http://quotha.net/node/433
Juridical Analysis of the Coup by Edmundo Orellana, Part I
[Original in Spanish is available
here. Thanks to Charles for his tireless and excellent translation work. We are working on translating the rest, and will have it up here as soon as it's done.]
Coup D’état in Honduras. A Juridical Analysis
Sunday, September 27, 2009 04:41
By: Edmundo Orellana
Professor, Faculty of Law
National University of Honduras
Translation by Charles Utwater II
I. EVENTS LEADING UP TO THE COUP
1. The Fourth Ballot Box
The need to review the Constitution in its entirety was put forward during the electoral campaign, because the present Constitution is a poor copy of the Constitutions of 1957 and 1965. Contradictions within it are abundant, many of its articles are written in stone, it does not allow the effective participation of citizens in the processes of deciding and solving local and national problems and, most importantly, it is not responsive to the national reality of the Twenty First Century.
President Zelaya decided to propose the revision of the Constitution and, for this effort, met with different social sectors, including the political parties. From these explorations of opinion arose the idea of a National Constitutional Convention and the inclusion of a fourth ballot box [along with the normal three ballot boxes for presidential, congressional, and mayoral candidates] in the elections of the 29th of November. The object was to ask the Honduran people if they desired to convene a Constitutional Convention to issue a new Constitution.
The Constitution requires that certain aspects of the Constitution may not be revised under any circumstances, so the idea [of a Constitutional Convention] is at the Constitution’s outer limits. These [non-revisable] aspects are the following: the form of government, the national territory, the presidential period, and the prohibition on re-occupying the Presidency of the Republic by any person who had carried out presidential duties under any title and who could not be candidates for the president in the next term. The Articles which dealt with these topics may not be reformed, i.e. are written in stone.
Those sectors which were consulted were in agreement that that the idea of a new Constitution would remain legitimate if the people voted in favor of it. But the electoral legal system only recognizes three ballot boxes in the general election: that of the President, that of Congressmen, and that of Mayors. That which was essential to approve the legal standards to regulate in future would become known as THE FOURTH BALLOT BOX.
The next step was to seek the road to achieve approval of the legal standards which would permit the placement of this ballot box in the general election. The National Party, whose candidate publicly expressed his support for the idea and the Democratic Unification [Party], which was enthusiastic about the idea, each decided to propose through their Congressmen separate legislative initiatives with the goal of regulating a ballot box with this aim. The process of approval began immediately.
2. The Ballot Question
President Zelaya chose a different approach. In place of submitting the legal project to the National Congress that it might approve or not (a question which he constitutionally could pose, just as the National Party and the National Unification Party had done) he preferred to ask the People if it wanted this FOURTH BALLOT BOX, so that, if the response were in the affirmative, he would have sufficient justification to submit the legal project to the National Congress.
President José Manuel Zelaya Rosales, in the Cabinet Meeting, decided to carry out the People’s Ballot Question. Presidential Decree PCM-005-2009 as approved had the following characteristics: to ask the Honduran people if it agreed to inclusion of one more ballot box in the November elections in addition to the three which corresponded to the President, the Congressmen, and the Mayors with the asking them if they wished in the following presidential period to convene a Constitutional Convention.
3. Intervention of the Court of Administrative Disputes
This Decree from the Cabinet Meeting was challenged by the Public Minister before the Administrative Disputes Authority, alleging that it was illegal because it said that it would perform a “consulta” (ballot question) of the people; the Constitution only recognizes plebiscites and referenda, whose conduct is solely within the competency of the Supreme Electoral Tribunal (Art. 5, paragraph 5) as the only permitted ballot questions
The Court of Administrative Disputes decided, in an incidental ruling, to stay the effectuation of this Decree of the Cabinet, while it decided for a final ruling on whether the Decree was legal or illegal. That is, the Court did not qualify the Act as illegal. It simply suspended its effectuation to avoid [the possibility that] the achievement [of the Decree] would nullify the final judgment.
The Council of Ministers, in acceptance of the plaintiff’s aim, revoked Decree PCM-005-2009, whose effectuation had been suspended by the Court, despite the fact that it had never become effective because it was not published in the Official Journal, La Gaceta, a requirement demanded by the Constitution so that ordinary Acts may have juridical consequences.
