Here I will try to examine how the actions taken by Zelaya, the Military, the Congress and the Supreme Court function in the context of the Honduran constitution and what it means for the legality of their actions. I am by no means a legal scholar (and am definitely not a Honduran legal analyst), but this is an issue that warrants an examination beyond regional stereotypes and hyperbolic caricatures of the events of this constitutional crisis.
First, the issues surrounding the armed forces. Given the historical prevalence of military reign in Central/South American, the Honduran constitution, interestingly enough, has specific provisions to attempt to prevent the "legality" of military takeovers independent of civilian control. For example, Article 240 states in part:
No pueden ser elegidos Presidente ni Vicepresidente de la República
...
2. Los oficiales jefes y oficiales generales de las Fuerzas Armadas;
3. Los jefes superiores de las Fuerzas Armadas y Cuerpos de Policía o de Seguridad del Estado;
4. Los militares en servicio activo y los miembros de cualquier otro cuerpo armado que hayan ejercido sus funciones durante los últimos doce meses anteriores a la fecha de elección
Translated, this means that no Armed Forces/State Security commander can be elected president or vice president (regular active members of the Armed Forces must not be affiliated with them for 12 months prior to the election). This Article, combined with the explicit endorsement of presidential control of the military in Article 277, attempts to prevent military coups from legitimizing their rule. This is why the military's actions against Zelaya required the backing of civilian actors and why Micheletti, rather than a military general, is now the interim president, making this coup much different than a simple military claim to power a la Pinochet.
But is this military action, which was sanctioned by the Supreme Court, constitutional? Apart from the technicalities of the civilian-military relationship in Honduras, the “spirit” of the way in which the constitution depicts the military implies its non-use as a tool of law enforcement and in internal matters (weakening the temporary administration's case for the coup). References to the military are meant to separate it from the civilian domain (or keep it under civilian control), as in the prohibitions on generals and military officials running for the presidency or for Congress. Other examples include Article 37, which states:
Los ciudadanos de alta en las Fuerzas Armadas y Cuerpos de Seguridad del Estado no podrán ejercer el sufragio, pero si serán elegibles en los casos no prohibidos por la Ley.
Citizens of high rank in the Armed Forces and State Security bodies are not able to exercise the right to vote, but are eligible in cases not prohibited by the law (that last clause is difficult to interpret, I do not know if it is referencing voter eligibility or candidacy eligibility). This article suggests a drastic split between the military and political spheres (denying military officials the basic tool of decision (the vote) in domestic political disputes). In addition, Article 293 states:
La Policía Nacional es una institución profesional permanente del Estado, apolítica en el sentido partidista de naturaleza puramente civil, encargada de velar por la conservación del orden público, la prevención, control y combate al delito; proteger la seguridad de las personas y sus bienes; ejecutar las resoluciones, disposiciones, mandatos y decisiones legales de las autoridades y funcionbarios públicos, todo con estricto respeto a los derechos humanos.
This excerpt declares that the National Police is the body responsible for carrying out legal decisions by public authorities. According to Article 272, the military only cooperates with the police in maintaining public order (I would interpret this specifically as riot control and the like, not as a general, catch-all term). Nowhere in Section 10, the section on national defense and security, is there any justification for using the military to carry out legal decisions.
So the case that the Supreme Court is making for justifying the expulsion of Zelaya by military means as a legal, police action is undermined not only by the implied separation of military and state, but also by the explicit delegation of such responsibilities to the National Police.
The other military-constitutional issue relates to Zelaya's dismissal of general Romeo Velasquez for refusing to provide logistics for the vote. The military's rejection of Zelaya's referendum order has a constitutional defense. Article 323 states:
Ningún funcionario o empleado, civil o militar, está obligado a cumplir órdenes ilegales o que impliquen la comisión de delito.
No employee, civil or military, is obligated to obey illegal orders or those that would involve the commission of a crime. Because the Supreme Court ruled the referendum illegal, the head of the army was technically within his limits to reject Zelaya's demand to assist in carrying out the polling (the Supreme Court is the arbiter and interpreter of the law).
However, the issue of Velasquez's removal is much more vague. The constitution articulates the power of the President to select and remove the general of the Armed Forces in Article 280:
El Secretario(a) de Estado en el Despacho de Defensa Nacional, será nombrado o removido libremente por el presidente de la República; en igual forma lo será el Jefe del Estado Mayor Conjunto de las Fuerzas Armadas, quien será seleccionado por el Presidente de la República, entre los miembros que integran la Junta de Comandantes de las Fuerzas Armadas, de conformidad con lo que establece el Escalafón de Oficiales, prescrito en la Ley Constitutiva de las Fuerzas Armadas.
