I think we know the answer to the question “what in the world are Constitutions for if not to be followed” as we address it to those named in the headline, but we now have the Congressional Research Service weighing in on Honduras and it isn’t good news for the US’s policy toward that country.
David Freddoso reports that the CRS’s Senior Foreign Law Specialist Norma Gutierrez has completed a study of the Honduran actions as they relate to former president Mel Zelaya and they don’t reflect well on the US. Freddoso has distilled them to the following:
* The Honduran Congress appears to have acted properly in deposing President Manuel Zelaya. Unlike in the United States, the Honduran Congress has the last word when it comes to interpreting the Constitution. Although there is no provision in Honduras’s Constitution for impeachment as such, the body does have powers to disapprove of the president’s official acts, and to replace him in the event that he is incapable of performing his duties. Most importantly, the Congress also has the authority to interpret exactly what that means.
* The Supreme Court was legally entitled to ask the military to arrest Zelaya. The high court, which is the constitutional venue for trials of the president and other high-ranking officials, also recognized the Congress’s ouster of Zelaya when it referred his case back down to a lower court afterward, on the grounds that he was “no longer a high-ranking government official.”
* The military did not act properly in forcibly expatriating Zelaya. According to the CRS report and other news stories, Honduran authorities are investigating their decision, which the military justified at the time as a means of preventing bloodshed. In fact, Zelaya should have been given a trial, and if convicted of seeking reelection, he would have lost his citizenship. But he is still a citizen now, and the Constitution forbids the expatriation of Honduran citizens by their government.
* The proper line of succession was followed after Zelaya’s ouster. Because there was no Vice President in office when Zelaya was removed (he had resigned to run for president), Micheletti was the proper successor, as he had been president of the Congress.
So the only unlawful or improper act, according the the CRS, was the forceful expatriation of Zelaya. Despite the desire to avoid bloodshed, the military should merely have removed and arrested him. Other than that, everything appears to go precisely as it should according to their constitution and their legal interpretation of it.
For a man who just stood up in the UN and claimed the right of people for self-determination (except in Iran, of course), he sure is working awful hard to ensure Honduras’s citizens don’t enjoy that right.
He’s wrong. Secretary of State Clinton is wrong. The State Department’s actions against Honduras are wrong. No equivocation here – the US is on the wrong side of this issue. This needs to be rethought and readdressed quickly and Mel Zelaya ought to be treated like he deserves – as someone who broke the law of the land.
Watching the events unfold in Central America over the past week has been an infuriating and dismaying exercise. Too many people, either sadly uninformed or maliciously misinforming, have referred to the ouster of Mel Zelaya by the unified government of Honduras as a “military coup” and an illegal transfer of power. Not only are such castigations dead wrong, they are made without any justification and completely against the actual Honduran Constitution.
To understand just how far off base these accusations of illegality are, ask yourself what law is alleged to have been broken. Has anyone cited an actual provision of the Constitution or a statute that’s been violated? Of course not, because there is none. In fact, if any of those who have been so quick to condemn the Honduran government had actually done just a smidgeon of research, they would have found the ouster of Zelaya to be self-perpetuated and entirely within the rule of law.
To wit, here is Title II, Chapter 4, Article 239 of the Honduran Constitution, first in Spanish:
ARTICULO 239.- El ciudadano que haya desempeñado la titularidad del Poder Ejecutivo no podrá ser Presidente o Vicepresidente de la República.
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.
And in English#:
Article 239 — No citizen that has already served as head of the Executive Branch can be President or Vice-President.
Whoever violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.
The plain text of Article 239 quite clearly states that Zelaya, through his own actions, ended his presidency. By seeking to hold a referendum on whether Hondurans should consider changing the term-limits portion of the Constitution, Zelaya’s official duties were ended “immediately” and he was further barred from participating in public office for a period of ten years. Period, the end.
Some may try to argue that Zelaya did not receive any due process in his ouster, but that argument must fail. Even under U.S. jurisprudence, due process is simply all the process that is due. In this case, once Zelaya was determined to have violated the term-limits provision of Article 239 by proposing its reform, which Zelaya has basically admitted and which the Honduran Supreme Court derivatively found, then he received his due process. Despite the decisions against him, Zelaya decided to go ahead with his illegal referendum, gathered a mob together, and invaded the military compound where the (Venezuelan-created) ballot boxes were being kept. He fully intended to hold the referendum on Sunday June 28th had he not been stopped.
These, among other actions, were what led the Congress to pursue impeachment, the Attorney General to issue an arrest warrant on Saturday June 25, 2009, and the Supreme Court to issue its own arrest warrant on Sunday resulting in Zelaya’s removal from the country:
Honduras’s military acted under judicial orders in deposing President Manuel Zelaya, Supreme Court Justice Rosalinda Cruz said, rejecting the view of President Barack Obama and other leaders that he was toppled in a coup.
“The only thing the armed forces did was carry out an arrest order,” Cruz, 55, said in a telephone interview from the capital, Tegucigalpa. “There’s no doubt he was preparing his own coup by conspiring to shut down the congress and courts.”
