articles.]

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

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

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

Most important for our purposes are the contents of the clauses defining general underlying principles ((clauses that start "Considerando", or "Considering"):

Considering: That in conformity with the Constitution of the Republic in its Article 205 numeral 1, there corresponds to the National Congress the attribution of creating, decreeing, interpreting, reforming, and abolishing laws;

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

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

Considering: That the constitutional practice that now enjoys "the opinion juris" [norm of behavior], is considered among us, as a constitutional custom and being the constitutional custom is the most important direct or immediate source of Constitutional Law, after the Constitution itself, it is in order to elevate to the rank of written constitutional precept the referenced custom, through which the National Congress has been interpreting historically and systematically the clauses of the Constitution, through decrees approved in ordinary sessions with a certified vote of a two-thirds majority of the totality of its members, in a single legislature.

What these statements tell us is that Congress was making the claim that the Constituent Assembly had not been clear in 1982 about who was charged with interpreting the Constitution; that the Congress had a habit of discussing Constitutional interpretation ("hermeneutic" being the key word here, drawn from biblical scholarship, and meaning the process of interpreting a foundational document); and that Congress considered its customary practice the most authoritative way to ground law, outside the Constitution itself.

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

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

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

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

This sparked a conflict with Congress, which refused to publish the ruling in the case (although, as noted previously here and elsewhere, rulings come into effect immediately, unlike laws which must be published). A publication by the International Commission of Jurists briefly touching on this conflict has been cited by some of those insisting Congress does have a legal right to interpret the Constitution. But the key paragraph is either badly worded, or based on misunderstanding of the contexts of action by the Congress:

However, to eliminate all doubts, on 20 January 2004, Congress adopted Decree 241-03, ratifying Decree 276-02 of 8 August 2002, providing for a reform of Article 205 of the Constitution which gives Congress the explicit power to interpret the Constitution through a decree adopted with a two-thirds majority vote in a single legislature. (emphasis added).

"To eliminate all doubts" implies that the ratification was somehow an effective action taken in response to the Supreme Court ruling. That is not why Congress passed Decreto 241-03. They passed it to continue the normal process of ratifying the amendment they had already proposed, despite the Supreme Court ruling, because they were in open rebellion against the separation of powers. By continuing with the ratification as if there were no issue, they inserted the language into the Constitution (since Congress controls that document); but they did not make an unconstitutional section constitutional. They just made the document that is the Constitution a flawed text.

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

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

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

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

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

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

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

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

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

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

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

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

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

Free and Transparent Elections?

This morning the de facto government published, in La Gaceta, a decree suspending five articles of the constitution for 45 days. Among those articles suspended are the right of free speech (article 72), free assembly (article 78), the free movement (article 81), arrest only with a warrant (article 84), and personal freedom (article 69). The alleged reason for the suspension is Zelaya's call for insurrection.

Article 3 section 1 of the decree says "free circulation is prohibited, restricted by the parameters communicated in nation broadcast on radio and television."

Article 3 section 2 of the decree says "it is prohibited all public gatherings not authorized by the police and military; because if they do, they will be detained and jailed."

Article 3 section 3 says "it is prohibited to publish in any media, spoken, print, or televised, anything that offends human dignity, public functionaries, or questions the law and government resolutions. Any such attempt is an attack on peace and public order." CONATEL will "suspend any radio station, television station, or cable system that does not adjust its programming to fit these restrictions."

Article 4 give the de facto government the right to "detain anyone outside during a curfew or is suspected by the police of causing harm to persons or things; also people who gather with the objective of committing crimes or put their lives in danger."

As El Heraldo notes in its article, the de facto government seeks to avoid the gathering of protesters in support of Manuel Zelaya, and to take off the air Channel 36 and Radio Globo.

Oscar Matute, the Government Minister, said "this absolutely will not affect the electoral process, its not like that." Yeah right.

BTW, La Prensa tells us that this decree has not yet been approved by Congress, so its not yet law, but they are already enforcing it. Congress will not meet until this afternoon.

US Congressional Research Service missed crucial Honduran Supreme Court Ruling...

Armando Sarmiento, former director of the Honduran equivalent of the IRS, provides on quotha.net a critical and devastating critique of the CRS report discussed in our previous blog posting making two points, the first fatal for the shocking attempt to justify the coup:

• The Supreme Court of Honduras declared it UNCONSTITUTIONAL for the National Congress to interpret the constitution in the verdict issued on May 7, 2003. As such, there exists no legal basis to assert that Congress can interpret the constitution, indirectly constituting a basis for a political verdict permitting the removal of the head of state.