The first part of the Article states that “The Secretary of National Defense will be named or removed freely, by the President of the Republic, likewise, so will the General Commander of the Army.” The addition of the word “freely” implies that discretion lies solely within the presidency regardless of motive. While the Supreme Court has denounced the President's dismissal of Velasquez, there do potentially exist constitutional grounds for Zelaya's actions.
As a side note, the nature of the Supreme Court and how the Justices themselves are selected may also be relevant here, not in resolving the constitutional questions but in understanding what political pressures are involved. According to Article 311:
Los Magistrados de la Corte Suprema de Justicia, serán electos por el Congreso Nacional, con el voto favorable de las dos terceras partes de la totalidad de sus miembros,
Justices of the Supreme Court are elected by the National Congress with a 2/3 vote of the entirety of its members. Furthermore, according to Article 314:
El período de los Magistrados de la Corte Suprema de Justicia será de siete (7) años a partir de la fecha en que presten la promesa de Ley, pudiendo ser reelectos.
Supreme Court Justices serve 7 year terms and can be re-elected. In this way, because the Supreme Court is both elected by a parliamentary body and is subject to the pressures of re-election, it is in a position to be politicized and deferential to the Congress. There is this added dimension that makes the root of this crisis appear to be an executive/legislative power struggle with the Supreme Court choosing to side with its “political constituency.”
The controversy surrounding Zelaya's revolves primarily around his overtures to amend the constitution to remove the executive term limits, an amendment deemed unconstitutional by Article 374:
No podrán reformarse, en ningún caso, el artículo anterior, el presente artículo, los artículos constitucionales que se refieren a la forma de gobierno, al territorio nacional, al período presidencial, a la prohibición para ser nuevamente Presidente de la República, el ciudadano que lo haya desempeñado bajo cualquier título y el referente a quienes no pueden ser Presidentes de la República por el período subsiguiente.
It states that one cannot alter the following parts of the constitution:
Articles 373 and 374
The articles that refer to the form of government
The articles regarding national territory
The articles regarding presidential term
The prohibition on the President of the Republic twice
Who can serve under what title
Who cannot be the Presidents of the Republic
The actual Article 239 which covers this prohibition states quite clearly:
El que quebrante esta disposición o proponga su reforma, así como aquellos que lo apoyen directa o indirectamente, cesarán de inmediato en el desempeño de sus respectivos cargos y quedarán inhabilitados por diez (10) años para el ejercicio de toda función pública.
Anyone who violates this provision or proposes its reform, along with those who support them directly or indirectly, will immediately cease the the discharge of their respective duties and will be disqualified for 10 years from exercising any public function.
This is a notable strike against Zelaya. The constitution not only bans two-term executives or the amendment of that article, but it bans the very proposition of any reform of that rule. Thus, even if Zelaya did nothing legally, Zelaya's intentions could be unconstitutional, an odd proposition.
However, the phrase “propose its reform” is somewhat vague. Does it ban any speech or statement in that regard? Or does it ban simply legal propositions/amendments/decrees?
The word “proponga” (from the verb “proponer”) is key here. The best translation would be “propose” (rather than suggest which is more closely tied to the word “sugerir”). Because of the legal context, “propose” refers specifically to the introduction of legal acts such as decrees or bills in Congress rather than simply to “anything said by anyone.” That interpretation sets up a much clearer bright-line as to what is legal and illegal. Also, the first interpretation, at its broadest, would contradict Article 72, which codifies freedom of thought/freedom of the press (it would be an absurd exception – you can talk about anything except for this one constitutional provision).
On the contrary, Article 42 specifies that a citizen loses their citizenship if they incite, support or promote the re-election of a president. This would give some weight to the former interpretation (intent over legality), but the context implies the active promotion of a particular candidate rather than the more abstract suggestion of a constitutional modification.
On a tangential note, this stripping of citizenship requires a conviction, giving credence to the argument that Zelaya's opponents should have used the court system rather than seizing him militarily.
The “proposal” that sparked the controversy and became associated with the issue of term limits was this non-binding ballot question:
¿Está de acuerdo que en las elecciones generales de 2009 se instale una cuarta urna en la cual el pueblo decida la convocatoria a una asamblea nacional constituyente? = Sí…….ó………..No.
Translated: “Do you agree with the installation of a fourth ballot box during the 2009 general elections so that the people can decide on the calling of a national constituent assembly? Yes or no.”
