After the monumental events of June 28, Hondurans ought to reflect
whether civil society’s fight for strong institutions, such as the new
Supreme Court with 15 justices dedicated to the application of laws and
the functioning of the system, has been worth it.
In many
places, especially in Tegucigalpa, there are white billboards, many
with the images of farmers, thanking Roberto Micheletti, the Supreme
Court, and the Armed Forces for “defending our Constitution.” But on the other side there is a large section of the population the denounces the actions of June 28 as a coup d’état.
But let's review the facts and the arguments that have been presented:
After
the arrest and expatriation of President Zelaya, the National Congress
met in an emergency session and voted to accept the supposed letter of
resignation signed by Zelaya, and then replace him in a “constitutional
succession.”
The Supreme Court released to the general population the case file for Manuel Zelaya.
Many
people, from religious leaders to members of civil society, have tried
to explain why Zelaya’s expatriation was necessary. But what does the
constitution say?
The following arguments have been used to justify the coup:
1.)
What happened was a constitutional succession, because the prosecutor
presented charges against Zelaya, and the Supreme Court ordered his
arrest. On June 25, 2009, the prosecutor’s office presented the charges against
President Zelaya, accusing him of the following crimes: attempting to
change the form of government, Treason, Abuse of Authority and
Usurpation of Functions, as well as attempting to hold a survey to
justify the creation of a National Constitutional Assembly.
On
June 26, the Supreme Court, responding to the charges filed against
Zelaya, issued an arrest warrant, directed at the head of the Armed
Forces to execute Zelaya’s arrest. It was signed by Justice Tomas Arita Valle (from the Labor Court). Another arrest warrant was emitted to Coronel Rene Antonio Hepburn to raid Zelaya’s house.
On
June 29, the Supreme Court expressed in its document of considerations,
“Considering that it is public and common knowledge that citizen José
Manuel Zelaya Rosales has ceased to hold office as constitutional
President of the Republic, the reasons for which were presented in
these charges filed in the Supreme Court of Justice, so that the
established procedure of the penal code that regulates the process for
prosecuting the State’s highest officials… Resolves: To remit these
charges to the Penal Court of Letters of the Department of Francisco
Morazán to continue with the ordinary process established in the Penal
Code.”
2.) What happened was a Constitutional Succession because the Congress approved it. The Congress voted in Decree 141-2009 to
remove Zelaya from office as President. This decree was approved right
after Zelaya was sent to Costa Rica. In this decree, Congress argued
that since no one is above the law and President Zelaya’s conduct had
been erratic, Congress would disapprove of his conduct, remove him from
office and replace him with President of Congress Roberto Micheletti.
This Congressional decree backs the arrest warrant issued by the Supreme Court on June 26.
3.) What happened was a constitutional succession, because Zelaya violated Article 239 of the Honduran Constitution. Manuel
Zelaya was proposing a National Constitutional Assembly, which, it was
expected, would result in a new constitution. Although most articles
can be reformed, this is not the case with the so-called “articles set
in stone,” which are those that refer to the form of government,
national territorial boundaries, the presidential term limit, and the
regular election of new presidents.
Since there are only four
articles that cannot be ammended except by Constitutional Assembly, it
can be deduced that Zelaya had the intention of changing at least one
these. If this were the case, the succession was fair because anyone
who suggests or supports reforming any of these articles immediately
looses public office, according to article 239.
This article
says: “Any citizen who has served in the Executive Power cannot be
president or vice-president of the Republic. Whoever breaks this
disposition or proposes its reform, as well as anyone who supports it
directly or indirectly, will immediately loose his position and be
unable to perform any public function for a period of 10 years.”
The problem with these three arguments:
1) The Supreme Court: There are four problems with this argument.
1. According to the Constitution, the Supreme Court has the legal authority to judge high-ranking officials but must follow the Penal Code by holding a trial with four members of the Court. This did not happen, however, as Zelaya was expatriated.