[Note correction: the original blog post at quotha.net had the year as 2009]

This post saves me belaboring the point: the amendments to the Honduran Constitution-- proposed, passed, and ratified by the Honduras Congress-- that gave the Congress the right to interpret the Constitution itself-- as opposed to the laws passed by the Congress, as called for in the original 1982 Constitution-- eroded the separation of powers, and usurped the authority of the Supreme Court itself to interpret the Constitution. I am glad to see that the Honduran Supreme Court agreed with me this in May 2003-- even longer before the events of June 28, and also, before the now entirely discredited "research report".

Sr. Sarmiento also anticipates a second point we have been actively researching, and confirms another understanding we had about legal process in Honduras, writing:

• In any case, if Congress had the ability to interpret the constitution (which according to the Supreme Court's decision it does not possess) the interpretation would have to state clearly in a decree that the constitutional standard was being interpreted and to clarify thereafter the standards resulting from said interpretation (which was not done in the removal of the president). There is no tacit interpretation of the constitution; the interpretation must be explicit.

During the period when the Congress acted on the strength of amendments it had made to try to grant itself the power of Constitutional interpretation, there was a procedure that had to be followed. That procedure was not followed during the extraordinary session convened on June 28. The Congress had to declare that it was actively interpreting the Constitution.

It did not do so.

The fact that a US Congressional Research report decided that the only way the Congress could have done what it did is if it was (without declaring it) interpreting the Constitution would have been utterly inexplicable-- except, as we have shown, for the fact that the researcher involved relied on one single Honduran informant, apparently not knowing or not caring that this individual was not a disinterested source, and that his opinion conflicted with all real legal analyses offered in Honduras, Spain, and the US.

Indeed, we would make a third point of our own (complementing Sr. Sarmiento's third point, which we urge you to read at the original post, soon to be updated with a longer analysis):

The June 28 session was not an ordinary session (as it was erroneously labeled in the CRS report). It was an "extraordinary session".

The procedural document guiding Honduran National Congress meetings establishes in Article 5 the procedures to be followed for calling such an "extraordinary session".

These include the requirement that only those topics listed explicitly on the call for the session be discussed. There was no explicit mention of constitutional interpretation as part of the agenda for that meeting. That may in fact be because the members of the Honduran Congress knew that the Supreme Court had rejected the claimed power of interpretation years earlier.
[note that the original blog post on quotha.net had the year wrong]

Surely Ms. Gutierrez should have found out that critical point? wouldn't it have been nice for her golpista source to have informed her, before she wrecked her credibility by producing this poisoned research?

Giving Constitutional Research a Bad Name

US congressman Aaron Schock (Republican from Illinois) commissioned a research report that has excited immense interest in the pro-coup Honduran media. So far, in English mainstream media, it appears to have been given the cold shoulder it deserves. But make no mistake, bad research is consequential, and the right-wing blogs are alive with the story as well.

Written by someone identified only as a "Senior Foreign Law Specialist" at the Library of Congress, Norma C. Gutierrez, the report makes an argument that the removal of President Zelaya was constitutional. In this, her report would contradict numerous constitutional law professors in Honduras, Spain, and the United States. The references cited in the report consist almost entirely of citations of the Honduran constitution, or of documents posted online by the Honduran Supreme Court.

A notable exception, and key to understanding the basis of her unique conclusions, are references to phone calls with Guillermo Pérez-Cadalso, described as "a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations." Sounds impressive, right? But wait, who is this, anyway?

Well, he was part of the pro-coup delegation that came to testify before Congress in early July. This was the lobbying group put together by Lanny Davis. His service in the executive branch came during the administration of Ricardo Maduro, one of the former Honduran presidents implicated in the carrying out of the coup. Mr. Pérez-Cadalso is #34 on the widely circulated list These are the coup leaders: They will be judged.

So, hardly a disinterested source.

So let me match Ms. Gutierrez expert-for-expert. Mr. Pérez-Cadalso's testimony is countered by the opinions of Angel Edmundo Orellana Mercado, who was until June 24 a cabinet Secretary in the Zelaya government, resigning over his disagreement with President Zelaya's attempt to remove General Vasquez Velasquez from his position as head of the Joint Chiefs of Staff. Formally a member of Congress since he resigned from the Zelaya government, he formally refused to attend sessions of Congress following the June 28 coup, offering a powerful critique of precisely the same "constitutional" arguments and processes she, relying on a known golpista, accepts. Orellana's editorials specifically rebut the constitutional analysis offered by Gutierrez.

Orellana, in addition to his most recent service in government, has an illustrious history as a Professor of Constitutional Law and a member of various Honduran governments. He holds a PhD in law, and was from 1976 a Professor of Law at the National University of Honduras (UNAH). His government service began in 1982, when constitutionality was restored to Honduras; was Magistrate in the Court of Appeals of "lo Contencioso Administrativo" (the courts that ruled against Zelaya in his attempts to hold a poll) from 1988-1994; was the Attorney General of the country from 1994 to 1999; served as Honduras' ambassador to the UN, was a cabinet minister in multiple administrations, is the recipient of many honors, and the author of legal texts as well as research articles.