There is nothing in this question that proposes a reform of Article 239 of the constitution. So from a purely textual interpretation (which tries to exclude the messy politics of the situation), Zelaya is clear. Because I cannot account for the vagueness and politicization of a broader interpretation of the Article that would seek to discern Zelaya's overall intent or mentality, I will leave that question for the end. I will comment that there is a crucial constitutional issue here and that Zelaya may not be 100% innocent and certainly should have to face legal challenges.
However, the poll itself (sans term limits) does introduce further legal conundrums.
First is the “binding” vs. “non-binding” question. Zelaya has asserted that the referendum is legally non-binding after having a “binding” proposal ruled unconstitutional by the Supreme Court. If the referendum were “binding,” then it would be a standard, legitimate plebiscite (which will have force of law) and thus would have to follow all of the rules set out in Article 5 of the constitution.
However, if it is non-binding, then there are no constitutional prescriptions for carrying out such a poll. Yet the poll does possess a legal basis within the Honduran “Ley de Participacion Ciudadana” or “Civil Participation Act”
The rough translation of the relevant parts of Article 5 of the Civil Participation Act is as follows:
Citizen initiatives are a mechanism for participation in which a citizen can present the following requests and initiatives:
1) Request that the heads of public organs and agencies of whatever power of the State (branch of government) convene the public in general, the neighbors of a municipality, a neighborhood or district, labor unions or organized social groups or sectors in order to submit opinions and formulate proposals to resolve collective problems. The results are not binding, but serve as guidelines for the functioning of the convening body.
…
These citizen initiatives can be started not only by individual citizens but also civil associations, businesses, unions or whatever other social group.
So Zelaya does have the authority to consult the public in that manner. Yet there is the issue of the legality of “Constitutional Convention.” The constitution immutably sets out the ways in which the constitution can be amended through legislative initiative in Article 373, by a legislative super-majority or a decree approved by a super-majority. There is nothing in the constitution regarding the formation of a Constitutional Convention (even though such a convention did originally write it).
However, even if the “content” of the question deals with unconstitutional elements, it is largely irrelevant due to the non-binding nature of the poll and the lack of restrictions on what the government is allowed to consult on in the Civil Participation Act. Even if the consultation is affirmative, it does not mean that a convention would be convened, it would simply be a way for Zelaya to put political pressure on Congress.
One interesting thing to note is that given his strategy, Zelaya would not be the beneficiary of any removal of term limits. An actual referendum on a constitutional convention, if approved, would be on the ballot in November, the same time as the Presidential election, meaning that Zelaya would still be unable to run for President. Given the amount of time needed to coordinate such an assembly, it would be unable to do anything before the end of Zelaya's term in January. The only way he would be able to “run again” is if the Constitutional Convention somehow retroactively allowed him to, a modification that would never pass given the level of political opposition Zelaya faces.
The final key issue is that of the constitutionality of how the conflict was resolved by the Supreme Court. The part of the Constitution that sets the framework for governance when the Constitution has lost its force, the “post-constitutional” situation, is Article 375:
Esta Constitución no pierde su vigencia ni deja de cumplirse por acto de fuerza o cuando fuere supuestamente derogada o modificada por cualquier otro medio y procedimiento distintos del que ella mismo dispone. En estos casos, todo ciudadano investido o no de autoridad, tiene el deber de colaborar en el mantenimiento o restablecimiento de su afectiva vigencia.
Serán juzgados, según esta misma constitución y las leyes expedidas en conformidad con ella, los responsables de los hechos señalados en la primera parte del párrafo anterior, lo mismo que los principales funcionarios de los gobiernos que se organicen subsecuentemente, si no han contribuido a restablecer inmediatamente el imperio de esta Constitución y a las autoridades constituidas conforme a ella. El Congreso puede decretar con el voto de la mayoría absoluta de sus miembros, la incautación de todo o parte de los bienes de esas mismas personas y de quienes se hayan enriquecido al amparo de la suplantación.
My translation:
This constitution does not lose its validity nor stops being enforced when it is supposedly derogated or modified by some other means or procedure distinct from those it allows. In these cases, all citizens, given government authority or not, have the duty to work to maintain and re-establish its legitimacy.
Those responsible for the acts designated in the previous paragraph, as well as those civil servants in the government organized thereafter if they have not contributed to the immediate re-establishment of the power and authority of the constitution, will be judged by the same constitution and laws set in compliance with it. The Congress can decree, with a majority vote of all of its members, the seizure of all of the property of these same individuals and of those who have become enriched under the suspension (of the Constitution).
While it does state that “all citizens” must “re-establish” the constitution's legitimacy, it provides no actual defined means of what is legal in this “temporary” government or what actions should be taken based on the extent of the violation of the constitution. So the interim government justifies the coup on the grounds that they were restoring constitutional rule after Zelaya “violated” it.
