Library of Congress Report Determines Honduran Coup Was Constitutional Despite Having Unconstitutional Aspects

Golpistas Oppose Rewriting Honduran Constitution but Don’t Understand the Current One Either

By Belén Fernández
Special to The Narco News Bulletin

September 28, 2009

The most prevalent argument in favor of the June 28 coup that ousted Honduran President Mel Zelaya is that Zelaya intended to accumulate more than the single presidential term currently permitted him by the Honduran Constitution. This argument fails to take into account the question that was to be posed in the nonbinding public opinion survey slated to take place on the day Zelaya was removed to Costa Rica, which was not “Do you want the president to remain in power forever?” but rather “Are you in favor of installing a fourth ballot box at the general elections [in November] where the public can vote on whether or not a National Constituent Assembly should be convened to rewrite the Constitution?” The Honduran Constitution consists of 375 articles, most of which do not concern presidential reelection – suggesting that Hondurans wishing to rewrite the document might have complaints other than their inability to have the same leader for more than 4 years.

Article 374, which states that Constitutional articles concerning presidential limits cannot be amended, has been incessantly invoked to prove Zelaya’s culpability in the matter of the intended survey. Not invoked are articles seemingly more applicable to the situation, such as Article 45, which declares as punishable any act impeding or limiting civil participation in the political life of Honduras and which might thus prove useful in an analysis of the survey’s thwarting; additional analysis might be offered to Article 60, which claims there are no clases privilegiadas in Honduras. Article 63 stating that “the declarations, rights, and guarantees listed in this Constitution will not be understood as a denial of other declarations, rights, and guarantees that are not specified but arise from the ideals of independence, representative democracy, and the dignity of man” might meanwhile be applied to prospects for a National Constituent Assembly, as the rewriting of the Constitution is not addressed in any declarations, rights, or guarantees but appears to coincide with the required ideals. As for the ideals of coup president Roberto Micheletti, we are left with the question of why he sought to suspend Article 374 in 1985 in order to prolong the presidency of Roberto Suazo Córdoba.

Micheletti might currently benefit from the suspension of Article 68 prohibiting cruel and degrading punishment, as well, as even pro-coup Channel 10 TV has labeled as “torturous” the emissions from the sonic device being utilized by the Honduran military in the environs of the Brazilian embassy. Article 68 is not, however, included in the list contained in Article 187 of laws that can be suspended in the event of an invasion of national territory or other “general calamity,” which apparently now applies to invasions of national territory by the national president. Articles that can be suspended include 69, concerning the right to personal freedom; 72, concerning freedom of thought and freedom of expression; and 99, stressing the inviolability of residences.

Aside from the case of the Zelaya home, residence violation has been mainly focused on areas inhabited by the supposedly nonexistent less-privileged classes, who in addition to realizing their own existence have presumably realized that Zelaya raised the minimum wage in their favor. From the golpista point of view, the novel 290 USD per month income was part of the strategy designed to produce a popular fixation with eternal presidential terms, although I have yet to encounter an opponent of the coup in Honduras who has argued that the resistance is more concerned with Zelaya than with the necessity of a National Constituent Assembly. As for other instances of lack of concern for the president, his removal from the country was accompanied by a lack of concern for Article 102 of the Constitution, which is not authorized for suspension during times of general calamity and which states: “Ningún hondureño podrá ser expatriado ni entregado por las autoridades a un Estado extranjero” – No Honduran can be expatriated or delivered by authorities to a foreign nation.

The perception that Zelaya has been the victim of more constitutional violations than he himself has enacted might be rectified in the future by conferring Brazilian citizenship on him prior to his re-expatriation. Republican Congressman Aaron Schock of Illinois has devised a different – Honduran – destiny for Zelaya, which is outlined in a September 24 press release from his office announcing: “Schock Releases Report Contradicting State Department on Honduras.” The released report is courtesy of the Library of Congress; the press release describes its gist as follows:

“While the Library of Congress report found the removal from power of former President Zelaya legal and constitutional, they also found Zelaya’s removal from the country to be explicitly unconstitutional.”

Contrary to what the title of the press release implies, the Library of Congress’ constitutional coup with unconstitutional aspects appears to be quite compatible with the State Department’s non-military coup with military aspects. Schock attempts to compensate for the unconstitutional bit by advocating Zelaya’s release from the Brazilian embassy into a life as an ordinary citizen of Honduras, who will only face trial if he starts inciting violence or advocating the overthrow of the government. As for the legal and constitutional basis for Zelaya’s overthrow, we find in the August 2009 Library of Congress report – entitled “Honduras: Constitutional Law Issues,” by Senior Foreign Law Specialist Norma C. Gutiérrez – that it depends heavily on Article 205 of the Honduran Constitution.

Section 20 of Article 205 specifies that the National Congress of Honduras has the power to “approve or disapprove of the administrative conduct of the president” and other functionaries. According to Gutiérrez, additional Congressional possession of the power to interpret the Constitution “leads one to the conclusion that the National Congress… interpreted the word ‘disapprove’ to include also the removal from office.” Instead of explaining how one is led to this conclusion when Gutiérrez has just indicated that the section of Article 205 permitting the Congress to remove the president from office was repealed in 2003, she includes the following footnote:

“This line of analysis was confirmed in an August 3, 2009, telephone interview with Mr. Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations.”

