The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Friday, October 2, 2009

Ring Around La Constitución

A Congressional Report Legally Attempts to Justify the Honduran Coup . . . And Falls Short

An article in the current issue of Newsweek cites a new report prepared by the Congressional Research Service that finds both the Honduran National Congress and Supreme Court “used its powers as needed” in removing former President Zelaya from power. “It’s a rare situation,” Newsweek goes on to fret, “that a Congressional legal review found clear legality in removing Zelaya from power [which] stands at odds with the current policy of the Obama Administration.”

Well, maybe not quite so rare in a democracy. After all, Honduras calls itself a democracy and the legislators in its National Congress warned on Thursday that Zelaya’s Presidential successor, Roberto Micheletti, had better lift the emergency decree he issued earlier this week banning civil liberties, as he promised yesterday, or they would do it for him.

In addition, characterizing what the Congressional report found as “clear legality” is also a bit of a stretch. At times, the report is as much at odds with itself as Newsweek seems to find U.S. foreign policy, as much at odds as Honduras with itself regarding this sorry situation. As per the report –

Back in March, then-President Zelaya issued an Executive decree ordering the National Institute of Statistics (INE) to conduct a public referendum during the 2009 general elections as to whether to convene a National Constituciónal Assembly for drawing up a new Honduras Constitución. Many feared, probably correctly, that Zelaya’s purpose was removing Presidential term limits, thereby allowing him to run for office again.

The Honduras Chief Prosecutor filed suit before the Court of Administrative Litigation, alleging Zelaya was overstepping his authority and the Court declared the referendum illegal and nullified. Not one to give up easily, Zelaya issued another Executive decree in May, rescinding the previous decree and ordering a national opinion poll in its place. The Court immediately clarified its earlier decision by explaining the suspension of the referendum automatically extended to any other acts “which might be conducive to the same [ends].”

Zelaya ignored this ruling, going ahead with plans for the poll and ordering the armed forces to lend logistical and all other necessary support to the INE. At this point, the Chief Prosecutor filed a Criminal Complaint before the Honduras Supreme Court, requesting Zelaya’s arrest and accusing him of “acting against the established form of government, treason against the country, abuse of authority, and usurpation of functions.”

The Supreme Court voted unanimously to appoint one of its Justices to hear the complaint. After doing so, the Justice in question issued an arrest and raid warrant, ordering the Chief of the Joint Chiefs of Staff to implement the warrant.

The U.S. Congressional report analyzing the legality of what happened, prepared by Norma C. Gutiérrez, Senior Foreign Law Specialist for the Law Library of Congress, concludes everything that happened up to this point was wholly regular and within the law. The Honduras Constitución (Article 313, Section 2) grants the Supreme Court the power to hear cases against the highest officers of the State and further grants it the power to request the assistance of public forces to obtain enforcement of its rulings (Article 306).

However, as the report notes, in what is surely droll understatement for even a Congressional document, “The process at the Supreme Court did not continue due to the events that occurred after Zelaya’s arrest.”

The tacit purpose for arresting Zelaya was to place him under custody so he could stand trial for his accused crimes, a right (or punishment, depending on how you look at it) guaranteed him by the Constitución. However, the Honduras military, either of its own initiative or under instructions from parties unknown, “acting apparently beyond the terms of the arrest warrant,” chose instead to forcibly remove Zelaya from his bedroom, at gunpoint, and deposit him, still wearing his pajamas, in Costa Rica the next day.

This was in direct violation of the Honduras Constitución (Article 102), which states, “No Honduran citizen may be expatriated nor handed over to the authorities of a foreign State.” According to Honduran officials, this action by the military is “currently under investigation.”

Note also that a vote of the entire Honduran Supreme Court did not order Zelaya’s arrest but rather a single Justice. This is perfectly in line with Honduran law but there is a difference between the two things. It is analogous to Bush v. Gore’s resolution resting solely on Justice Scalia’s order to halt the vote recount in Florida without the subsequent unanimous decision by his peers upholding it.

Then there is the matter of whether the National Congress had the power to apply Articles of Impeachment against Zelaya and, if so, whether they properly exercised them. The Honduran Constitución once provided the Legislature with the power to impeach the Executive (Article 205, Section 15), although it never bothered to define the procedure by which this could be done. Perhaps due its vagueness and/or for other reasons, the National Congress voted explicitly to strip this power from the Constitución with Decree 175-2003.

Thus, the Honduras Constitución not only lacked details for impeachment proceedings, it also lacked any explicit authorization for the National Congress to impeach.

The Constitución does give the Legislature a variety of other options to help check the Executive. It may “approve or disapprove the administrative conduct of the Executive” (Article 205, Section 20), it may “appoint special commissions for the [purpose of] investigation” (Article 205, Section 21), it may “receive complaints of violations against the Constitución” (Article 208, Section 5), and it may fill vacancies in the offices of President and Vice-President if the current holders are “absolutely unable to discharge the powers and duties of their office” (Article 205, Section 12).

The Honduras Constitución also maintains (Article 205, Section 10 and Article 218, Section 9) that the power to interpret the Constitución rests not with the Judiciary, as in the United States, but with the Legislature. The U.S. Congressional report reasons the National Congress correctly exercised this power by interpreting “disapproving” of Zelaya’s conduct to include removing him from office in retaliation for it.

Such flexibility when government faces emergencies, especially when lacking specificity or past precedent, is one of the things many scholars admire most about the U.S. Constitution. But was this really the situation faced in Honduras?

The likelihood of Zelaya causing chaos, violence, death, and destruction by forcing an unauthorized public opinion poll on the voting populace seems minor. More than this, however, the reasoning by the National Congress that it had implicit authority to impeach in 2009 when it had chosen to strip that same explicit authority from itself in 2003 is nothing short of astounding.

Finally, the National Congress did not issue its decree authorizing impeachment until two full days after Zelaya’s arrest and a day after his removal from the country. It is best to attempt legalizing coups before they are fait accompli.

Zelaya has still never received a trail, in abstentia or otherwise. The Honduras Constitución (Article 313, Section 2) grants the Supreme Court the power to hear cases against the Executive. In accord with this power, the Honduras Code of Criminal Procedure provides that the Supreme Court must hear all cases against the Executive.

However, even Newsweek agrees the current Honduran regime has “skirted the issue” by referring Zelaya’s case to the Unified District Trial Court, arguing Zelaya is technically not President any longer (i.e. we don’t need to hold a trial to determine if we removed him legally because he has been removed).

So let us review. A dastard commits an illegality and flagrantly flaunts authority by so doing. Ordinary citizens are outraged. “We ought to do something about this,” one of them cries. Agreement spreads through the crowd and it mobilizes into action. Soon the villain faces “justice,” delivered swiftly and at the end of a gun. The scenario I just outlined has a name but it is “lynch mob” and not “Constitutional democracy.”

The truth is in the U.S. Congressional report. However, like so many things in Honduras these days, it appears the truth can be interpreted to mean anything the government – or even just one person in the government – decides.

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