"The 28th of June and the Constitution" by Edmundo Orellana

Edmundo Orellana, the defense minister who resigned from the Zelaya government the week before the coup to register his disagreement with President Zelaya, and who since the coup has spoken out against the unconstitutional nature of the actions of Congress and the army, has published a new editorial calling for acceptance of the San Jose Accord.

In it, he briefly summarizes the many violations of Constitutional procedure that make the coup illegal. As a legal scholar and university professor, it is especially interesting, as we pursue the analysis of the legal claims made prior to the June 28 coup, to note how Orellana characterizes the proposed survey or poll. As he (accurately) describes it, the poll was intended to "legitimate" a legal proposal that would have been submitted to Congress, which would have had the decision of whether to place it on the binding November ballot.

In light of the ramped-up rhetoric of the Armed Forces, whose role June 28 Orellana correctly criticizes as usurping the constitutional role of the National Police, it is important to note that the military has been perhaps chief among those whose defense since June 28 has been their role in defending the Constitution. As Orellana notes, you cannot use a violation of constitutional order to fix a constitutional violation.

The 28th of June will be marked by all of us forever. Particularly, by the youth, who lived in a world of their own, of work, of study and of diversion, but without political commitments. From that day, there is no youth that does not discuss those deeds and adopt a position.

No one is indifferent to what happened nor its consequences. The country, accordingly, is divided in two: those that justify the deeds of the 28th and those that reject them. Consensus will be reached only if we recognize that we all will lose. Anguish, certainly, the allotment that corresponds to each one, because this type of damages are never prorated.

There is no doubt that the responsibility for what passed on the 28th of June is with those that had the obligation to guarantee respect for and exercise of democracy and the fulfillment of our Constitution.

President Zelaya Rosales confronts accusations that impute to him a series of offenses all derived from his actions in relation to the famous opinion survey, by means of which it was intended to legitimate a project of law that would be sent opportunely to the National Congress so that it could decide whether or not the "cuarta urna" [fourth ballot box] would be placed, with the purpose of asking the people if they would like to convene a National Constituent Assembly during the following presidential term, and over which was pending a judicial ruling supposedly suspending its realization.

The Constitution of the Republic contains dispositions in which the comportment of the authorities should be framed, particularly in the case of accusation of offenses. Nonetheless, the supposed legality of the actions of this unlucky day does not hold up to the most minor analysis when confronted with the Constitution of the Republic.

The President of the Republic was captured by the Armed Forces, but our Constitution orders that judicial warrants should be carried out by the National Police (Art. 293), not by the Armed Forces, whose functions are of another order and much more elevated (Art. 272). After his capture, the President was not brought to a center of legal confinement, despite the fact that the Constitution orders that those detained or made prisoners should only be in the locations that the lay sets out (Art. 85). The President was expatriated to Costa Rica and the Constitution prohibits that Hondurans should be expatriated (Art. 102). The National Congress decreed the removal of the President, but the Constitution only attributes to it the power to accept his resignation or to substitute for him in case of absolute absence (Art. 205, no. 12). The National Congress founded the removal of the President on their rejection of his conduct as an official, nonetheless, the Constitution attributes to Congress the poweer to reject the "administrative conduct of the Executive Power" (Art. 205, no. 20), not of the official. That rejection, according to the National Congress, was due to the President violating the Constitution, many laws and judicial orders, but the Constitution only empowers the Congress to reject the "administrative conduct" (Art. 205, no. 20); the power to decide when he has violated the law or a judicial order, as well as to judge such deeds, is reserved, exclusively, in our Magna Carta, to the Judicial Power (Arts. 303 and 304).

Violations of the Constitution cannot be put right with another violation. The Constitution is defended by subjecting oneself to it. Their violation translates into disregard for the State of Law and infringes on the very essence of the Law. Therefore, a coup d'Etat never has been and should never be the solution to a political conflict. With that, we have mortally stricken our democracy, whose advances and setbacks, since 1982, have not permitted it to assert itself fully as of value in Honduran society.

Despite being mortally wounded, our democracy could recover its health even yet. Until now, we have proved, with the "Poet Shepherd", that " the animal that sings/the animal that can cry and put down roots/ remembers its claws"; we can avoid returning to the wild beast, and promise never to declare "today love is death/ and man stalks man".