According
to Article 312 numeral 2) of the Constitution: “The Supreme Court will
have the following attributes: Be familiar with cases opened against
high-ranking government officials and deputies.” But the constitution
does not provide instructions for carrying out the trial. For that, the
Penal Code must be consulted.
The Penal Code has
four articles about how to carry out a trial against a state executive.
Articles 414-417 give the following provisions for a trial: • The Supreme Court is made familiar with the charges, which were presented by the Attorney General. •
The Supreme Court will designate a Justice to become familiar with the
case. If there is a trial, three Court Justices will preside.
It
seems that the Supreme Court began this process but only got as far as
designating a Justice to read the case. It never reached trial, because
the army took Zelaya to Costa Rica instead of presenting him to the
judge.
The Supreme Court’s decision included various arguments
and references to the Law but no legal justification for removing the
President from office. In particular, a section on page 80 of Court-issued documents points
out, “it is public and common knowledge that citizen José Manuel Zelaya
Rosales has ceased to hold office as constitutional President of the
Republic” without explaining either how this knowledge existed or how
Zelaya had ceased to hold office.
2. It is interesting to note
that the document issued on June 29, 2009 contains the signatures of
only seven of fifteen Supreme Court Justices, eight short of the full
session that the case required. Secondly, in this and other
court-issued documents, the signature of Germán García appears as an
“Integrated Justice” instead of Supreme Court Justice Carlos Cálix’s.
If the decision to arrest Zelaya was unanimous, why was it signed by an
acting Supreme Court Justice and what powers does he have?
3.
The document was issued on June 29, one day after Zelaya had been sent
to Costa Rica and three days after the arrest warrant had been issued.
4.
Supreme Court Judge Tomás Arita issued an arrest warrant to the Armed
Forces, whereas the authority to carry out arrests corresponds only to
the National Police. Did Tomás Arita not know this?
2) Congress: There are three problems with this argument.
1.
Congress agues that President Zelaya was violating the law
(specifically assault on the form of government, treason, abuse of
authority and usurpation of functions against public administration and
the State of Honduras); however in none of these cases does Congress
have the power to remove a president from office. Only the Supreme
Court can do this as described above.
Congress, in its decree to remove the President from office, cited various articles
of the Constitution with the intention of justifying its actions: 1, 2,
3, 4, 5, 40 number 4, 205 number 20, 218 number 3, 242, 321, 322 and
323; however none of these articles gives Congress the power to remove
a president from office. In fact, according to law professor Olvin
Rodríguez of the Autonomous National University of Honduras (UNAH),
“Congress removed the President from office without having the express
or tacit, explicit or implicit constitutional powers to do so.” Article
205, which defines Congress’s powers, makes no provision for penalizing
the President. Congress has not been able legally to justify its
action; nevertheless the Supreme Court has not declared it illegal.
2.
Because Congress presented the decree after the army had already
removed Zelaya from the country, it seems to have been an effort to
justify the action.
3. Twenty-one congress people, among them Elvia Valle, affirm that they were not called to the vote on the decree, and 26 voted against it. This indicates that the vote was neither transparent nor unanimous.
3) Article 239 of the Constitution Days after the coup d’état, many of its supporters, such as Roberto Micheletti, cited Article 239 to justify it; but there are problems with this argument, too.
1. Neither Congress’s decree nor the Supreme Court documents mention this article.
2.
There are no regulations for implementing Article 239; it is considered
to be self-executing. That means that the moment someone proposes to
reform the Article, he or she automatically forfeits public office;
however, according to international law expert Doug Cassel of Notre Dame’s Law Faculty, this concept raises even more questions:
“…[T]o
treat this provision as “self-executing” is problematic. For example,
if President Zelaya violated Article 239, when did he cease to be
president? Months ago, when he openly began to advocate a
constitutional reform to allow his re-election?[56] And who is to say?
Do the courts decide? Does the Congress? What if they disagree? What if
the president disputes their accusation? What is the evidentiary
standard? How and when does Honduras know that it no longer has a
lawfully elected president? Plainly Article 239 is unworkable without
some procedure to implement it.
