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Wednesday, July 07, 2010

The Honduran Constitution and the Coup

From my dissertation:

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Our final example concerns the recent ‘coup’ (I put the term in quotes because one of the chief bones of contention here is whether or not what transpired actually was a coup) that took place in Honduras in 2009. President Zelaya was proposing a referendum on reforming the constitution, a maneuver objected to be most of the National Congress and Supreme Court. The Court wound up ordering the military to remove Zelaya from office and the country. Immediately, some voices called the act an illegal military coup, while others praised it as a defense of the Honduran Constitution. It is no easy matter to abjudicate this dispute; the difficulty arises from the combination of articles 239 and 374 of the Honduran Constitution:

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.

ARTICULO 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.
(Source: Georgetown University Political Database of the Americas, 2005.)

Article 374 declares certain constitutional clauses to be immune from amendment. (They can be amended ‘en ningún caso’, ‘in no case’.) These specifically include the subject of Article 239, which itself forbids even proposing changes in itself, and which also declares violators will be removed from office ‘immediately’ (‘inmediato’) and will be banned from politics for ten years thereafter.

While the above seems clear enough, the difficulty in sorting out whether the events took place were a constitutional blockage of an executive power grab or a military coup arises from the fact the Honduran constitution utterly fails to set out any procedure for who should determine or how it should be determined that the president has violated Article 239, or what the procedure for ‘immediately’ removing a convicted (or is the mere accusation sufficient for removal?) offender should be. In other words, we have a rationalist declaration of certain constitutional principles held to be inviolable, but no practical solution to resolving disputes about such a purported violation. And the articles cited above simply beg the question of why the constitutional generation ought to be able to bind irrevocably all future generations to any of its decisions. And thus we have our current mess, where both sides in the dispute can claim, with some plausibility, that the other is acting unconstitutionally.

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So here's the deal: Zelaya says he wasn't trying to change any forbidden clause -- he was suggesting a a referendum on drawing up a new constitution. Now, the existing constitution never forbids scrapping it whole and adopting a new one -- how could it, without being absurd? And even if this was a smokescreen simply for shedding presidential term limits, the existing constitution gives absolutely no guidance for how to resolve the situation, and determine whether Zelaya or his opponents are right.

In short, it's a mess due to bad constitutional design. What Zelaya's opponents perhaps should have done (I don't want to pose as an expert on Honduran politics!) is hold some sort of trial or trial-like hearings where Zelaya and his opponents could present their cases in public. (I.e., say "Our constitution is inadequate to the situation, so let's adopt precedent from. e.g., the US, and do something like their impeachment.")

That they failed to do anything like this and simply yanked the guy out of office by military force is the reason so many nations condemned their action, and not some perverse desire to "coddle dictators."

3 comments:

  1. The referendum had already been ruled illegal multiple times by the Honduran courts. If they had waited to hold a trial then the polling would have gone ahead and Zelaya could have claimed that the old rules were no longer legitimate.

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  2. Yes, it may have been the best option to hold a coup. I have not tried to enter into that issue.

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  3. "Zelaya could have claimed that the old rules were no longer legitimate."

    And, rather than being 'anti-democratic', wouldn't Zelaya's claim have been quite democratic -- the people voted, after all!

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