For that, simply, we should follow the road towards reconciliation. We will arrive there by pardon and this will be obtained only by those who admit their fault.

The solution to this crisis necessarily passes by the "San Jose Accord", endorsed unanimously by the international community. In this uniquely is asked of the actors of this national tragedy: flexibility, equanimity, tolerance, humility, and rectification. Can it be so difficult to agree to this petition? An old adage says: error is human, correction is by the wise.

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

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

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

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

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

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

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

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

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

[This commission is of the judgment that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But Congress notably skipped Title XII, Chapter IV.

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

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

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

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

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

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

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


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


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


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

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

This is rejecting restoration without admitting it.

The Public Prosecutor's Accusations of President Zelaya

In its defensive timeline of events, issued after the June 28 coup, the Honduran Supreme Court lists as point 8:

On June 26, 2009, based on a legal request dated June 25, 2009, presented by the Ministerio Publico (Public Prosecutor), against the citizen Jose Manuel Zelaya Rosales who was accused as responsible, by title of author of offenses against the Form of Government, Treason against the Homeland, Abuse of Authority and Usurpation of Functions, in prejudice to Public Administration and the State of Honduras; whose secrecy was suspended the 30th of June, 2009; by unanimous vote, the Supreme Court of Justice designated one of its Magistrates to comprehend the proceeding in the preparatory and intermediate steps, who accepted the request, and dictated an order of capture and for a raid.

The Supreme Court summary constructs a storyline that suggests that it accepted the charges of treason brought by the Public Prosecutor. This has led to the simplified claim that the Supreme Court had made some kind of decision in the case. As noted previously here, in fact, the Supreme Court, by appointing one of its number, José Tomás Arita Valle (one of the four Hondurans whose US visas were cancelled late last month), to start hearing the case, was taking the first step in a multi-stage legal procedure that had replaced the vague impeachment process originally present in the 1982 Constitution, but had yet to gather its own evidence. Thus, no decision had been reached, and by law, before reaching a decision, the accused would have had a chance to defend himself.

With that context, it is useful to look at what exactly the Public Prosecutor, Luis Alberto Rubí, claimed as the bases for his complaint to the court, in documents found on page 32 to 47 of the Supreme Court's "Expediente Judicial 1".

This begins by specifying what the prosecutor wants the court to do:

That it would release an order of capture-- that it would communicate the deeds that are attributed, that it would receive the declaration of the accused-- that it would suspend him in the exercise of his office-- that it would authorize the raiding of the dwelling-- that it would decree the secrecy of the file.

Of this wish list, the orders written by the justice delegated to hear the preliminary and intermediate phases of the proceeding authorized the capture and taking of the statement of President Zelaya, the raid on his house, and sealing the file (until the same petitioner asked for the file to be made public on June 29).

What Supreme Court magistrate Arita Valle did not do on June 26 was to suspend President Zelaya in the exercise of his office.

The rest of the case is divided into four main sections: Hechos, or deeds; Calificacion Juridica, or legal qualification (of the charges); Preceptos Jurídicos Aplicables al Delito que se Imputan (legal precepts applicable to the offenses charged); and Relación de las Pruebas que Fundamentan la Imputación (account of the evidence on which the accusation is based).

Eight "facts" are listed as part of the complaint:

(1) the publishing on March 23 of the intended poll questions

(2) a ruling on May 27 by the contentious administrative law court ordering the suspension of the poll. This ruling, it must be noted, was by a lower court and appears never to have been subject to Supreme Court review and affirmation, despite claims to the contrary.

(3) the issuing of a new decree on May 26 that replaced the previous proposed poll with one now labeled "encuesta de opinion" (opinion survey) in place of the legally barred "consulta popular" (poll).

(4) On May 29, publication of news of the planned survey, for which the assistance of the Armed Forces was specifically required

(5) On June 3, the court of contentious administrative law sent a demand that the President follow the interlocutory sentence of May 27

(6) On June 18, the same court sent another communication telling the president to abstain from any poll or questionnaire that would be an evasion of the sentences of May 27 and 29

(7) On June 18, the same court sent a request that within five days-- by June 23-- President Zelaya would inform the court of the steps adopted to comply with the sentence.