And Orellana-- like his colleague on the law faculty at UNAH, Efrain Moncada Silva, and Francisco Palacios Romeo, Professor of Constitutional Law at the Universidad de Zaragoza, Spain, not to mention Professor Doug Cassell of the Law School of Notre Dame, whose invited analysis published by the American Society of International Law is considered the authoritative English-language study of the constitutional issues-- does not agree with Gutierrez or her single Honduran legal advisor.

Why not? well, let's begin with the fact that Ms. Gutierrez appears willing to ignore major points of law. She admits it was unconstitutional to expatriate President Zelaya. But she provides a spurious rationale for the Supreme Court's enlisting the Armed Forces to carry out the raid on President Zelaya in the early hours of Sunday, June 28.

On page 2, she says one of the existing constitutional questions is whether the Supreme Court had the authority to order "the public forces (fuerza pública) to carry out an arrest warrant".

That is not the legal issue. The issue is, did they have the power to ask the Armed Forces (military) to carry out such a raid? The original 1982 Honduran Constitution included all security personnel under the Armed Forces, and made no distinctions between the military and the police, at that time a branch of the Armed Forces called the Fuerza de Seguridad Pública (FUSEP). Article 306 of the current Constitution authorizes the judiciary to call on the Fuerza Pública (capitalized, not lower case) to enforce legal decisions, and failing that, the citizenry. What it does not do is authorize the Armed Forces, from which the police were separated in order to demilitarize civilian policing, under special legislation ratified in 1996. Article 293 of the current Constitution defines as proper duties of the civilian National Police the

ejecutar las resoluciones, disposiciones, mandatos y decisiones legales de las autoridades y funcionarios públicos, todo con estricto respeto a los derechos humanos.

to execute the resolutions, dispositions, mandates and legal decisions of the public officials and authorities, all with strict respect to human rights

The two instances of the term "fuerza pública" in the present constitution, including that cited by Ms. Gutierrez, were retained from the original 1982 Constitution. The multiple revisions of the Constitution have left many such dangling phrases. But the revision of the Constitution that introduced the present Article 293 makes it clear what public forces are supposed to enforce judicial rulings. Re-militarizing a demilitarized branch of public security forces is one of the main acts by the de facto regime that Honduran analysts point to as evidence that this was, indeed, a military coup.

Ms. Gutierrez does acknowledge that the Supreme Court had started the legally mandated process of investigation of the charges brought by the Public Prosecutor, and that this process was truncated by the unconstitutional expatriation of President Zelaya. But she seems incapable of acknowledging that this means there was in fact no determination of guilt that might serve as a legal basis for any move to remove the president from office.

She manages to avoid the thoroughly debunked "Article 239" argument which the de facto regime adopted days after the coup.

Instead, she comes up with a breathtaking, novel new theory of Honduran law: Congress has a unilateral right to interpret the Constitution; so they "interpreted" their power to "disapprove" of presidential actions, under Article 205, section 20, as including an ability to remove the president. Powerful disapproval there.

Apparently aware of the fact that "throw out" is not the most obvious interpretation of "disapprove", Ms. Gutierrez draws on an equally novel interpretation of Article 205, section 10. This section itself has an interesting history: not present in the original constitution, it was added to the Constitution in 1983-1984, giving the Congress the right to interpret not just the laws it passed, but the very Constitution itself. (This is exemplary of the concentration of authority that has made the National Congress in Honduras more powerful than the separation of powers of the original three branch model.)

But the interesting thing is, as Ms. Gutierrez notes, the Honduran Congress did not in fact make the argument she is advancing now. It did not ever, in its own declaration, say that the reason it could remove the President from office was that this was a form of "disapproval".

So where does her novel theory come from? Quoting from page 8:

An analysis of the facts of the case and the aforementioned constitutional provisions leads one to the conclusion that the National Congress made use of its constitutional prerogative to interpret the Constitution and interpreted the word "disapprove" to include also the removal from office.

This section ends with a footnote reference, footnote 40, which reads in full:

This line of analysis was confirmed in an August 3, 2009, telephone interview with Mr. Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations.

Confirmed?! Meaning what? that he agreed this was as good a post-facto rationalization as any other?

If all her legal "research" is this good, one can question whether any of it is reliable.

