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.

University Rector's Comments on UNAH Confrontation

An article in the pro-coup Honduran newspaper El Heraldo, published Monday, is interesting for a number of reasons.

First, it quotes Rectora Julieta Castellanos, the respect sociologist, highest official of the University, whose man-handling by riot police last week was a shocking breach of university autonomy that underlines how out of control the military/police response is.

Second, it gives an opportunity to have a real eye-witness-- the best eye-witness-- assess who has the responsibility for the violence that escalated after some university students blocked a road in Tegucigalpa and the police over-reacted to this normal form of civil disobedience. Since other commentators have blamed the students for the violence, it is important to listen to Dr. Castellanos. As noted in her own words, she has tried to keep the university neutral in the current crisis, so that it can serve as a site of multilateral debate about Honduran civil society in the future (see this official statement)-- a position for which the university has been criticized.

So these are not the words of a fierce advocate for the restoration of Zelaya; this is what is happening to those who are trying to maintain a civil atmosphere for discourse. Contrast that with the police commissioner's painting of the university as a site of "anarchists" and you have the proof of the contempt for academic debate and free opinion of this authoritarian regime clearly illustrated.

Here's my translation of the article:

"UNAH will not be the stage of this conflict": rector Julieta Castellanos says that the actions of last Wednesday are the responsibility of the Police

The National Autonomous University (UNAH) will not be the stafe of the political conflict in which the country lives, the rector of the alma mater, Julieta Castellanos, said this morning.

"We will not permit that violent deeds be committed and that (the UNAH) would be a stage of this conflict", said Castellanos, for whom the violence in the demonstration of last Wednesday "was a product of the actions of the Police".

The sociologist reacted in response to declarations issued by Danilo Orellana, [police] commisioner, who denounced the highest institution of learning as being used by anarchists.

As well, there have circulated reports that the highest institution of learning was being used as a refuge for unstabilizing groups. "The UNAH is not a lodging for anyone", said Julieta Castellanos in response in an interview with a radio station.

In the judgment of the Rector, it is the police that are involving the UNAH to "justify" the eviction of last Wednesday, when university members came out to demand the return of Manuel Zelaya and were confronted by riot police that arrived with an order to restore activity in the alma mater.

Castellanos said that "she had not appreciated the magnitude of what could happen" last Wednesday August 26.

In respect to the political crisis, she maintained that "we take the position that national dialogue is what we should give primacy to".

She maintained that the demonstrators are "free to do what they wish, to attend the marches that they wish, but that is at the personal level".

Nonetheless, she considers that the political crisis that Honduras is experiencing "will be resolved by the political class".

Is this the coalition that the elites were afraid to see emerge?

An article in tomorrow's El Heraldo, one of the pro-coup Honduran newspapers, describes a "strategic-political alliance" emerging with Carlos H. Reyes, running as an independent candidate for president, aided by Manuel Zelaya, the UD party, members of the Liberal party loyal to Zelaya, and "popular and progressive sectors of the PINU", to be announced in the next few days.

Legally, the story notes, no formal alliance can be established because May 28 was the last day to register such an entity with the Supreme Electoral Tribunal.

The story continues:

But it could be done from the strategic or political point of view, and would consist of a call that the leaders of those parties, movements, or organized sectors that would make up an electorate to vote for a specific presidential candidate and for the Liberal congress members allied with Zelaya, for those of the UD, and of the progressive sectors of the PINU (Innovation and Unity Party).

The story says the announcement comes from UD party deputy Marvin Ponce, who

did not rule out a resignation by Cesar Ham as presidential candidate of the UD to leave open an expedited route for the popular leader Carlos H. Reyes, who is signed on with the Electoral Tribunal as an independent presidential candidate.

Ham, the story notes, is still a candidate, despite supposedly having confessed to an administrative infraction.

Ponce is quoted during an interview on Radio Cadena as saying

We agree with him [Reyes?]. He is a great leader, a great fighter; we are in distinct trenches, but we are making an effort to seek unity, including with the sectors of the Liberal party that are opposed to the coup, progressive sectors of the Pinu, of social movements, with Manuel Zelaya Rosales.