(8) On June 25, referred to as "today", the president went to the air base where the ballot materials were in the hands of the Armed Forces and removed the 814 cartons of these materials

These eight "deeds" are followed by four specific charges. Included in these are the now-expected citation of irrelevant sections of the constitution. It is here that we find the legal bases claimed for the four charges brought. Later posts will consider some of these in more detail, as Constitutional Law Month continues. For now, it is critical to examine what crimes were alleged, not simply what actions were described. In other words, how do the eight things described above become the four charges?

(1) Offense against the form of government, the first charge, is based on Article 328 No. 3 of the Penal Code, which prescribes punishment by imprisonment from 6-12 years, for undertaking acts intended to remove from the National Congress, Executive Power, or Supreme Court, their prerogatives or abilities. This is based on the assertion that any attempt to consult the public was prohibited except for those defined as plebiscites and referenda, reserved to other government entities. This is the focus of the main struggle between President Zelaya and the National Congress: could the latter restrict the executive branch from undertaking even non-binding consultation of the people? The symbolic value of the June 28 survey, since it was non-binding, and unlikely to lead to a November referendum even had a majority endorsed it, because such referenda are reserved to the National Congress, was as a demonstration of the desire to encourage popular participation in government.

(2) The second accusation is that President Zelaya committed treason, based on citing Constitutional Article 2, Article 4 and Article 5, paragraph 7.

The latter he says prohibits referenda or plebiscites on "projects oriented to reforming article 374 of the constitution", one of the so-called "stone articles". Here the prosecutor begins to argue that any constitutional reform would automatically have violated the ban on changing fixed articles, and equates the poll with binding referenda, and assumes a different content to such a referendum than that of the poll question.

Constitution Article 2 is where treason is defined. It reads in its entirety

ARTICULO 2.- La Soberanía corresponde al Pueblo del cual emanan todos los Poderes del Estado que se ejercen por representación.

(Sovereignty corresponds to the people from whom emanate all the Powers of State that are exercised by representation.)

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, through the Plebiscite and the Referendum.)

La suplantación de la Soberanía Popular y la usurpación de los poderes constituidos se tipifican como delitos de Traición a la Patria. La responsabilidad en estos casos es imprescriptible y podrá ser deducida de oficio o a petición de cualquier ciudadano.

(Supplanting popular sovereignty and usurpation of constituted powers are defined as offense of treason against the homeland. The responsibility in these cases is unprescriptable and can be deduced by service or by petition from any citizen.)


The complaint argues that President Zelaya committed treason by planning

to supplant the popular sovereignty, which is exercised in this country by representation in conformity with that which the constitutional norms establish, where sovereignty corresponds to the people from whom emanate all the Powers of State, as well as arrogating to himself faculties that he never had in virtue of the fact that the same are areas of expertise of the National Congress, in virtue of which by the issuing of three executive decrees, he convened the Honduran citizenry to participate in a popular opinion survey

The complaint argues that by considering convening a National Constituent Assembly

it is evident that with the same it is intended to rescind the present Constitution, an act constituting the offense that occupies us [treason] in regard to that disposed in articles 373, 374, and 375 of our Constitution, which shall not lose its validity and neither can stop being fulfilled nor be an object of any modification, except by some other medium and procedure distinct from that which it outlines itself; therefore, under no circumstance can a new constitution be dictated or approved because that would bring with it the reform of the stone articles, the same that cannot be reformed in any case.

After this long aside, which seems to be leading to a charge of treason for intending to revise the unrevisable articles (which would have required substantiation through evidence that President Zelaya advocated, or intended to change, these parts of the constitution), Rubí actually simply concludes that the President violated the prerogratives of the legislative branch by seeking to convene an opinion survey. And that, for some reason, was treason.

Rubí notes that the Penal Code article 310-A says treason as defined in Article 2 of the Constitution would be sanctioned by 15-20 years in prison.

(3) The third charge is abuse of authority, subject to 3 to 6 years of imprisonment, for failing to comply ith judicial or administrative orders, based on "hechos" 5 and 6 (ignoring communications from the court of contentious administration).