But there is more. In a document that tries to hide its advocacy under a veneer of reviewing simple facts, there are some extraordinary lapses. Ms. Gutierrez repeats the then already widely debunked claim that the vote to remove President Zelaya was unanimous (p. 8). In doing so, she footnotes the supposed "resignation letter", originally furnished by the National Congress as the legal basis for proceeding to the line of constitutional succession. Her footnote is scandalous in both its ignorance and its use of a golpista smear that even the worst US congressional zealot has not attempted to use, to my knowledge. Her footnote (no. 43) says

It is believed by some in Honduras that Zelaya signed the letter on June 24, before his arrest, to make use of it after the referendum, when presumably the National Constituent Assembly was going to be initiated, on June 29, because Zelaya anticipated that he would be elected President of the Assembly.

It is believed by a lot more in Honduras and outside that the backdated letter was written to be used by the golpistas earlier in the week, when they originally intended to carry out their coup. The actual content of the letter doesn't accord with the interpretation offered either: the letter purported to offer the resignation not only of the President, but of his entire Cabinet.

What Ms. Gutierrez reproduces here is part of the paranoid rumor-mongering through which the Honduran people were induced to believe that President Zelaya had a secret plan to suspend the Constitution June 29 and unilaterally take over the country.

So, what is her source for this claim? You guessed it: the trusted Mr. Pérez-Cadalso.

And so who is Ms. Gutierrez, and other than her reliance on a member of the coup faction, what is her supposed expertise? According to the Law Library of the Library of Congress, employees with her title are "a diverse group of foreign-trained attorneys". Ms. Gutierrez is listed as having jurisdiction over issues related to Mexico and Nicaragua.

It is unclear where Ms. Gutierrez received her legal training; but her legal advice came from a poisoned well.

No More Constitution

The Micheletti regime, about 4 am this morning, violently dislodged the protesters outside the Brazilian embassy with tear gas, pepper spray and water canons. Radio Globo reports THEY SUSPENDED THE CONSTITUTION and declared a state of emergency. Among the rights suspended are the right of free circulation and assembly.

There are many people hurt, and reports of at leaast one death as a result. Update: Adrienne Pine, reporting that police are surrounding the hospital where the wounded were brought, says there were "17 critically injured patients (3 already dead)". Vos el Soberano reports that the police have surrounded the hospital with the injured and are removing them to an unknown location.

A friend who lives a couple of kilometers from the Brazilian embassy wrote at 4:30 this morning to report hearing gunshots:

We can hear gun shots and more from our house, about 2km from the Brazilian
Embassy. There are hundreds injured. We can hear many gunshots.

This as Martha Lorena Alvarado, of the de facto regime, denies that any shots were fired.

Romeo Vasquez Velasquez said "we will maintain the order no matter what the cost. "

The military has occupied the Boulevard de los Proceres closing it, and surrounds the Brazilian embassy. They have stationed a military truck with loudspeakers outside the Brazilian embassy and are broadcasting the National Anthem at full volume. They've stationed sharpshooters on top of the buildings around the Brazilian embassy.

Channel 36 is off the air because the millitary have cut off its electricity. Radio Globo continues to experience periodic outages, but has continued broadcasting. Radio Progresso shut down last evening at 5:20 local time because the owners anticipated violence, but is back on the air this morning.

Radio Globo reports that the military is cordoning off the area around the US embassy now, and has just told all the foreign press to leave the area.

Jose Miguel Insulza reported early this morning that he cannot travel to Honduras because of the closure of the airports.

Military special forces, probably Cobras, have been sighted outside the Brazilian embassy preparing to break into the embassy. Currently they are breaking in to and invading the building next door to the embassy.

At 9:30 am, a caller to Radio Globo reported that tear gas had been tossed into the headquarters of the Comité de Familiares de Detenidos Desaparacidos de Honduras (COFADEH) in Tegucigalpa. Telesur has an interview with Luz Patricia Mejia, president of the Interamerican Commission on Human Rights, in which she notes that the de facto government is violating human rights in its dispersal of the protesters. In a statement on its website, the IACHR reminds the Micheletti government that "demonstrations are essential to democratic life in societies and is a vital social interest."

Elections, Constitutions, and Laws: how "obligatory" is voting?

As the resistance calls for non-participation in the November elections, signs accumulate that this tactic is of concern to the regime, no matter how much they say otherwise. There are intimations that of intentions to prosecute people for not participating in the election or for encouraging others not to do so.

The rhetoric on this topic echoes an overall tactic of the coup regime that is worth exploring both in relation to the specific pressure on the population to vote, and in order to reflect on the use by the de facto regime of claims of constitutionality as their first resort, instead of, as constitutional authorities would expect, a last resort.

The specific case first: the vote, we are told, is obligatory. Constitution Article 40, which defines the duties of citizens, lists as point number 3 "ejercer el sufragio", "exercise suffrage". More common cited is Article 44, which says in full

El sufragio es un derecho y una función pública. El voto es universal, obligatorio, igualitario, directo libre y secreto.

Suffrage is a right and a public function. The vote is universal, obligatory, egalitarian, direct, free, and secret.