We are going to have a great political alliance in the next days that is going to resound to fight power, now not only hoping to obtain a few deputies, but to fight the power in the country. It will be a great surprise. we are talking about a political alliance to confront the oligarchy in this country

Ponce added that others who would enter into the alliance would include

progressive sectors of civil society, campesino organizations, unions, teachers, indigenous people and peoples who have historically been relegated.

The report ends with statements from members of the Supreme Electoral Tribunal, refusing to be drawn into ruling on whether such an alliance would be legal, ending with a quote from one of these officials that "this could be another type of alliance, that will only be known to the people who will make this type of efforts".

If that is, as it seems to be, a promise not to act against such an alliance on the technical grounds of all formal alliances needing to be registered by May 28, this may be the beginning of precisely the kind of new political movement that Rodolfo Pastor Fasquelle predicted would be one of the products of the coup and its exposure of the rigid conservatism of the Liberal party.

Immunity, Impunity, Impeachment: Some clarifications

To be very, very clear: no court found President Zelaya guilty of anything prior to his summary and unconstitutional expatriation on June 28.

The Supreme Court had admitted a complaint filed by the Public Prosecutor, and had begun a process of discovery of evidence, including issuing an extremely problematic, secret order that the military (not the constitutionally authorized National Police) carry out a raid on President Zelaya's house to detain him and take his statement, presumably accepting the Prosecutor's claim that the President was a flight risk.

In a previous post, we have demonstrated that the Supreme Court was employing the legal mechanism contained in the New Penal Processual Code published in La Gaceta May 20, 2000, which came into full effect February 20, 2002.

It was not until the passage of Decreto 175-2003 eighteen months later, published December 19, 2003, that revision of the relevant section of the 1982 Constitution, Article 205, point 15, changed the branch of government responsible for initiating legal action against high government officials from the National Congress to the Supreme Court.

It is critical to understand that these changes had less to do with establishing a mechanism to do the equivalent of impeaching high government officials, and more to do with solving a political problem caused by the abuse of immunity by Congress members.

The entangled concepts here are impeachment and immunity. Impeachment is understood as a process to accuse a public official of a crime, and remove him or her from office. Immunity is the idea that high government officials cannot be legally prosecuted for crimes while in office. This means that to punish government officials there first needs to be a proceeding to remove them from office. These are concepts rooted in British common law. Honduran law was based in different sources.

It was at the point that Decreto 175-2003 took effect that it became possible to argue there no longer was a constitutional mechanism for impeachment. Instead, from the date of publication of this decree, high government officials were subject to prosecution before a special panel of the Supreme Court.

Article 55, point 1 in the New Penal Processual Code explicitly defined as one of the exclusive rights of the Supreme Court to undertake legal cases against personas que gocen inmunidad ("persons who enjoy immunity") under the Constitution and legal codes.

The 1982 Constitution referenced immunity only in Article 200, defining the prerogatives of members of Congress (and did not mention immunity, for example, in the definition of the prerogatives of the Executive branch).

The original Constitutional article 205, no. 15 had said that the National Congress had the power to "Declare if there was or was not a place for the formación de causa against the President". Formación de causa here means "making a case". The case being made was for lifting immunity from prosecution (desafuero) of the high government official accused of a crime.

Originally, once the Congress considered there was enough basis to make a case against one of the high government officials enumerated, starting with the President, the Supreme Court had the power to hear the case (literally, conocer, the same verb as "to learn" or "to know").

Decreto 175-2003 paired the elimination of the role of Congress in identifying whether there were grounds for a case with an amendment of Article 200 of the Constitution, eliminating the immunity (inmunidad, exención) that had previously been enjoyed by Congress members.

The elimination of immunity was sparked by public outrage about a spate of highly visible crimes by congressional deputies, from rape to drug trafficking, which led to the accusation that in place of immunity, these deputies were operating with impunity (impunidad). The latter word is important because it is repeated in debates about President Zelaya, where in a Honduran context it would resonate with this recent set of public outrages.

Honduran legal scholar Rigoberto Cuellar Cruz notes that the form of immunity in the Honduran constitution was intended to cover accusations stemming from the actions of deputies in the process of making law, not to serve as a kind of "sovereign immunity" from all criminal prosecution.

It became politically expedient for Congress to allow such crimes by Congressional deputies to be prosecuted. Press coverage at the time said that political immunity, which dated from 1957, also covered the President, vice presidents, congress members, judges, cabinet ministers and their assistants, mayors, and officers of the armed forces, apparently by extension of the immunity enjoyed constitutionally by the National Congress.