(4) Usurpation of functions is the final charge, punishable with 2-5 years of imprisonment and a fine of 5,000-10,000 lempiras (a maximum of just over $500), based on persisting in carrying out a public opinion survey which the prosecutor says should be covered by the Law of Electoral and Political Organizations that reserves to the Supreme Electoral Tribunal to "organize, direct, administer, and guard electoral processes and popular polls… convene elections, referendums, and plebiscites". Here, as many legal observers note, the fact that President Zelaya was kidnapped before he could carry out the actual survey surely complicates the case, since he cannot actually be accused simply of thinking about doing so, but would need to have done it.

Having laid out the four charges he proposes, the Public Prosecutor reiterates that these crimes would violate articles 349, 354, and 328 of the Penal Code, all based on Article 5 of the Constitution, which governs the conduct of referenda and plebiscites, not Article 2, the article concerning treasonous acts.

While earlier he engaged in a long discussion of the "stony articles" of the Constitution, he does not in fact charge that President Zelaya violated them. Rubí does not cite the Constitutional articles that would support an actual charge of treason.

A list of "evidence" (mainly publicly published government decrees) comes next, followed by Rubí's request for an order for a raid, because President Zelaya was a flight risk.

The final petition asks

that an order of capture be released and that migration alerts be issued against the accused Jose Manuel Zelaya Rosales, that a raid on the dwelling of the accused be ordered, that he be made to know the deeds of which he is accused, that the declaration of the accused be received, and consequently, judicial detention be decreed in virtue of the gravity of the punishment that might be imposed; that secrecy for the file be decreed, and that the date and hour for the initial hearing be indicated.

The Supreme Court orders, discussed here previously, paralleled this request quite closely. In ordering the requested actions, the magistrate echoed the citation of articles 349, 354, and 328 of the Penal Code and added citation of the relevant sections of the Penal Process Code. But curiously, he did not cite the sections of the Constitution offered as grounds for the complaint by Attorney Rubí. Instead, the Court cited articles 69, 61 [sic], 84, 89 and 90, which deal with the rights of those accused to due process.

What needed to happen next was a trial. Needless to say, the forcible expatriation of President Zelaya forestalled that. So what we need to consider next is how, under the procedures for trying high government officials, the primarily administrative offenses that were actually supported by documentation would have been treated, had President Zelaya remained in the country and provided the Court the statement it authorized being taken.

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

Statement of the Central American Cultural Studies Congress

Delegates to the second Central American Cultural Studies Congress recently held at the Universidad de Costa Rica, in lieu of the original planned venue of Tegucigalpa, endorsed the following statement against the disruption of constitutional government in Honduras in a special final session featuring scholarly discussion of the coup and its causes. As noted here previously, Honduran and Central American academic opinion is strongly against this reversion to authoritarian rule. It is no accident that the victims of the Honduran regime include teachers, most recently, Roger Vallejo, fatally wounded by gunshot to the head during protests in Tegucigalpa, who taught at the Instituto San Martín.

As the signatories reiterate, the events in Honduras are part of a larger regional process through which democracies that have failed to extend benefits to the clase popular, which could be inadequately and misleadingly translated "working class", but actually is better thought of as extending to all those disenfranchised everyday people who were the projected beneficiaries of constitutional reform in Honduras.

These scholars also emphasize, as I will continue to do in upcoming posts, that there was no completed judicial process prior to the illegal expatriation of President Zelaya that could have served as a legal basis to remove him from office. I have come to believe that the reason for the de facto regime ordering President Zelaya's removal was, quite simply, that they had no viable case against him that would have risen to the level necessary to procedurally remove him from office. They did not want to wait out the rest of his term and risk there being a mobilization of a larger popular movement that, in the November elections, might have upset the long-term hegemony over the presidency shared by the Liberal and National parties, if only by giving a third-party candidate a sufficiently large number of votes to make it harder to claim a clear mandate to govern.