Now, I have noted before that the obligatory nature of the vote has obviously not been enforced, given that participation rates in national elections have plummeted, to 46% of eligible voters registering a vote for congress, and 55% for president, in 2005. This is a drop from 81.4% in 1980, the first year when elections were rated as "partly free" during the development of the constitutional system of government that was uninterrupted until June 28 of this year, according to international sources.

A study by the International Institute for Democracy and Electoral Assistance, found voter turnout world-wide from 1945-1999 was lowest and tended to drop over time "partly free" countries, including Honduras, where basic civil liberties may not actually be protected. Both "free" and "not free" countries had higher turnout, presumably for different reasons.

Compulsory voting, the authors of this study note, has been debated as anti-democratic. Even when enforced, citizens have found creative ways to express their actual opinions when no choice they are presented is acceptable:

The leading argument against compulsory voting is that it is not consistent with the freedom associated with democracy. Voting is not an intrinsic obligation and the enforcement of the law would be an infringement of the citizens' freedom associated with democratic elections. It may discourage the political education of the electorate because people forced to participate will react against the perceived source of oppression. Is a government really more legitimate if the high voter turnout is against the will of the voters? Many countries with limited financial capacity may not be able to justify the expenditures of maintaining and enforcing compulsory voting laws. It has been proved that forcing the population to vote results in an increased number of invalid and blank votes compared to countries that have no compulsory voting laws.

Looking at countries where voting is obligatory, the study (after noting that enforcement varied widely) says that

A somewhat surprising result of this study is that the 24 nations which have some element of compulsion associated with voting have only a small lead in turnout over the 147 nations without any compulsory voting laws.

But most important for our purposes here, this study points out that simply having a constitutional claim that the vote is obligatory is symbolic, and that countries with such claims vary in whether they enforce them:

The simple presence or absence of mandatory voting laws in a constitution is far too simplistic. It is more constructive to analyze compulsory voting as a spectrum ranging from a symbolic, but basically impotent, law to a government which systematic follow-up of each non-voting citizen and implement sanctions against them… Not all laws are created to be enforced. Some laws are created to merely state the government's position regarding what the citizen's responsibility should be. Mandatory voting laws that do not include sanctions may fall into this category.

And this is the general point of this post: the coup government consistently cites the Constitution as the basis of its actions: but a Constitution is interpreted through the development of specific legislation.

Social science research shows that globally, such laws do not increase participation; but what does Honduran electoral law implementing the constitutional mandate actually say about not voting?

Simple answer: nothing. Honduras never has had sanctions for not exercising the "obligatory" right to vote.

(The IDEA study confirms this, but if you don't believe them or me, look it up yourself: read the Ley Electoral of 2004, Decreto 44-2004. Lots of sanctions for lots of things, but not one for not voting.)

So, what is a significant cause of higher voter turnout?

The only socio-economic factor which does seem to correlate with turnout rates is the United Nation's somewhat more sophisticated "Human Development Index" (HDI). Turnout tracks closely a nation's level of Human Development. If we split the HDI league table into five equal sections we find that the top fifth of countries have an average voter turnout of 72%, the next 69%, the third 66%, the fourth 60%, and the bottom fifth an average of 56%.

No mystery where Honduras falls in the HDI.

Now, here's the general point: the coup regime has a bad habit of wrapping itself in the raw words of the Constitution, neglecting the actual way the intentions embodied in that document are implemented in legislation, and undermining due process as established in law.

This is most egregious in the way that the coup and its supporting media have promoted the false claim that President Zelaya is guilty of treason, because a legal charge (which many believe was fabricated post-facto) was lodged with the Supreme Court. This claim violates the presumption of innocence implemented in legal revisions of the last decade. It ignores the fact that no hearing had even been held on the "evidence" cited in the legal filing.

arguments like this return Honduras to a state of legal indeterminacy, by encouraging the direct interpretation of constitutional provisions rather than the adherence to well defined legal codes. Thus the coup regime grasps at Article 239 and presents it as a post-facto basis to legalize its actions, when as an unending stream of legal scholars have noted, that Article does not mean what these politicians want it to mean. The Constitution becomes a weapon used against the rule of law. That erodes the legitimacy of what should be the nation's highest charter.

Just as the coup regime has eroded the legitimacy of congress, the supreme court, and the election tribunal.

Micheletti: Zelaya faces "18 charges of violating the constitution"

Roberto Micheletti's latest reiteration of his intransigence that would seem to disqualify him from any further coaxing as it rejects the basis of the San Jose Accord contains an interesting slip-up.

As reported yesterday by McClatchy, Micheletti is quoted as saying

Zelaya would be jailed and tried on 18 charges of violating the constitution if he returned.

Not a direct quote, and could easily be bad reporting, but if accurate, Micheletti appears not to understand that under current Honduran legal procedure, those charged with crimes are not automatically thrown in jail; there is the whole business of hearings and trials.