However, if the temporary government is shown to have also committed unconstitutional acts (the use of the military to depose the elected executive or the suspension of civil liberties), then they would be equally liable for prosecution for holding back the immediate re-establishment of constitutional authority.
The legality of the interim government thus comes into serious question both because of its dubious origins and its dubious actions. Since the coup, the Congress has suspended some of the articles of the Constitution pertaining to civil liberties, likely justifying it on the grounds established in Article 187:
El ejercicio de los derechos establecidos en los artículos 69, 71, 72, 78, 81, 84, 93, 99 y 103, podrán suspenderse en vaso de invasión del territorio nacional, perturbación grave de la paz, de epidemia o de cualquier otra calamidad general, por el Presidente de la República, de acuerdo con el Consejo de Ministros, por medio de un Decreto que contendrá:
The constitution specifies that these certain articles may only be suspended in times of a “grave disturbance of the peace” or a “general calamity” by “the President of the Republic with the agreement of his cabinet. The legislature's actions suspend Articles 69, 71, 78, 81, which pertain to freedoms of association, movement, and habeas corpus, during periods of curfew.
The irony of this situation is that the legislature is invoking its powers to suspend personal liberties on the grounds of a “grave disturbance of the peace” that it helped create by accepting the coup. In this regard, the classification of the protests against the unelected coup government as such a national calamity is a highly politicized decision.
Also Micheletti's strange position as unelected president puts into question the legitimacy of his use of decree to invoke Article 187. While technically, the president is imbued with these powers in times of emergency (the constitution is non-specific to the cause of this emergency), he may come to regret his decision to temporarily abrogate certain articles. To put it plainly, he is pushing the limits of his authority. Acting dramatically outside of the constitution right now may have drastic consequences for attempting to legitimize his rule.
In the end, weighing the constitutional damage wrought by both sides shows that while the two parties, Zelaya and his opponents, broke the law, the depths of the violations are drastically different. Mel Zelaya's constitutional problems revolve around the advocacy of his consultation referendum and potentially of changing the presidential term limits and the firing of his top military commander. On the other hand, the interim government is challenged by the seemingly blatantly unconstitutional (or at least extra-constitutional) military deposition of the executive and its suspension of liberties, acts not keeping with the speedy restoration of constitutional authority.
The most severe accusations against Zelaya are the implications within Article 239. The other issues are much smaller in comparison given valid competing interpretations of the constitution. Because of the illegality of any proposal to reform Article 239 along with the reform itself, the speculation surrounding Zelaya's intentions to repeal the term limit, Zelaya may be in breach of the constitution. However, even then, it is still a debatable issue given the non-existence of any “legal” proposition on Zelaya's part to amend Article 239. Even the controversial non-binding referendum made no mention of it. Thus, Zelaya's guilt or innocence depends on how the “propose a reform” clause of Article 239 is interpreted, a question that at the very least, requires further study. Had the Supreme Court brought legal proceedings against Zelaya or waited for him to indisputably violate Article 239 before taking action, this situation would be much more different.
Because while there is only a risk that Zelaya breached the constitution, the coup has already been committed and its legitimacy rests on the idea that Zelaya is 100% guilty of violating the constitution. Otherwise, there are no legal provisions within the constitution for the deposition of any government official by military means. It is entirely “extra-constitutional.” The sheer gravity of the forceful take- of a branch of government by another breaks the boundaries of what is legal and what is not. Considering that the Supreme Court did endorse the coup and gave orders to the military, it is very possible that the Court is acting unconstitutionally by usurping executive power over the armed forces. However, there is currently no way to correct that as long as the Congress, the body that appoints the justices, supports the coup. Thus, we have a paradox, where the body responsible for determining what is legal also can rule on the legality of its own actions without any challenges, breaking checks and balances.
So in the somewhat absurd calculus underpinning this situation (having to decide what is more unconstitutional), the severity of the coup and its dubious grounds outweigh the underdeveloped case against Zelaya. Furthermore, by choosing to unconstitutionally depose Zelaya, the Supreme Court has dramatically weakened its case against Zelaya (which sans-coup could have been viable).
The vagueness of the constitution, both in defining the illegality of Zelaya's propositions and in the response of Congress and the Courts limits the extent to which legal analysis can answer the “legitimacy” questions and turns this situation into more of a naked power struggle. The constitution says little about how to resolve inter-branch conflicts and even less about what to do when the constitution has been suspended. There is no definite legal way to resolve this crisis when all parties involved have to some degree lost their constitutional legitimacy.
The most ironic part of these events is that because of the failure of the constitution to resolve this crisis, it is very possible that a constitutional convention may in, in the end, have to be convened.
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