But for now, I simply wish to reiterate a second point of this blog: that cultural policy is central to what happened in Honduras. As much as the economic spoils and threats to political hegemony motivated the authors of the coup d'etat, so too did their discomfort with the changing complexion of the country: with the increasing visibility of indigenous people, african-descendant people, women, sexual minorities, people whose families were recent and not-so-recent immigrants to the country. Scholars, academics, and intellectuals are at risk in this authoritarian regime not solely when they protest and risk being killed, but when they speak out. We need to be as angry about stifled voices as we are about those whose lives are lost.

Declaration Against the Coup d'Etat in Honduras by the Central Americanist Academic Community

The academic community that the undersigned represent, university professors and officers, researchers, essayists, literary writers, artists, students of the MA and PhD in distinct Central American, Latin American, European centers and those of other regions, would like with this declaration to energetically and publicly reject the civil-military coup d'Etat carried out in Honduras and demand the immediate return to a democratic regime under the principles of national constitutional order and jurisprudence and the international treaties in force for the country and the region.



It is unacceptable from every point of view, illegal and contrary to the most minimal rules of democratic coexistence that, taking advantage of military force, a democratically elected President of the Republic has been made prisoner, deported, and removed from his office without there having been completed any prior judicial process.



The unanimous international condemnation of this act of violence makes manifest the consensus that exists in regard to the obligation that the powerful groups in any country have, whether they may be economic or military, to respect these minimal norms, without which what we have is the usurpation and abuse of political power.



Honduras, like many Latin American countries, is passing through the difficult process of consolidating and deepening democracy as a mode of existence that wishes to respect and promote the rights of the clase popular, historically exploited and maginalized, in societies dominated by elites that lack the capacity or the interest to administer resources and direct institutions with benefits deserved by everyone.



The events that occurred in Honduras constituted a complex and controversial episode in this process, inasmuch as there were in play these aspirations of democratic transition with the resistance of powerful factions, the same that have confused opportunisms of every type with the legitimate aspirations of society.



Restoral of the constitutional order in Honduras constitutes an unavoidable challenge for the democratic transition not only in this country but in many others of the continent inasmuch as they expect to encounter routes to advance toward social equity without deception and with feasible proposals, both of how to guarantee sustainability and the respect of the rights of the citizens.



This declaration comes from the Second Central American Congress of Cultural Studies that has been implicated in this conjuncture because it was to have been celebrated at the Universidad Nacional Autonoma de Honduras on dates that fell after the coup, and had to be moved to the Universidad de Costa Rica in order to offer better guarantees of security to the participants.



This Congress that had been conceived to be celebrated in times of peace, has had to be carried out in an altered context because of the crisis in Honduras and the consequent political tension in the region. The declaration that we sign, nevertheless, does not wish to be a simple protest of the disturbance that in practice the coup d'Etat in Honduras has entailed for regional academic activity, but more than that it wants to be a political action by those who occupy ourselves with Central American actuality in our studies and are especially concerned with the destiny of those societies.



We sign this Declaration as an academic and intellectual community, in San Jose, Costa Rica, on the 24th day of the month of July of 2009.


[details of affiliations, which were provided for identification purposes only and did not imply any position by the institutions, are not provided here, but are listed in full in the original petition.]