Honduran legislation recognizes two kinds of rulings: the final and the incidental. The first are delivered in ordinary opinions and, given no further challenge during the passage of the appeal period, are converted into final judgments or matters beyond the statute of limitations. The incidental [ruling] is issued for incidences, which are questions posed within the larger proceeding and which, when they are of prior and special ruling, should be resolved before this [the proceeding] is settled by a final verdict. Among such incidences is that of the suspension of the Act challenged in an ordinary trial of the administrative dispute. The objective of the suspension is to avoid [the situation in which], with the execution of the Act under challenge, may be produced irreparable damages which cannot be undone even with the verdict that the principal ruling may pronounce.
4. The Poll
“ARTICLE 5. – The citizen initiative is a mechanism of participation through which the citizen shall present the following requests and initiatives: 1) to request that the tenured heads of public organs or sections of any of the Powers of the State [Executive, Judicial, and Legislative] convene the general citizenry; the residents of a Municipality, a neighborhood or district; or trade unions, sectors, or organized social group so that they may issue opinions or formulate proposals for the solution to collective problems which affect them. The results will not be binding but will be the set of facts for the exercise of the functions of the convener.
The aforementioned Decree having been revoked, it was decided to invoke the Law of Citizen Participation, approved in the first session of the National Congress of the government of President Zelaya. This law recognizes, in Article 5, the legal mechanism of participation called “citizen initiative,” conceived as a right of the citizen to request that the tenured heads of organs of the State might ask of the general citizenry or the residents of a Municipality to issue opinions or formulate proposals for the solution to collective problems which affect them. The results are not binding but shall serve as the set of facts for the exercise of the functions of the convener.
This formulation was the legal basis that the Executive required to have the Honduran people make a pronouncement regarding the relevance of a law that had as its object the regulation of The Fourth Ballot Box.
With this legal foundation, a new Decree of the Cabinet (Number PCM-019-2009, dated 26 May 2009) was approved. Through this would be provided the conduct of a poll (now not a ballot question) to obtain the opinion of the citizens around the advisability of the FOURTH BALLOT BOX in the elections of November, as a justification to send the legal project to the National Congress was approved.
The question which would be done in the poll is the following: Do you agree that in the general elections a fourth ballot box should be installed by which the people may decide on the convening of a Constitutional Convention.
5. Clarification of the Ruling
What the Court had to resolve, always at the request of the plaintiff, was the adoption of precautionary measures to ensure the result of the verdict, a question permitted by our legislation. Among these measures is the prohibition against the passage of new Acts.
On the 29th of May, 2009, the Court of First Instance of Administrative Disputes, faced with a petition of clarification of the incidental verdict, resolved that in the matter [of the incidental verdict] were implicitly included not only the Act challenged in the request petition, but all Acts which the Executive might order with the aim [of posing a Ballot Question].
The court made an inexcusable error, to wit: to attempt that in the verdict would be included not only the Act that had been challenged, but also all future Acts of the defendant. With that, in practice, the clarification became a new verdict, which would rule on Acts which were not the object of the verdict and, additionally, which lacked physical reality, since it attempted to command regarding Acts which the judge imagined the Executive might order in the future.
Appropriate appeals were lodged against the verdict, but the judicial system reacted as might be expected, confirming the absurd legal reasoning which the verdict in question contained. The challenges rejected, the verdict, despite being nonsense, had to be obeyed.
Exceptionally, judicial communications were sent to all the institutions to ensure that they would not participate in the ballot question, advising them that if they did so, they would be punished with the full force of the law. Among them [the institutions] was the Armed Forces.
The final Decree (Number PCM-019-2009), dated the 26th of May 2009, was published on the 25th of June.
One day prior, the 24th, the President dismissed the Chief of Staff because this person told him that while a judicial order existed suspending the ballot question, they couldn’t participate in the carrying out of the same because it was against the law to avoid complying with a judicial order. Thereupon, the resignation of the Minister of National Defense was accepted and the resignations of the Commanders of the Air Force, Naval Force, and Army were proposed.