The revocation of congressional constitutional immunity thus extended to other high government functionaries. This allowed the New Penal Processual Code to become the basis for prosecution of all high government officials.

A revision of the section of that code dealing with prosecution of high government officials followed. Decreto 195-2004 became effective when published on December 30, 2004. It gave the Supreme Court the legal authority to try high government officials, rather than following the "ordinary" process of lower courts that was applied to most citizens.

So from the perspective of Honduran constitutional and criminal procedural law, there is no need for a special impeachment procedure because the President, like other government officers, has no special immunity. What was retained from previous codes was a special procedure that protects sitting government officials from being subjected to the entire sequence of trials and appeals that would start in a lower court. Honduran legal scholar Rigoberto Cuellar Cruz notes that since the reform took effect, five high officials have been tried, including congressional deputies, cabinet ministers, and a previous President.

Yet in his assessment of the benefits of these reforms, Cuellar Cruz sounds a warning that is quite pertinent:

The second objection [to the reform] results from the fear founded in the sense that the political criteria that up till now has ruled in the decision whether or not to initiate a legal proceeding against deputies or other high officials, will continue intact: reducing the reform, in this case, to a simple change of place, from the Legislative Power to the Judicial Power.


A potential danger that, if it in fact happens, will be translated into a real frontal attempt against the independence of the latter (Judicial Power), in fulfilling its due and obligatory impartiality, and with that, a direct attempt against an essential concept that constitutes a State of Law.

The politicization that Cuellar Cruz feared would simply be transferred from the National Congress to the Supreme Court has indeed come to pass. So while we can say the Supreme Court was following the form of the proceeding outlined in the New Penal Processual Code, it is questionable whether the complaint they considered and acted on should really have been pursued.

The next question becomes: what does Honduran law allow as a penalty if a high government official is found guilty? would it really have been impossible to hold a sitting President responsible for his actions? To answer these questions, we need to start looking in detail at the law applying to the crimes of which President Zelaya was accused, a discussion we can most profitably start by examining the most serious charge made by the prosecutor: treason.


Timeline of applicable constitutional and criminal law:

• 1982: Constitution establishes immunity for congressional deputies (Article 200) and defines the National Congress as having the role of determining if there is a basis for trying high government officials (Article 205, no. 15), and the Supreme Court as hearing such cases.

• February 20, 2002: New Penal Processual Code, Decreto 9-99-E, comes into effect, establishing in Article 55, point 1, that the Supreme Court had authority over trials of officials who enjoyed immunity, and outlining procedures for trial of high government officials in Chapter III.

• December 19, 2003: Decreto 175-2003 changes the branch of government responsible for initiating legal action against high government officials as established in Constitutional Article 205, point 15 from the National Congress to the Supreme Court. It also eliminates the immunity formerly enjoyed by members of congress.

• December 30, 2004: Decreto 195-2004 revises Articles 414 to 417 of the New Processual Penal Code to remove the National Congress from the process of trying high government officials, and affirms the role of the Supreme Court in hearing such complaints and ruling on them.

Or maybe Micheletti will let Insulza watch...

La Prensa of Honduras, one of the pro-coup papers, now reports that Insulza can tag along as an "observer" on a rescheduled OAS visit.

Not specified is if he has to provide his own gag or if one will be provided for him.

This would be funny if it were not so clownish. Micheletti and his gang, inspired by the dreadful Lugar letter, appear to think the OAS mission will clear up all the confusion-- and also that everyone else is not aware of their repeated stalling techniques.

They appear to think they are strategic geniuses. It is clear policy for them to attempt to suppress public information; but I would have thought they would make an exception for themselves.

The troubling thing in the La Prensa article is that the publisher set in bold face the phrase saying that Micheletti objected to the exclusion of member states who they claim "have an attitude of openness to reconsider our case".

This is delusional but it is the heart of the problem. The regime believes they can win reconsideration.

Also new in this article: the regime's "ideal" committee would be Brazil, Germany, and-- England!

Are we talking about the OAS or soccer?

Micheletti tricks OAS again: no visit just propaganda

Telesur, and now AP, are reporting that the OAS has been uninvited by the Micheletti regime due to Insulza's "intransigence".