Rigoberto Cuellar, a Honduran
Constitutional specialist, explains that because Article 239 is so
open, Congress has the right to declare that Zelaya was violating it;
and, even though many (foreigners) disapprove of the Article, it
continues to exist, and Congress must interpret it. “There are two ways
to remove a president from office, although the Constitution does not
speak only of presidents but also of any public official. One is
following a strictly judicial course and another is following a
strictly political course,” says Cuellar. “Our country, like most
countries, conceives of both courses. Where our Constitution falls a
little short is that it does not develop with exactness the procedure
that should be followed for a political trial... that although the
Constitution does not say it, in a political process, the entity
responsible for issuing the decree (regarding Article 239) is Congress.”
On
the contrary, according Article 304 of the same Constitution,
juristictional organisms are responsible for deciding cases and
executing rulings.
But even if Dr. Cuellar were right,
although Congress creates and interprets laws according to Article 205
of the Constitution, the Supreme Court applies them according to
Article 304. If Congress had voted after a trial, it would have had the
legal backing for removing the president from office; but Congress
voted without due legal process.
3. The historical application
exposes further problems with Article 239. For example, Roberto
Micheletti lead a campaign to reform the constitution in 1985, just
three years after he had helped draft it, so that then-President Suazo
Córdoba could remain in office. Micheletti thereby directly and
publicly committed the same crime of which he accuses Zelaya.
According
to Cuellar, proposing a constituent assembly constitutes an attack on
the Constitution since, according to him, there is no other reason for
writing a new constitution but to change the inalterable Articles; but
then, if we base ourselves on the letter of the law, Micheletti should
have been removed from office in 1985, and Pepe Lobo should have been
suspended from all public office for ten years after voicing support for a constituent assembly in May of this year. However, in these cases, there was no “self-execution” of the law.
“In
his eagerness to win votes (Pepe Lobo) said that he would favor a
constituent assembly,” said Cuellar. “This, according to the
Constitution, is a crime.”
This interpretation begs further
questions. If merely proposing a constituent assembly violates Article
239, why did Congress not vote the moment Zelaya proposed a constituent
assembly? Why did the Prosecutor’s Office not launch an investigation
before the end of June? Is it possible to form a constituent assembly
without changing the inalterable articles?
4. Interpreting
Article 239 as self-executing violates other articles of the
Constitution. If Article 239 is self-executing, it would seem to
violate the articles that guarantee the right to freedom (61 and 69),
the right to defend ones self (82), the principle of innocence (89) and
the right to due legal process (92 and 94).
Upon deciding not
to proceed with a trial, the Supreme Court and Armed Forces acted as if
they did not have the proof necessary for convicting President Zelaya,
or they did not believe that the justice system works.
If Article 239 is self-executing, it violates every citizen’s right to be assumed innocent until proven guilty.
In
any case, Zelaya did not respect the law either, because he continued
preparations for the referendum against the orders of a judge of
Administrative Dispute.
So José Manuel Zelaya does not believe that the justice system works, either, or he didn’t want it to work.
Two Mistakes If
the coup d’etat stands, this essentially affirms that Congress had the
power to remove a president from office, which sets precedents for the
future. But it is clear that the powers of the State made two very
important mistakes that have left the Honduran people with very
dangerous precedents.
1. Article 102 of the Constitution was
violated, which says “No Honduran can be expatriated or handed over by
the authorities of a foreign State.” This article could not be clearer.
As law professor at the Autonomous National University of Honduras Ramón Enrique Barrios says,
“Regarding the fact that they invoked the figure of the state of
necessity to remove him from his country, the order issued by the judge
was to arrest him, not to expatriate him from his country (which
violates the Constitution).”
The Armed Forces says that they
made this decision in order to avoid a violent uprising upon arresting
President Zelaya. The Armed Forces’ legal advisor admits that Zelaya’s
expatriation was illegal. Where is the report on these events? Why has
the Constitutional Court not requested an explanation from the Armed
Forces?