II. THE PRESIDENTIAL IMPEACHMENT DECREE
1. The Decree
The President of the Republic was replaced on the 28th of June by the President of the National Congress in a session of this State Power and by the decision of an as-yet undetermined number of Congressmen.
The decision of the National Congress is contained in Legislative Decree No. 141-2009, which in its conclusions says:
ARTICLE 1. The National Congress in applying Articles 1, 2, 3, 4, 5, 40 number 4, 205 number 20, and 218 number 3, 242, 321, 322, and 323 of the Constitution of the Republic agrees:
1) To censure the conduct of the President of the Republic, citizen JOSE MANUEL ZELAYA ROSALES, for repeated violations of the Constitution of the Republic and the laws and failure to observe the resolutions and verdicts of the organs of legal authority, and
2) to separate citizen JOSE MANUEL ZELAYA ROSALES from the post of Constitutional President of the Republic of Honduras.
ARTICLE 2. To promote citizen ROBERTO MICHELETI BAIN, currently President of the National Congress, to the post of Constitutional President of the Republic, for the time which remains to complete the term of office and which expires on the 27th of January 2010.
ARTICLE 3. The present decree becomes effective at the end of the approval of two-thirds of the vote of members who belong to the National Congress and thereupon the execution is immediate.
This Legislative Decree does not withstand the slightest legal analysis. It contains as many violations of the Constitution as comprise the formulation. In the numbers which follow this section are identified the constitutional violations which the National Congress incurred with the issuing of this Decree.
2. Censure of the Conduct of the President
Article 205, Number 20: “To approve or censure the administrative conduct of the Executive Power, Judicial Power, Supreme Electoral Tribunal, Superior Tribunal of Auditors, Attorney General of the Republic, Attorney of the Environment, Public Minister, National Commissioner of Human Rights, National Registry of Persons, Decentralized Institutions, and the other auxiliary organs and special [branches] of the State.”
The Constitution of the Republic confers on the National Congress the ability to censure the conduct of the Executive Power, Judicial Power, Supreme Electoral Tribunal, Superior Tribunal of Auditors, Attorney General of the Republic, National Commission of Human Rights, Public Minister, and other institutions.
Censure refers to the conduct of the organ, not to the conduct of the tenured head of the organ. The Congress neither may nor should censure the conduct of a particular public official.
Censure of the conduct of the President of the Republic, of a Secretary of State, of a Magistrate, of the Supreme Court of Justice, of the Electoral Tribunal or of the Court of Assessors, or the manager of a decentralized entity is not envisioned.
3. Censure of Administrative Conduct
The capacity which the Constitution does recognize is possessed by the National Congress is to approve or censure administrative behaviors, not to assess violations to the legal order.
Legislative Decree 141-2009 clearly asserts a determination that the President of the Republic committed repeated violations of the Constitution and of the laws and failure to observe the resolutions and verdicts of the organs of the legal authority. It does not deal, therefore, with simple questions of administrative conduct involving political responsibility, but rather with illicit acts, which is to say, crimes.
For the Congress there was not a shred of doubt that the President was guilty of violations of legislation and of disobedience, although no deeds or acts had been identified. The violations of the President indicated in the abstract might be characterized as crimes on the assumption that they could be individualized. The accusation in the abstract was sufficient that the National Congress might decide to declare the guilt of the President of the Republic for the commission of unspecified crimes.
Under our Constitution, only the Judicial Power holds jurisdiction to administer justice (Art. 303, first para.) and to apply the laws in specific cases, to judge, and to carry out the law (Art. 304). If the President had violated legislation and had disobeyed judicial resolutions, it would be up to the Judicial Power, and specifically to the penal authority, which is responsible to judge his behavior and to determine if he actually was involved in an illicit act. It would not be up to the National Congress.
In characterizing as illicit the supposed acts of the President, and by declaring him guilty of having committed them, the National Congress therefore arrogated unto itself authority exclusive to the Judicial Power. That is to say, it usurped functions which the Constitution attributes to another Power of the State.
4. The National Congress does not have the Authority to Impeach the President of the Republic
A) The organs of the Powers of the State
Article 4. The form of the government is republican, democratic, and representative. It is practiced by the three Powers: Legislative, Executive, and Judicial, [which are] complementary and independent, and without hierarchical relations.
