More on the Honduran constitution

  Hmm.  My opinion of the coup is moving back towards legal. 

In November 2003, the Honduran government (still under President Maduro) amended the constitution.  (You can find a history of all Honduran constitutional reforms here.)  The reason, ironically, was that they wanted to repeal the traditional absolute immunity held by high government officials in both the executive and legislative branch.  Thus, they repealed Article 205, clause 15, which had read: 

[Congress has the power] To declare if there is cause against the President, presidential delegates, Congressional deputies, Supreme Court justices, members of the National Electoral Tribunal, Chief of the Armed Forces ... and Subdirector of Administrative Probity.

They also altered Article 313, clause 2, as follows:

Original:  [The Supreme Court of Justice has the power] To begin initial proceedings against high state officials, when the National Congress has declared cause.

New:  [The Supreme Court of Justice has the power] To begin initial proceedings against high state officials and deputies.

The implication, I think, is that the Supreme Court has the power to remove officials from office when it determines that they have broken the law.  President Zelaya pretty clearly broke the law when he refused to obey an order from the Supreme Court to call off the referendum, and as I pointed out earlier, the Honduran constitution clearly (if stupidly) bans any consultatory referenda touching on presidential term limits. 

So my new version is:  Zelaya broke the law, the Supreme Court called him on it, and the military took the initiative in enforcing the Court's order.  (Maybe too much initiative.)  That interpretation will depend on how closely the armed forces and the Supreme Court cooperated in the ouster.  (The more it looks like the Court got the ball rolling, the more legal the coup will seem.)  Given the legal fog, the Obama Administration seems to be taking a pitch-perfect tone here.  Some other governments, like Brazil and Colombia, may have walked themselves into positions that they are going to regret. 

Be sure, though, to take my positions with a grain of salt.  I change them as the facts change, and as radically as necessary.  For a subtler discussion of the implications of the coup, go here.                            _{(Photo courtesy of Steven Taylor.)}

UPDATE:  The whole mess is filled with judgment calls.  Zelaya wanted to call a constitutional convention, which he publicly admitted would be intended to change the constitution to allow for re-election.  The referendum question that the Supremes kiboshed, however, only called for a convention, with no other stipulations.  So ... were the Supremes justified?

It all comes back to the problem that a constitution which declares procedural matters to be forever inalterable is a badly-written constitution.

Comments

[Bernard Guerrero]

"Subtler". You are a man of understatement, sir. Their appeal falls short immediately, however, given the the fog surrounding just how the rest of the Honduran government might go about getting rid of a President engaged in illegal acts. The comparison to the possibility of a U.S. impeachment seems inapt.

[Steven Taylor]

I think, as I continue to try and sort through the Honduran constitution, that while there were grounds for legal action against Zelaya, there was no basis for the actual actions taken (which is no small matter).

It is one thing to state that SCJ has the power to initiate proceedings against a state official, quite another to show up at the presidential residence before dawn, arrest the president, exile him before lunch and replace him by dinner.

Surely some sort of due process was warranted?

BTW, I now have the exact text of Zelaya's plebiscite and a photo of one of the ballots: click.

[Noel Maurer]

(Would you mind if I republished that photo of the ballot?)

As a general principle, I agree with you, but there is an issue that I need to sort out first. Zelaya had already disobeyed a Supreme Court order and called upon soldiers to disobey the Court and (implicitly) their commanders. There were a lot of reasons to believe that had he been confronted with an order to vacate the presidential palace, he would have simply refused. In that situation, the Court and Congress would run the risk that the President would stoke mob violence to keep himself in office, or (even worse) cause the military to split.

So while the Supreme Court (AFAIK) lacks the power to expel someone, even temporarily, one could make an argument that a surprise destutition in the middle of the night was the best way to avoid an even bigger crisis. I think that's what Bernard was getting at in his comment above.

I don't know if I accept that logic as a justification, but it is something that should be considered. No?

[Bernard Guerrero]

Basically, yes. I can see how the actions taken by both the Honduran SC and military are problematic, but I don't see how due process works when you have one party subverting the process.

[Richard Wang]

I don't understand how the congress could unanimously vote against him and yet there are thousands in the streets protesting for him in multiple cities. Why aren't the views of those in the streets represented in congress? It makes me think that the political system there is controlled by oligarchs and not the people. What is the solution when the elected government does not represent the majority of the people?

[Bernard Guerrero]

Richard, what makes you think "thousands" cuts the mustard as far as being able to move policy in a state with 8 million or so inhabitants? I bet you could get a thousand protestors in favor of making the Naked Cowboy the mayor of New York, if you tried.

[Mike D]

@Richard

There's also an institutional issue here that almost has an analogue to our separation of powers with respect to the rule Zelaya was trying to abrogate. If allowed to continue it would clearly give enormous additional power to the executive and that would likely come at the expense of both the legislature and supreme court. So even if one was in the same party or had the same ideological principles as Zelaya they could still have opposed such a power grab on principle. I think that is a reasonable explanation of why thousands (though mind you thousands isn't exactly an enormous number considering the population - though this may be a product of an increasing media blackout) of Zelaya supporters don't have counterparts in the gov't even if some members may agree w/them on substantive issues.

With respect to whether we think a constitution was poorly devised and as a result shouldn't receive as much respect, that's a pretty arrogant example of meddling in another countries affairs. Honduras' framers seemed to have been very wary of too much centralized power over an extended period of time and codified that in such a way that they would literally probably need another constitutional convention to overturn it. We might see that as being too cautious but that hardly makes its wrong.

The last thing I would also say is that I don't think the administration has done a good job on this issue. First, they issued multiple statements condemning the actions, asking for Zelayas return and claiming this was undemocratic almost immediately which suggests either that they were taken by surprise by an action they didn't favor or that those who are driving policy on Honduras are biased in favor of stability in the form of Zelaya. Additionally, the president and the secretary of state's intial statements were somewhat in conflict of each other. Frankly, I think the reaction has been pretty poor and confusing especially in contrast to Iran where it was handled very well.

These are great posts though Noel as they collect a lot of the information that I've seen on other legal blogs analyzing the constitutionality in a set of posts.