Hector M. Leyva
Werner Mackenbach
Beatriz Cortez
Ricardo Roque
Valeria Grinberg
Ligia Bolaños
Patricia Fumero
Alexandra Ortiz Wallner
Leonel Delgado
Carlos B. Lara Martínez
Julio Escoto
Rodrigo Rey Rosa
Arturo Arias
Jorge Roviria Mas
Waldina Mejía
Rolando Sierra
Jeffrey Browitt
George Yúdice
Carolina Pezoa
Julia Medina
Claudia Ferman
Marc Zimmerman
José Antonio Funes
Erick Blandón Guevara
Douglas Carranza
Yansí Pérez
Claudia García
Guillermo González Campos
Bernardo Bolaños
Giselle Bustos Mora
Xinia Zúñiga Muñoz
Roxana Reyes Rivas
Raúl Rodríguez Freire
Reagan Boxwell
Sebastián Calderón
Silvia Gianni
Karen Poe
Pablo Delano
Emilio del Valle Escalante
Peggy von Mayer
José Cal Montoya
Magda Zavala
Teresa Fallas Arias
Ronald Nibbe
Tania Camacho
Magdalena Perkowska
Sandra García
Marisol Gutiérrez
Olga Solano
Mónica Zúñiga Rivera
Edgard Zuno
Henry Vargas Benavides
Robert Rodríguez Delgado
Julio Blanco
Rebeca Alpizar
Grettel Andrade C.
Marcela Carías
Flor Alvergue
Miguel Barahona
Paúl Martínez
Fernando Galindo Rodríguez
Hugo Gil R.
Diana Campos Ortiz
Sofía Vindas Solano
Sofía González Escalante
Ramón Morales
Stéphanie Rodríguez
David Morales
Marlen Jiménez
Marisol Patiño
Alejandra Aguilar
Adriana Corrales
Roxana Morales Bonilla
Mónica Quirós Villalobos
Vera Gerner
Adrián Cruz García
Mario Salazar
Héctor Hernández
Daniel Solano
Ana Elisa Pérez Quintero
Rolando Canizales
Ana Delia Ramírez Calderón
Karol Carmona
Mayra Herrera M.
Elena Arce Salazar
Christina Schramm
Rafael Zamora Chaves
Mariela Richmond
Deybel Chaves Sánchez
Juan Andrés Montero V.
Lorenzo Montiel Z.
Adriana Alpizar
Roberto Pacheco
María del Pilar Rivas D.
María de los Ángeles Ramírez Chinchilla
Ronald F. Chacón Chavaría
Jeffrey Morales G.
Roberto Zúñiga Garro

August is Honduran Constitutional Law Month!

At least it will be here.

Recurrent themes of discussions of the illegal removal of President Zelaya from Honduras on June 28 have been assertions that (1) the Supreme Court had ordered his removal from office, or had ruled against him in some way that justified his removal; and (2) that the military had to take him out of the country because there was no mechanism in the Honduran Constitution to impeach him.

In this and other upcoming blog posts, I will take apart these linked claims. Neither is true.

To a certain extent, statements by Honduran institutions after June 28 have tended to encourage one or both of these claims.

Constitutional law professors and constitutional theorists who have commented on the issues have tended to do so in such indirect statements that it has been difficult for most readers to actually understand what these individuals are saying.

Meanwhile, former justices, lawyers, and others who appear to be equally authoritative have contradicted the constitutional law professors, reiterating that President Zelaya was disqualified from office by his assumed intentions, while remaining silent on the actual facts of the legal procedures invoked prior to June 28. So, what we will do here is try to explain the facts of the law.

Impeachment

In the hours after the coup, the theme that there was "no way under the Honduran Constitution" or "no mechanism in the Honduran Constitution" to impeach a president emerged. I initially ignored these claims, because the last time I had perused the 1982 constitution there most certainly was.

As passed in 1982, the relevant passages were:

Articulo 205: Corresponden al Congreso Nacional las atribuciones siguientes:
...
15. Declarar si ha lugar o no a formación de causa contra el Presidente, Designados a la Presidencia, Diputados al Congreso Nacional...[etc.]

(Article 205: The following attributes are those of the National Congress:...15. To declare if there are or are not grounds for a case against the President, President-designate, Congress people...)

Articulo 218: No sera necesaria la sanción, ni el Poder Ejecutivo podrá poner el veto en los casos y resoluciones siguientes:
...
2. En las declaraciones de haber o no lugar a formación de causa;

(Article 218: The approval of the Executive Power is not needed, nor can the Executive veto the following resolutions and cases...2. Declarations of having or not having grounds for a case;)

Articulo 319: La Corte Suprema de Justicia, tendrá las atribuciones siguientes
...
2. Conocer de los delitos oficiales y comunes de los altos funcionarios de la República, cuando el Congreso Nacional los haya declarado con lugar a formación de causa;
...
5. Declara que ha o no lugar de formación de causa contra los funcionarios y empleados que la ley determine;

(Article 319: The Supreme Court of Justice, shall have the following attributes...2. To try official and common offenses of high government functionaries, when the National Congress has declared there to be grounds for a case;... 5. To declare that there is or is not basis for a case against the functionaries and employees that the law determines;)

These three sections of the 1982 Constitution established that Congress was responsible for deciding if there were grounds for impeachment; the Supreme Court was charged with trying cases conveyed from the Congress; and the President could not veto the decisions of the Congress.