Art. 189. The Legislative Power is exercised by a Congress of Deputies, which shall be elected by direct suffrage.
Art. 235 The tenured head of the Presidency shall exercise the Office of Executive Power on behalf of and for the benefit of the People…
Art. 303. The Judicial Power is composed of a Supreme Court of Justice….
According to our Constitution, the Honduran State is comprised of three Powers which, according to Article 4 of the Constitution “are complementary and independent, and without hierarchical relations.” Everything related to these three Powers is regulated, fundamentally, in the Constitution of the Republic. The three Powers are interrelated and exercise functions which allow a balance between the three.
The Legislative Power administers the oath of office of the President of the Republic, elect the Magistrates of the Supreme Court of Justice and they administer the constitutional oath to them. The Executive Power presents the General Budget of the Republic, in which are contained the budgets of the other Powers of the State and, additionally, exercises veto power regarding the laws issued by the National Congress. The Judicial Power can, exercising its judicial discretion, deliver rulings which the functionaries of the other Powers of the State are obliged to obey; for example, to annul the administrative Acts of the Executive and some of the Legislative branch, as well as to declare unconstitutional Acts of both Powers and laws issued by the National Congress.
Each Power of the State is composed of and is exercised by the following organs: the Legislative Power by the National Congress comprised of Congressmen elected by direct suffrage; the Judicial Power, by the Supreme Court of Justice comprised of Magistrates elected by the National Congress; the Executive Power, by the President of the Republic on behalf of and for the benefit of the People who elect him for a period of four years by a simple majority of votes.
The only Power of the State which is composed of and exercised by one person is the Executive Power (Art. 235). All the remaining [Powers] are composed of and exercised by corporate organs.
B) Can the tenured heads of the Powers of the State be removed?
All the tenured heads of the Powers of the State are elected for defined periods. The congressmen and the President [are elected] for a period of four years and the Magistrates of the Supreme Court of Justice for a period of seven.
By resignation, death, or judicial disqualification (Constitutional Art. 205, Number 12) the tenured heads of these Powers may vacate their posts before the completion of their respective term.
The Constitution contains no standard by which the removal or impeachment of a President, Congressman, or Judge may be authorized. Therefore, no tenured head of a Power of the state may be removed from his post before he completes the period for which he was elected.
C) The removal of the President
Art. 238. Those who execute Acts directly proceeding to obtain by force or by extralegal means any of the following ends commit a crime against the form of government:
1)…
2) Altering the composition of any of the Powers of the State
Art. 2
...the supplanting of the sovereignty of the People and the usurpation of the constituent Powers are designated to be crimes of treason against the nation. The responsibility in these cases is inalienable and may be alleged officially or at the request of any citizen.
The removal of any of the tenured heads of a Power of the State would be contrary to the Constitution and would constitute a Crime against the Form of Government, in the sense of Article 238 of the Penal Code. If the removal were to be of all the members of one of the corporate organs which exercise Powers of the State, as is the case of the Legislative or Judicial (impeachment of all the congressmen or of all the judges) one can assert without hesitation that this is a Coup D’état, because the deed eliminates one Power of the State, i.e., it usurps a component Power.
In conclusion, the National Congress lacks the constitutional capability to impeach the President of the Republic.
The arbitrary removal of the President translates into an attempt against the Constitutional State inasmuch as it, without authority, disavows the Executive Power, whose exercise by constitutional mandate belongs to the President whose investiture emanates from the People who elect him for a period of four years.
It definitely amounts to the supplanting of popular sovereignty and the usurpation of a constituent Power, characterized in the Constitution as the crime of treason against the nation under Article 2 of our Constitution.
5. Application of Sanctions
Article 89: All people are innocent, as long a competent authority has not declared him/her guilty.
Art. 82: The right to protection [before the law] may not be abridged.
The application of sanctions in our legislation is based on the completion of requirements which may not be avoided. The most important are those recognized [explicitly] in the Constitution, i.e., respect for the presumption of innocence, the right to protection [before the law], and the right to due process.
All people have the right to be treated as innocent by the authorities, until a competent authority has declared his/her guilt.