The choice of words cannot be an accident. Intransigence is the word used repeatedly to describe Micheletti's refusal to accept the non-negotiable return of President Zelaya.

It always seemed mysterious that Micheletti agreed to a visit. Requesting one was one thing; it was part of a strategy to delay and delay.

Micheletti used this as a way to show commabd. He demanded that no foreign minister of an ALBA country be included.

Now Micheletti is demanding the removal of the head of OAS. He gets to bar access to Honduras while still claiming a propaganda victory in the country.

How so? The mere visit was trumpeted in pro-coup press as a form of validation. Not just the overt " now they will see how peaceful things are" (despite road closings continuing and 20,000 Lenca rejecting an attempt by Micheletti to 'open' a bridge built by the Zelaya government-- not to mention strikes by the teachers union, meteorologists, electrical company, health care, and many others numbering tens of thousands of workers).

More than that, Micheletti is functioning as if he were a legitimate head of state. First Arias, now OAS let him be seen as the "President" and in the process allow themselves to be used as props.

As skeptical Honduran colleagues note, treating Micheletti as a valid agent simply reinforces him. In Honduras, his control over most media means he spins things as he wishes and meanwhile plays out the clock.

While State Department Waffles, Honduran University Members are Beaten

As news comes that the State Department has assured Senator Richard Lugar that they do not actually support President Zelaya (confirming the opinions of most of my Honduran correspondents), that they blame him for "provoking" the coup (recalling other forms of blaming the victim whose actions draw violent responses), and that they have no intention to use their economic leverage (reassuring the Micheletti regime that they can dig in and wait and eventually they will get away with their coup), the regime's threatened escalation of violence comes to fruition, unfolding as I write in the National University campus in Tegucigalpa.

Here, reports from multiple correspondents, echoed by Telesur and Tiempo (of Hondurs), note that the National Police are using tear gas, beatings, and shooting at students and faculty who were engaged in peaceful protest of the illegitimate regime that is stealing their freedoms.

Among those victimized by this violence: Julietta Castellano, Rector (equivalent to Chancellor) and respected symbol of the integrity of this institution. According to Olvin Rodriguez, member of the Junta Directiva (executive committee) of the university, as they were exiting with their hands up in response to police demands, they were set upon, beaten, and thrown to the ground. He writes that "Not even in the epoch of repression by the bloody General Alvarez Martinez in the 1980s was the autonomy of the university violated as it was today."

The reference is to the dictator who preceded the period of almost thirty years of constitutional rule destroyed in the coup of June 28. As Honduran commentators have argued, the damage being done to the fabric of civil society will not easily be repaired.

An email report from the scene sent to me at 1:45 describes a scene of horror:

A half hour ago, the police force and military of the dictatorial regime imposed on Honduras, has initiated a vandalistic offensive against the National Autonomous University of Honduras. With the pretext of dissolving a peaceful demonstration of resistance that the students were carrying out at the entry to the University in Tegucigalpa, they began to throw tear gas, and as the students fled to the interior of the university grounds, they have pursued them and continue their human hunt at this moment, with SHOTS. The Rector and members of the Junta Directiva of the University, who had come out to dialogue with the police and military, have been assaulted in their physical integrity, thrown on the ground, grabbed with blows.

There are wounded, the cruel repression continues in the present moments. Colleagues, students and administrators from within the University are calling us, anguished, they cannot exit, they are shooting at them, breaking in the windows and walls, the tear gas has entered the university halls, they feel they are suffocating and are afraid to come out and be shot with bullets.

Meanwhile, a second correspondent, whose father is among those trapped on the campus, writes that Radio Globo is reporting that at least three wounded have been transported by a Red Cross ambulance for medical care. These reports also say the Police Commander Somoza, supposedly in charge, disclaims any knowledge of whoever is giving orders to this contingent of police and military. Radio Globo reports that students have armed themselves with stones and are attacking the police and commandos, pushing them back, but that strong reinforcements are coming for the military.

It is imperative that the US State Department NOT BE ALLOWED to ignore these latest acts of violent repression by the Honduran regime. The State Department MUST DENOUNCE these actions, and must take action to punish the regime and induce it to cease its campaign of terror against its citizens.