Cruz said the court issued a sealed arrest order for Zelaya on June 26, charging him with treason and abuse of power, among other offenses. Zelaya had repeatedly breached the constitution by pushing ahead with a vote about rewriting the nation’s charter that the court ruled illegal, and which opponents contend would have paved the way for a prohibited second term.
The arrest order she cited, approved unanimously by the court’s 15 justices, was released this afternoon along with documents pertaining to a secret investigation that went on for weeks under the high court’s supervision.
Cruz said the military decided to shuttle Zelaya out of the country for his safety and that of other Hondurans because riots would’ve erupted had he been held for trial.
“If he had been allowed to stay in the country, there would’ve been blood on the streets,” she said.
To recap, Zelaya violated Art. 239 by proposing and then attempting to hold a referendum to change his term limits, which referendum was declared illegal by the Supreme Court and the Congress, and then he tried to go ahead with it anyway. In the meantime, aside from the secret, court-approved investigation going on for some time behind the scenes, the Attorney General and the Congress sought Zelaya’s impeachment, and the Supreme Court and the Attorney General each issued arrest warrants when Zelaya pressed ahead with his illegal referendum. The military responded to the court-ordered arrest and took Zelaya into custody on June 28th.
But what about the deportation to Costa Rica? Surely that was an illegal action? Heck, even a top Honduran military official is saying so:
The military officers who rushed deposed Honduran President Manuel Zelaya out of the country Sunday committed a crime but will be exonerated for saving the country from mob violence, the army’s top lawyer said.
In an interview with The Miami Herald and El Salvador’s elfaro.net, army attorney Col. Herberth Bayardo Inestroza acknowledged that top military brass made the call to forcibly remove Zelaya — and they circumvented laws when they did it.
It was the first time any participant in Sunday’s overthrow admitted committing an offense and the first time a Honduran authority revealed who made the decision that has been denounced worldwide.
”We know there was a crime there,” said Inestroza, the top legal advisor for the Honduran armed forces. “In the moment that we took him out of the country, in the way that he was taken out, there is a crime. Because of the circumstances of the moment this crime occurred, there is going to be a justification and cause for acquittal that will protect us.”
Of course, it wasn’t the first time anyone took credit for the decision (the Supreme Court has been saying for days that it order Zelaya’s capture), and Inestroza also declares that whatever “crime” may have been committed against Zelaya would be absolved anyway:
“What was more beneficial, remove this gentleman from Honduras or present him to prosecutors and have a mob assault and burn and destroy and for us to have to shoot?” he said. “If we had left him here, right now we would be burying a pile of people.”
This week, Deputy Attorney General Roy David Urtecho told reporters that he launched an investigation into why Zelaya was removed by force instead of taken to court. Article 24 of Honduras’ penal code will exonerate the joint chiefs of staff who made the decision, because it allows for making tough decisions based on the good of the state, Inestroza said.
Another provision to keep in mind is Title II, Chapter 3, Article 42:
Article 42: The legal rights of any citizen is lost:
5) If the citizen incites, promotes, or supports the continuance or the re-election of the President of the Republic;
Accordingly, not only has Zelaya lost his ability to continue in office through his own actions, he has also lost his rights as a citizen, among those which would presumably be the right to remain in the country. In the end, that all spells a one-way ticket to anywhere but Honduras for the would-be Chavista dictator. Moreover, Zelaya should be very thankful that he wasn’t ousted in the old-fashioned way which was much more permanent and painful.
The only question remaining is, why would our President, as leader of a country founded on the rule of law over the rule of men, opt to side with flouter of constitutional democracy instead of the leaders who took great pains to ensure that the country’s constitution was adhered to? Unfortunately, I’m afraid that there are no good answers to that question, and that our President is helping to precipitate a major crisis in Central America. Was this the change we were hoping for?
[General HT to Fausta for many of the above links]
# I’ve checked the translation against some Spanish to English translators and it appears to be essentially correct to me. Any suggested changes are welcome.
He took off a few hours ago from the US in – wait for it – a Venezuelan plane. Naturally the UN has actually gotten off of its rear-end and taken what, for it, is “action”. The UN General Assembly President Miguel D’Escoto Brockmann and a number of journalists are accompanying former Honduran president Mel Zelaya.
Honduras, naturally, has said Zelaya isn’t welcome and has stated they will arrest him should he try to reenter the country. The OAS, in the meantime, has suspended Honduras from the organization.
The interim government (which some news organizations are characterizing as a “military government”) pleads for the rest of the world to back off and let Honduras work this out.
But, with apparently everything under control and in tip top shape in their respective countries, the presidents of Argentina, Ecuador and Paraguay, along with the head of the OAS have time to fly to El Salvador to “monitor events.”
Meanwhile it is reported that Nicaragua is moving troops toward the Honduran border. All of this tacitly green-lighted by the Obama administration’s stance.
The Venezuelan plane carrying deposed president Mel Zelaya landed in El Salvador, according to Honduran daily El Heraldo. Venezuelan chancellor Nicolás Maduro verified that the airplane was Venezuelan and identified it as YV-1496.
But that’s not meddling – no siree.
Honduras has reported it will not allow the landing of the Venezuelan aircraft carrying Zelaya in Honduras. My guess is they’ll now try to drive into Honduras from El Salvador.