This footnote is incidentally not the first contribution to the Library of Congress report by Pérez-Cadalso, whose credentials are reiterated in each of the footnotes in which he appears while his ties to the current coup government are not. Pérez-Cadalso’s debut occurs at footnote 25 of the report, which corresponds to the words “took Zelaya out of the country” in the following statement: “After his arrest, on June 28, the military, acting apparently beyond the terms of the arrest warrant, took Zelaya out of the country.” The rest of the words in the statement are covered by footnote 24, which reads: “Assessment by the author based on the facts and the law. The ruling of the Supreme Court consisted only of an arrest and raid warrant”; why “took Zelaya out of the country” requires a footnote is unclear, especially when the information is attributed to a speech made by Pérez-Cadalso before the U.S. House Committee on International Affairs, Subcommittee on the Western Hemisphere on July 10, 12 days after it was established that Zelaya had been taken out of the country.

As for Article 102 of the Honduran Constitution, Gutiérrez conveys the prohibition on the expatriation of Hondurans but fails to suggest that Congress was simply exercising its power of interpretation of the law. Other creative interpretations were presented to me last week by a pro-coup acquaintance who claimed that the military had only expatriated Zelaya in order to save his life, as Hugo Chávez was seeking a martyr. My acquaintance had not yet worked out the details of the operation, such as how the armed forces had had the presence of mind to save Zelaya from themselves; Pérez-Cadalso has indicated a similarly weak command of details, as indicated by his appearance in footnote 43, which corresponds to the statement:

“Although the National Congress unanimously approved an alleged letter of resignation by Zelaya, dated four days before his arrest, no mention of this letter was made in the Decree issued by Congress removing the President from office.”

The footnote, credited to a phone interview with the former Supreme Court justice and Foreign Minister, reads:

“It is believed by some in Honduras that Zelaya signed the letter on June 24, before his arrest, to make use of it after the referendum, when presumably the National Constituent Assembly was going to be initiated, on June 29 because Zelaya anticipated that he would be elected President of the Assembly.”

It is thus apparent that neither Pérez-Cadalso nor Gutiérrez made the effort to inform themselves of the very simple content of the proposed public opinion survey, concerning the installment of a fourth ballot box in the November 29 general elections to determine whether or not a National Constituent Assembly would be convened. The date of the general elections suggests that it would have been somewhat logistically difficult for the Assembly already to be in place on June 29 and for Zelaya to have already been elected its president; footnote 43 goes on to concede that “[i]t is also generally understood that that the letter [of resignation] was not included in the Congressional Decree because Zelaya denied writing the letter,” information that is of course only of secondary importance after Zelaya’s scheme to become president of everything he possibly can.

Pérez-Cadalso’s final donation to the report occurs in the last footnote, where he has evidently confirmed that Honduran authorities are currently investigating the military removal of Zelaya in violation of Article 102 of the Constitution. The investigation of illegal acts does not seem to preoccupy the ex-Supreme Court justice and Foreign Minister, who – in an article appearing on September 25 on hondudiario.com – rejoices at the abundance of possibilities for conflict resolution in Honduras “after finding out” that the Library of Congress has declared the destitution of Zelaya legal. The article attributes the revelation of the Library of Congress’ findings to US Congressman Aaron Schock and does not mention the role played in their formation by Pérez-Cadalso, who additionally praises the Library of Congress as “una institución muy seria, eminentemente apolítica, académica y de proyección científica, jurídica.” (“A very serious, eminently apolitical, academic instution of scientific and judicial projection.”)

As for the seriousness of other institutions within the juridical sphere, a September 25 analysis by Jennifer Moore refers to the current lack of an independent judiciary in Honduras and the “speed with which the Supreme Court processed legal measures to block [Zelaya’s public opinion] survey.” In addition to pinpointing the Citizens’ Participation Law of Honduras as legal validation for the survey, the article describes the concerns of an international group of lawyers that visited Honduras in August, such as “the contrast found between the ease with which Zelaya’s ouster was executed and the delays in addressing civil society requests for habeas corpus and constitutional protection as a result of police and military excesses over the last three months.” According to a report by the delegation, judicial negligence of the Constitution is reinforced by “powerful economic and political sectors including those who control the Honduran media”; media inattention to the Constitution is meanwhile underscored in the August 18 edition of La Prensa, featuring photographs of an exam allegedly administered to students by anti-coup teachers.

In one such photograph, a student has filled the blank in the sentence “Hondurans have the right to _____ in defense of the Constitution” with the word democracia, which has been marked wrong by the examiner and changed to insurrección. The correction is indignantly noted in the caption to the photograph, which fails to perceive that the fill-in-the-blank is directly drawn from Article 3 of the Honduran Constitution stating that “[e]l pueblo tiene derecho a recurrir a la insurrección en defensa del orden constitucional.” We might thus claim that La Prensa is encouraging violations of Article 168 of the Honduran Constitution establishing the obligatory teaching of said document; Article 274 meanwhile provides more thought-provoking material for use by Honduran teachers in future fill-in-the-blank endeavors, such as: “The Armed Forces will _________.” (cooperate with the President in literacy campaigns)

Other pro-coup enclaves ignorant of Constitutional trivia include an American expat community in La Ceiba, whose ringleader maintains a blog entitled “La Gringa’s Blogicito” in order to update the world on the trials of simultaneously living as an expat and engaging in tropical gardening in Honduras. New trials have arisen for La Gringa now that a reappeared president has been thrown into the mix, and she alternately encourages her flock to listen to Newt Gingrich and conducts tirades against Zelaya, who has pronounced that “the people have a right to disobey laws of ‘the usurpers,’” in addition to pronouncing “many other statements designed to incite violence and anarchy.”

One of the stipulations of Article 3 of the Honduran Constitution is that obedience to a usurper government that has assumed power by way of arms is not required. If the current Constitution is thus conducive to violence and anarchy, golpista resistance to rewriting it becomes all the more intriguing.

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