“We know that there is a crime there,” said Coronel Herbeth Bayardo Inestroza on news site Elfaro.net. “The moment we removed him from the country, in the way in which he was removed, there is a crime.” Dr.
Cuellar says that this act was, in his opinion, the only illegal act.
According to Cuellar, the Court can argue that the military acted
because of the state of necessity, but a judge would have to make this
determination.
“The military supposedly unilaterally made the
decision to expel him from the country, this is something else,” said
Dr. Cuellar. “And there, the military’s responsibility for this act
will have to be determined. They should be tried.”
2. Zelaya was
not given any opportunity to defend himself before the Supreme Court of
Justice. Essentially, the high officials were those who decided that
Zelaya was guilty without previously having followed due process.
Articles 92 and 94 guarantee a fair trial for each person accused of a
crime. The coup and documentation presented after the coup to justify
it is not transparent, just as the way in which the popular survey was
convened was not transparent and therefore smacked of corruption.
In addition, one when Congress read Zelaya’s resignation letter,
which is suspected to be false, it seemed that it was being used to
hide the fact that due process had not been followed and to cover their
illegal actions because they never mentioned it in the decree or in the
documentation published after June 28. This also smells of corruption,
and has provoked further distrust of the justice system.
Dangerous Precedents The
Constitution was written to provide the government with clear laws to
be followed in the different situations in which the country may find
itself. It was supposedly written rationally and carefully. Therefore
it is very important that when a crisis arises, high officials act not
according to external influences or their own interests but rather
according to the letter of the law, always seeking the well-being of
Honduras and its people.
Throwing the Constitution out the
window means that there no are no longer rational laws for delimiting a
government’s actions. Citizens should fear that high officials think
they can manipulate the law and deceive the people.
We do have laws, but the problem is the functionaries who apply them. They provoke distrust in our justice system.
Honduras is now known at home and abroad as corrupt (Honduras
is in the first third of the world’s most corrupt countries according
to Transparency International) and will have to fight even harder to
restore its reputation. A matter as important as the destitution of a
president should be carried out with transparency and legal backing.
High officials should have been able to prove to the world that the law
rules in Honduras, but instead they showed the world that even the
country’s high officials do not believe that the system works. Now,
according to Cuellar, no side can say that it really defends the
Constitution. “Both groups, or let us say the representatives of
both groups, President Manuel Zelaya as well as President Micheletti,
the people behind Mel Zelaya and the people behind Micheletti, have
lost their legitimacy to be able to maintain the positions that they
are maintaining,” said Cuellar. “Neither of the two can speak of
defending the constitutional order or respecting law or democracy. And
we Hondurans know this.”
If those responsible for Zelaya’s
expatriation are not investigated, the Armed Forces’ violation of the
Constitution of the Republic will be justified, and the Armed Forces
would then be above the law. This precedent is a set-back from the 80s,
and it is what the world wants to avoid; but President Zelaya should
also be tried for disregarding a judicial order when he insisted on
carrying out a popular survey in violation of a court order to desist.
There
is also the dangerous precedent that government branches can commit the
same actions in the future; let us imagine, for example, that a
president promotes very good changes legitimately oriented a helping
the country’s poor, and officials of Congress and the Supreme Court
decide that they do not like what he or she is doing, then they will be
able to expatriate the president without legal justification. No one
wants this to happen as a result of the current crisis. What is done
now will definitely have implications for the future. If those
responsible believe that their actions were necessary to avoid
violence, then they should turn themselves over to show that they acted
in good faith. They should not hide their acts and pretend that what
happened was legal. As Hondurans, we deserve to know the truth.
Therefore,
Zelaya should return to Honduras to submit to a transparent, legal
trial and be sentenced if he committed a crime. The same should happen
with those who orchestrated the coup. It is the only way to respect the
Constitution that supposedly everyone wants to defend.