“The decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”
—President Andrew Jackson
The common misquote of the above is much sexier: “John Marshall has made his decision; now let him enforce it!” Which is not a bad summary of Manuel Zelaya’s throwdown when his country’s Supreme Court told him that he could not go ahead with his planned referendum on repealing term limits. Zelaya’s “No one will stop Sunday’s vote!” is on a par with Jackson’s aphorism.
In fact, it is worth considering what was in Zelaya’s televised speech on Sunday, after the Honduran Supremes slapped him down. “The Court of Justice, which makes justice only for the powerful, the bankers and the rich of this country, has declared illegal the people’s participation in a legitimate and constitutional poll ... What a shame for all Hondurans, this Court of Justice! We’re in the presence of a technical coup d’état. It’s a swipe at Honduran democracy. I want to appeal to the commanders of the Armed Forces, the officers and the soldiers. They are part of the people, they should not play this game of the media elite and economic oligarchy, of a deviant bourgeoisie.”
Why is this significant? Because Honduras could have avoided this crisis with a better constitution. The Honduran constitution had two major flaws. First, it took re-election off the table forever. I mean that quite literally. Read:
Article 5: Voting in advisory plebiscites is mandatory. Projects intended to reform Article 374 of this constitution will not be objects of referenda or plebiscites.
Article 373: The National Congress can alter this Constitution in ordinary session with two-thirds of the votes of all members.
Article 374: In no case can be reformed the previous article, this article, the constitutional articles that refer to the form of government, the national territory, the presidential term, the prohibition that no citizen can again be president who has carried out the role under whatever title, and the one referring to those who cannot become president of the republic for the subsequent period.
It is a bad bad idea to declare any procedural part of a constitution to be forever inviolable. The U.S. constitution does this in respect to the apportionment of the Senate, and that is a bad idea that may yet come back to haunt us.
The Honduran constitution then added insult to injury with its second flaw: a complete lack of procedures by which the courts, legislature, or popular opinion could remove a sitting president for breaking the law. The closest is Articles 321-327, which lay out the responsibility of public servants and organisms that break the law and cause civil damages to individuals, or Article 233, which lays a pretty draconian anticorruption law. But neither really apply in this situation.
In short: Zelaya broke a stupid constitutional clause. Twice, in fact, first by firing an officer who refused to administer an unconstitutional referendum and second by proceeding with the referendum anyway. Congress could not do anything. At that point the increasingly-angry military, acting in concert with the Supreme Court, decided to extraconstitutionally remove the president from office.
I do not like it. But I am also not sure that this is an abrogation of democracy either. Judging by their statements, the Obama Administration is equally torn: they would like Zelaya back, but they aren’t going to wade into another country’s Andrew Jackson moment.
What do you think?
P.S. I am not a fan of Andrew Jackson.