But when I went to revisit sources for the 1982 Constitution, I found that indeed, specific amendments had removed these sections of the document.

What had happened? Were the people claiming there was no way to bring a truly out-of-control President (or other government functionary) to justice right? What would have possessed anyone to eliminate such important procedures?

Looking for Mr. Impeachment: The Penal Trial Code

The answer starts with reforms initiated in the late 1990s, implemented throughout the current decade, which I will return to in another post during Honduran Constitutional Law Month.

But I won't make you wade through the details I had to navigate to reach the pay-off. There is still a perfectly good mechanism to bring charges for high crimes against high government officials, and it was what was starting to be implemented by the Supreme Court.

Instead of being part of the Constitution itself, these procedures are now included in the revised Penal Trial Code (Nuevo Código Procesal Penal, Decreto 9-99-E) which was effective February 20, 2002. In 2004, the relevant section was amended and regulations finalized in Decreto 195-2004 published December 30, 2004.

Chapter III of the New Penal Trial Code replaces the definition of roles the branches of government have in pursuing high government officials that were previously in the Constitution, adding more rigorous definitions of procedures. I spare you from my temptation to translate Chapter III in its entirety (but do not promise I won't succumb later).

Here, instead, are the bullet points of Articles 414 to 417 which make up this Chapter, whose title can be translated as "Proceedings for hearing of proceedings initiated against the Most High Functionaries of State and Congress members".

Article 414: Establishes that the procedures to be defined are the only ones that can be followed to proceed against high government officials.


Article 415: The Supreme Court receives the request, accusation, or complaint from the competent authority or victim, along with the evidence or an indication of where the evidence can be obtained.

Article 416: The Supreme Court designates one justice to undertake the preliminary and intermediary phases of the case. Following that, three justices and one alternate are appointed to hear oral arguments in the case. A similar process is followed when an appeal follows. The same court hears accusations against both the high government official who has immunity from ordinary prosecution and any others accused in the same action who are not high government officials.


Article 417: Defines procedures for review of any decision by the three-person tribunal that is constituted in Article 416, by the remaining justices of the Supreme Court.


Implications, Part I

If we turn to the Supreme Court process that took place before the June 28 raid on President Zelaya's house, we can see that it was the first step in the process defined under Article 415 of the New Penal Trial Code that replaced the ill-defined sections on impeachment in the Constitution. One justice was appointed to do the primary and intermediary investigations of evidence.

What never happened was the appointment of, nor any actual hearing by, the required three judge Tribunal of Judgment, nor the reviews that Article 417 defined. As previously noted in my translation of the orders emitted by the Supreme Court justice for the military raid of June 28, what they were supposed to do was hold him so that his statement could be taken.

Far from there being no constitutional means to undertake impeachment, what the Supreme Court was doing was starting just such a process. Then the Armed Forces decided to short circuit it by illegally deporting President Zelaya.

Of course, we still need to consider whether the crime(s) of which President Zelaya was accused at the time really were sufficiently grave to trigger the proceedings that started. To answer that question we will need to consider the question of immunity for sitting officials, and consider in rather more depth what precisely President Zelaya was accused of in the complaint that started the Supreme Court process.

[A note: I deliberately posted this in the early morning hours of Pacific time zone, only to find it listed as posted as 15 minutes before midnight on the last night of July. Not sure what the etiquette is here, but this is the first post of August so I am revising it now simply to register that August is Honduran Constitutional Law Month.]

Honduran Skepticism About Democratic Institutions: Some Data and Opinions

Greg Weeks at Two Weeks Notice continues to provide some of the best actual data from studies of Honduran civil society that can be found. His post today, pointing to a soon-to-be-more-widely available study by Mitchell Seligson and John Booth of Vanderbilt University, is especially important to understanding both the circumstances of broader Honduran politics, and some of the motivation among Zelaya government officials for pushing for participatory democracy. But even though I understood the issues, the dramatic quantitative, comparative measures provided in the new Vanderbilt study still shocked me.

