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.

"The Military Coup and the Rupture of Constitutional Continuity" by Efrain Moncada Silva

In an editorial today in the Honduran newspaper La Tribuna, not noted for any support of President Zelaya, Efrain Moncada Silva, Minister of Government in the Zelaya administration, a constitutional lawyer and Professor of Law in the national university, provides the precise legal citation for the point that the National Police, not the army, has the legal role of arresting those indicted in Honduras.

(Perhaps not coincidentally, an article in Tiempo today quotes a spokesman for the Armed Forces saying "That is a decision on the part of the legal justice [system]" when asked whether they would accept the emerging suggestion that the decision to expatriate President Zelaya was the military's responsibility.)

While some may question his analysis due to his position in the Zelaya government, independent media sources confirm that Moncada offered Zelaya legal opinion that went against his goal of conducting the poll. That evidence of independence and his unquestioned credentials as an expert on Honduran Constitutional law should make even apologists for the coup d'etat stop and think. Here is my translation:

Whatever might be the qualification that some sectors try to give to the events of Sunday June 28, the international community, both regional and world-wide, as well as the light of our Constitution, treats it simply and categorically as a coup d'etat, that has produced a rupture in constitutional continuity of one of the powers of government of Honduras, the Executive Power, no matter that it was by means of an order of the Supreme Court of Justice directed to the Armed Forces and that the National Congress has named a substitute for the President of the Republic in undue application of constitutional Article 242.

Let's examine the facts with scientific objectivity, without prejudices or assumptions, and without subordination to personal or sectorial interests, nor to passions of political or other ilk.

In agreement with Article 306 of the Constitution the judicial organs shall require in necessary cases the aid of the police force for the completion of their legal rulings. Always supposing, without it being proved, that there had intervened the commission of some misdeed, it appertained to to the National Police to execute the legal rulings of the Judicial Power and not to the Armed Forces which, in agreement with Article 274 of the same Constitution, does not have any expertise related with the execution of legal rulings, laws, legal mandates, and legal decisions of the public officials and authorities, especially the Judicial Power, because its powers are expressly determined in the said Article 274. So in the violent apprehension of the President of the Republic, undoubtedly, various crimes were consummated, that sooner or later will have to be determined.

In addition, to expatriate the incumbent of the Executive violated his rights consigned in constitutional Article 102 that orders that no Honduran can be expatriated nor turned over to the authorities of a foreign State.

Moreover, the National Congress on naming the president of the same power as substitute for the incumbent of the Executive incorrectly interpreted and applied, twisting the letter and spirit of the cited Article 242 of the Constitution that requires the absolute lack of the President of the Republic, that is to say, when he should die or be totally incapacitated to exercise his office, situations that were not given in the case of President Zelaya. Thence the so-called "constitutional succession" of Sr. Micheletti has no constitutional validity.

In reality what there has been in Honduras is a military coup and a rupture of constitutional continuity, understanding that as the flow of the political-social dynamic in the form foreseen by the constitutional norms. On deposing the President of the Republic by force without having constitutional mechanisms that authorized that deed, and on naming a substitute without the standard assumptions of the cited Article 242, a political crisis was produced, regardless that the military has or has not occupied positions in one of the three branches of government.

In this moment of the crisis the important and urgent thing is to find a solution to restore constitutional order.