Judges can even ignore requests for imprisonment, as justice Maritza Arita did in the case of three protesters charged in the aftermath of the UNAH invasion.

(Justice Arita, despite also jailing some protestors, is now the focus of retaliation in Honduras by the de facto government, working through its wholly-controlled Supreme Court, due to the pique her refusal to accept government over-charging has aroused.)

But equally interesting is Micheletti's assertion that President Zelaya has been charged with 18 counts of violating the constitution. According to an article published July 2 in the pro-coup newspaper, La Prensa, the 18 charges trumped up after the coup include a variety of criminal complaints. The road was opened to this wider gamut of charges by the Supreme Court's cynical ruling on June 29 that since President Zelaya was no longer carrying out the office of President, he was subject to prosecution through the ordinary courts.

Let's be clear: the reason I have not translated these 18 charges yet is that they are spurious, politically motivated, and entirely suspect, based on manufactured "evidence" of the flimsiest kind and in many cases, of dubious legal basis.

But nonetheless, I would expect Micheletti to know the difference between constitutional violations and other kinds of crimes. As the ultimate sponsor of this bill of lies, he should know that many of the "crimes" represent administrative disputes that would at best be heard by the Court of Contentious Administration; ordering the construction of a civilian airport at Palmerola (which Zelaya discussed after the deadly crash in Tegucigalpa in 2008) seems unlikely to be a crime at all; and others of the so-called constitutional "crimes" were actions that congress supported.

My favorites, though, which I find most difficult to imagine a way to misrepresent as supposed constitutional crimes:

11. Label as political the decisions of the Public Prosecutor and Judicial Power.

12. State that the National Congress did not have the right to approve the Law of Plebiscite and Referendum

13. Accuse the regulation of plebiscite and referendum approved by Congress of being a "lying law"

[The Honduran Constitution explicitly guarantees the right of freedom of opinion and speech, or at least it did until the de facto regime began suspending civil rights]

AND--the one that really mystifies me--

17. Publicly exhibit a child contaminated with the H1N1 flu virus.

Which deserved billing before the afterthought of the litter:

18. Firing General Romeo Vásquez Velásquez.

Good to know they have their priorities straight. And I will let you know if I figure out how presenting a poster-child for an anti-flu campaign violated the constitution.

"Between them they've buried the bipartisan system": Rodolfo Pastor Fasquelle

In an editorial today in El Tiempo, the Minister of Culture continues his commentary on the spectacle that is the post-coup reality in Honduran politics, endorsing an emerging coalition of progressives:

Pepe and Elvin: The Gravedigger Clowns of the Film

It comes to pass that now, no one took part in the coup, except the no-counts that don't know where to hide. Many businessmen say that they did not, as if their words haven't remained in print and their voices recorded and their handiwork and external lobbying betrayed.

The political leaders of the coup say that neither were they. Carlos Flores says that he was not, that "it was Teté". Pepe goes crazy and Elvin declares 35 days after that "he is not a golpista" and that he condemns "the form" although he condones the basis. A sector of PINU finally repudiates their golpista congress members. But it is obvious that formally speaking the Congress, which is also called "Congre-Zoo", carried out the coup and the congress members responded to their political leaders. That's why the people shout in the street, "golpista congresspeople, trash, out" and when they can they kick them in the street. Without a consensus of the political leaders there would be no coup, since Micheletti, who they are now leaving solo, neither invented the coup nor would have arrived at first base when sent to bat without them.

Paraphrasing Swift I once commented to President Reina that I raised horses because they seemed more noble and rational than politicians. He didn't contradict me and he didn't disagree with me. They should be better than us. And they are the worst breed. I mentioned previously (in "J'accuse") the principal political actors of the coup, and among the witches and alchemists, those generally known, Rafael Callejas and Carlos Flores Facussé, now old politicians, that have once sworn the Constitution that now they are smashing and, exercising their criterion of excellence, the presidency of the Republic that lies here, prostrate, but confronting the repressives with gallantry 45 days later.

Although he competes with Arturo Corrales, Flores is the most cynical. As he says he is writing a memoir I want to assist him. He got in as a congressmember with the blessing of rodismo[*] and intervened many times in the drafting of the constitution that now he broke saying that it was to preserve it. He achieved renown because he wanted to launch himself as a candidate when he was a cabinet minister in the presidency of Rosuco [Roberto Suazo Cordova], on whose orders he also went to the Congress, accompanying Mich [Micheletti] with a proposed law for the Congress to declare itself a constitutional assembly and reform the stony articles, that now he passionately defends.

So many things one could say about Carlos Flores, dangerous and irritable, who many people fear. And that he believes himself loved. Son of a golpista, father of a golpista. Godfather of the usurper and of the judges, attorneys, prosecutor and head of the coup bench.