Greg notes that the study asks respondents about their satisfaction/dissatisfaction with

three key aspects of political legitimacy: support for democracy, support for national institutions, and evaluation of the government's economic performance.

The results are codified in a ratio of "triply dissatisfied to triply satisfied". In other words, how many people are dissatisfied with all three key aspects, compared to the number satisfied with all key aspects? Pardon me for being professorial here (occupational hazard) but as I deal with statistical data all the time, and find my students even in the doctoral program not prepared to really understand such measures, I want to break this out before reviewing the actual, horrifying numbers.

Say we asked 100 people in the average American city the same questions. Maybe 75 would have mixed reactions; another 10 might be extremely pessimistic and say "dissatisfied" to all three questions; and the remaining 15 might be among those lucky folks who think everything is wonderful. The ratio of triply dissatisfied to triply satisfied in our example would then be 10/15, or 0.66. This is a measure that tells us how large the extreme sentiments are in a society.

Honduras had the highest ratio of people dissatisfied in all three areas to those satisfied in all three areas among the Latin American societies studied. Its 6.17 score was almost twice as high as the next most pessimistic society in the sample (Guatemala, at 3.23).

To over-simplify, the Honduran score suggests that for every optimistic person who is satisfied with democracy, national institutions, and government progress on economic issues, there are more than six pessimistic people.

We want there to be more optimism than pessimism in democracies. When pessimism starts becoming the norm, people lose their motivation to participate, to support the institutions that ensure the survival of civil society.

Here is where the opinion part of this post starts. My friends in the Honduran government who support President Zelaya's attempt to raise the Constitutional reform issue have talked about this pessimism, the disenchantment of civil society with government, as threatening the survival of the Honduran democracy. These are people who lived under, or whose parents lived during, the long period of military rule in the 1960s and 1970s. They and their family members remember and talk about the history of 20th century oppression by dictators marked by violence and imprisonment that, while little known in North America, is a history that Hondurans have worked faithfully to ensure never can be repeated.

The failure of successive democratically elected governments since the 1980s to solve the structural problems of the Honduran economy has, in the opinions of many of these informed participants, eroded public trust in government. My colleagues did not need numbers like those we now have to understand that. So they have worked assiduously in the current administration to support policies intended to alleviate the economic burdens of the poorest members of Honduran society. Miguel Cáceres Rivera puts the case for how the Zelaya administration proceeded to try to address this civic weakness more clearly than any other scholar I know.

While economic justice is powerful, and fundamental, it alone would not be enough to ensure the survival of a democratic Honduras. The disillusion with the nature of democracy itself also needs to be addressed, the dissatisfaction with government institutions. Here, the fact is that the current form of government was constructed in such a way that it almost inevitably would produce such disillusion. Congress, the courts, and the executive branch, as well as state and local governance, institutionalized politics that privilege party operatives, as noted by Rodolfo Pastor Fasquelle. The theory of the Honduran Constitution of 1982 is representative democracy; but the few who persistently are elected are not perceived by a large proportion of Hondurans as representing the interests of the people. The decline in voter participation is one reflection of this. But so is the emergence of activism by social segments that seek a more visible presence, a voice, to participate.

Zelaya government policies not only acknowledged such segments-- women's groups, indigenous groups, african-descendant groups-- but worked on many levels to engage them in a common project of creation of a new vision of the Honduran nation as multi-ethnic and pluri-racial. This is clear in both statements by Zelaya government officials and the flyer the Fuerzas Armadas claims to have seized during their raid on President Zelaya. It is clear as well in statements by segments of society that have never before had an opening to participate fully in Honduran democracy, such as indigenous peoples.

What advocates of Constitutional reform in the Zelaya government are committed to is a project nothing short of countering the spread of pessimism in Honduran society by shifting from a basis of sterile and stylized "representation" to a vigorous level of citizen participation in governance. This is why a non-binding poll was worth risking legal action. Anyone who doubts the necessity for such activism to preserve democratic society in Honduras needs to read the numbers reported by Seligson and Booth and think about what it would mean to live in a society where six times as many people were thoroughly disillusioned as believed in government.