Carlos has been trying to put this behind him since the day of the coup, when he saw what was coming, saying to anyone who would listen "it wasn't like that man and I told you, but you didn't heed me". Since the week now past he began to publish in his press the adverse opinion of the coup of my teacher Gautama B. Fonseca. But surely you conspired, Ingeniero. We all know what you said to the rest and your role of sponsor. The golpistas that you visited, the media barons, but also the joint command, the "capos" and their deputies, was public.

Your newspaper fabricated the golpista propaganda that prepared the work and set the stage. Your editorials and your little pills always have been golpista even when they wanted to seem unaware in their cynicism. You are a villain, Sir, there is no way to evade the infamy of history. Your father was more cautious. Your own writings condemn you. History will not pardon you, it takes apart propaganda.

The other politicians who conspired will have an identical destiny, although they also try to distance themselves from the coup, Elvin Santos and Pepe Lobo, no one is going to vote for you, Sirs. You are going to have to invent the votes when polls give each one of you one-third favorable in your own parties, versus negative opinions from half. It is now very late to go around repenting. And no one is going to pardon you. You were at the negotiating tables and we all know that you, as candidates of your parties, could have put the brakes on Congress. Pepe wants to pass as ready and lost his second opportunity, Santos lost the only one that he is going to have. Between the two they have buried the hundred-year-old bipartisan system.

No well-born liberal should vote for Elvin Santos, the gravedigger of the greatest party of the isthmus. I have known various bad candidates, but none so fatuous and so destructive as this incontinent Cantinflas, this wet clown.[**] No one should receive him in an honorable house, on pain of being marked. No one should listen to his pleas. No one should speak with him nor turn to see him nor buy a white t-shirt in his malls.

But we don't have to cry for this system that seems that it is going to endure forever, and that we are never going to have parties that will propose ideas, different proposals, real commitments to the people. It could be that there remains, in sight, above the mud with which they cover it, a tight fist, calcined and cracked from the sun, extended saluting those names. The golpistas opened the system so that this new alliance can be established of social organizations and the UD and the varicolored red-and-white progressives, committed to the people, that will win the next elections strikingly and will write glorious pages of our history and a new constituent.

*rodismo: A reference to the conservative movement in the liberal party named after Modesto Rodas Alvarado.


**"payaso mojado": I was tempted to translate this "crying clown", but chose the literal "wet clown" both because of its pairing with "incontinent Cantinflas" and in reference to a story by Daniel Alarcón, "City of Clowns", in which the image refers to a clown literally pelted with water balloons. The image is not uncommon in Spanish as that of a pathetic figure of ridicule.

"Will no One Rid Me of This Troublesome Priest?": Legal Retaliation Threatened for Calling for Boycotting the Election

Roberto Micheletti might well want to echo this famous cry of England's King Henry II, frustrated by Archibishop Thomas Becket, as Honduras' independent clergy continue to break ranks with their own archbishop, apologist for the coup.

And as with Becket, there are officials of the Micheletti regime ready to take up the challenge.

An article in the pro-coup El Heraldo on August 14 quotes the regime's appointee usurping the functions of the Minister of Gobernación and Justicia, Oscar Matute, threatening Father Andrés Tamaya of Olancho.

Tamayo is a parish priest, ecologist and activist against deforestation in eastern Honduras (a cause that has claimed the lives of multiple Hondurans assassinated since the late 1990s, among them Carlos Escaleras, Carlos Flores, Janeth Kawas, and Carlos Luna, and that has made Father Tamayo himself an object of death threats), whose work was recognized in 2005 by a Goldman Prize.

Despite his many years of residence in and work for Honduras, Matute rather ham-handedly implies that Father Tamayo's salvadoran birthplace makes him somehow less truly Honduran, bringing it up in an otherwise mystifying hypothetical comment that leads the Heraldo article:

If you as a honduran arrived in El Salvador to incite the people to not vote, they would immediately put you in jail or throw you out ['de patitas en la calle'].

Now, some might say I am being overly sensitive here. But there is a long-term current of anti-salvadoran sentiment in Honduras that is open to priming, like the anti-nicaraguan sentiment already being exploited by the de facto regime. While the truth is that Honduras' population is intimately mixed with the populations of its neighbors, especially Nicaragua and El Salvador, this troubling and volatile chauvinism is already part of regime rhetoric.

Honduras' constitutional Article 24 actually establishes relatively generous means to become a naturalized citizen, so that any Central American who lives one year in the country can declare Honduran citizenship. Father Tamayo has lived and worked in Honduras since 1983. The writer of the article feels the need to insert in its text the fact that Tamayo is "of salvadoran origin, naturalized honduran", which both constitutionally and pragmatically is of no relevance. Bringing up El Salvador in this context is clearly meant to imply he is not really Honduran.

The article argues that Tamayo

could lose his Honduran citizenship if it is confirmed that he has made calls against the electoral process that is to be carried out this November 29.

Father Tamayo has been widely quoted as calling for a boycott:

If the coup government (of Roberto Micheletti) does not accept restoration [of President Zelaya], there will be no elections. We will boycott the elections.

[AFP has the same story in English with a slightly different version of the quote.]


El Heraldo quotes Matute responding in a radio broadcast:

If [Tamayo] has expressed those concepts publicly, that would expose him to the sanctions established by the laws.

So, is there a legal basis to Matute's threat? Let's start with the Constitution. Article 29 says that naturalized citizenship can be lost by accepting citizenship in another country, or by the revocation of a letter of naturalization (which is a means by which citizenship can be bestowed on people who have not otherwise qualified for it by residency).

Neither option fits here. Article 40, point 3, does define as a "duty" of citizens to exercise the right to vote. And Article 42, point 4 says that citizenship rights can be lost, following a judicial proceeding,

Por coartar la libertad de sufragio, adulterar documentos electorales o emplear medios fraudulentos para burlar la voluntad popular



(For restricting the liberty to vote, adulturating electoral documents or employing fraudulent means to circumvent the popular will)

But what, precisely, would meet this standard?

The best I can come up with as a basis for Matute to be threatening loss of citizenship for advocating a boycott is Constitutional Article 44. It states that

El voto es universal, obligatorio, igualitario, directo libre y secreto.



The vote is universal, obligatory, egalitarian, direct, free and secret.

Matute might try to prosecute on the basis that Tamayo, and others urging a boycott, were encouraging Hondurans to fail in a fundamental constitutional duty.

With participation rates in elections dropping below 50% of the electorate, obviously, the obligatory nature of the vote is not currently being enforced. Otherwise, half the Honduran electorate would be in prison doing 4 to 6 years, based on penalties outlined in the Law of Elections, Decreto 44-204, which became effective with its publication in La Gaceta on May 15, 2004.

Article 209, point 1, of the electoral law sanctions anyone who "impedes another with or without violence from exercising his or her electoral rights". Or Matute could try to apply Article 212, point 15, which sanctions "supplanting another person in the exercise of the vote" (which carries the same penalty) but that pretty clearly is intended for someone pretending to be someone else.

I cannot find anything in Honduran election law that actually says urging others not to vote is punishable.

There isn't even anything defining sanctions for failing to exercise the "obligatory" vote.

I question whether a legal case could actually be made for violating the constitutional demand that all citizens vote.

So while this constitutional prescription must be the basis on which the de facto regime now threatens those who are speaking out against forced participation in the November elections, if they are held under the authoritarian regime, I am dubious about there actually being a legal basis under the penal code that would allow prosecution of someone urging others not to vote.

Matute vaguely says

these are serious errors and could carry responsibilities (for Tamayo).

Looking at it from the basis of the actual law codes he would need to satisfy in a prosecution, this reads as intimidation.

The bad news: the regime is apparently prepared to prosecute an internationally known activist who also happens to be a Catholic priest on flimsy charges that could easily be countered, among other things with the constitutional guarantees of freedom of speech and the requirement that people not be prosecuted for their opinions.

The good news: the only reason for them to be this concerned is if a boycott seems like a viable and dangerous thing.

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.

Treason! or, Maybe Not

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Even more interesting than the partial citation of the penal code on treason is the partial citation of Constitution Article 2. What was left out was the following:

La soberanía del Pueblo podrá también ejercerse de manera directa, a través del Plebiscito y el Referendo.



The sovereignty of the people can also be exercised in a direct manner, by means of the plebiscite and the referendum

By leaving this clause out, the complaint gives the impression that the only constitutional form of government is the institutions that represent the people. This supports the otherwise weak argument that the proposed poll was inherently treasonous by asking the opinion of the people, instead of simply supporting the existing process of amendment of the constitution that is monopolized by the National Congress.

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

The argument proceeds

In this sense, the act of convening a National Constitutional Assembly, is evident that with the same it is intended to abolish the present Constitution, an action constituting the offense that concerns us [treason] in regard to that disposed in articles 373, 374 and 375 of our Constitution, does not lose its effectiveness and nor ceases to apply and cannot be the object of any modification, whether for any other means and proceeding distinct from that which is outlined in it; in consequence, under no circumstance can a new constitution be dictated and approved because that would bring with it the reform of the stone articles, the same that cannot be reformed in any case.

Hence any survey asking people's opinion about whether there should be a ballot question about whether to convene a constitutional convention, whose specific goals were entirely undefined, necessarily was treasonous because the only way to draft a new constitution would supposedly be to set aside the unalterable articles of the present constitution.

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