No one may be sanctioned without being permitted to defend himself in a proceeding prescribed by the law for that purpose.
The cited Decree, in short, is infested with violations to the Constitution as follows:
a) It declares that the President committed violations and acts of disobedience without identifying them;
b) The infractions imputed to the President are constitutive of [specific] crimes (abuse of authority, disobedience, and others), but they aren’t individualized;
c) It declares his guilt without having completed previously the respective trial, in which he might make use of the mechanisms which the law recognizes by which the accused may defend himself against the illicit acts which his accusers impute to him; and
d) It denies the opportunity that these [illicit acts] might be previously characterized and judged before the appropriate Judge.
III THE DESIGNATED PRESIDENTIAL SUCCESSION
ARTICLE 242.- If the absence of the President should be unconditionally permanent, the Designated Person who the National Congress elects as a consequence shall exercise the Executive Power for the time remaining to complete the constitutional term. Should there also be a permanent lack of the three designees, however, the Executive Power shall be exercised by the President of the National Congress, and failing the latter, by the President of the Supreme Court of Justice for the period remaining to complete the constitutional term. In his temporary absences, the President shall be entitled to name one of the designees so that he may serve as a substitute.
If the election of the President and Designees were to remain undeclared one day before the 27th of January, the Executive Power will be exercised as a special exception by the Cabinet, which must convene elections of the senior leadership within fifteen days subsequent to that date. These elections shall be accomplished within a period not less than four nor greater than six months, counted from the date of the announcement. Once the elections are complete, the National Elections Council or, failing that, the National Congress or the Supreme Court of Justice, if applicable, shall make the suitable declaration of election, within twenty days following the date of the election, and the elected officials shall immediately assume their duties until completion of the appropriate constitutional period. While the newly elected senior leadership is assuming its duties, the Congressmen of the National Congress and the Magistrates of the Supreme Court of Justice shall continue in the interim the performance of their functions.
1. Occasion for the replacement of the President
The Constitution establishes two hypotheses (Art. 242) in which the President may legally be replaced, to wit: in temporary absences and in permanent absences.
Temporary absences should be understood as trips by the President outside the country, going on leave for a determined period of time, and the suspension of the duties consequent to a judicial decision. Should the voyage abroad be for more than fifteen days, it is up to the National Congress to grant permission (Art. 205, number 13).
Going on leave is envisaged for any circumstance in the President finds himself which he may be able to justify (Art. 205, number 12).
The [case of] suspension is created when a competent judge decrees a prison sentence for any crime which may deserve a greater penalty, because in this case it is envisaged in the Constitution that citizenship would be suspended (Art. 41), a status that carries with it the recognition of political rights, among which are those of electing and being electing, and conducting public duties (Art. 37). The suspension is provisional, because the definition of his/her situation shall only obtain until the respective sentence is pronounced, for which he/she might declare his/her innocence. What matters is the return to exercise of the post.
Among permanent absences are included all those cases in which in which the President ceases definitively the exercise of his post. Death, resignation, and judicial incapacitation are circumstances which definitively separate the President from the exercise of his/her post.
The acceptance of resignation is discretionary and [the authority] to grant it belongs to the National Congress (Art. 205, number 12).
Incapacitation, which is a penalty incidental to the penalty of imprisonment, may be special or definitive: the former is carried out in the event that the crimes are those of penalties less than five (5) years, and is applied for a particular post or political right (Art. 49, Penal Code). The latter is carried out when the crime deserves a penalty greater than five years and applies to all public posts (Art. 48, Penal Code)
2. Functionaries which may substitute for the President
The President may be substituted by a Designee to the Presidency, the President of the National Congress, or the President of the Supreme Court of Justice. In temporary absences, only Designees may substitute for him. The Designee shall be whomever the President shall decide, including for trips abroad, shorter or longer than fifteen days.
Should the President not appear at the start of the constitutional period for which he has been elected, the Designee to the Presidency elected by the National Congress shall exercise Executive Power.
In permanent absences, the Designee which the National Congress may select can substitute for him [the President]. It may happen that the Designees may be permanently absent (as in the case of death, for example). In this case, the President of the Congress might substitute for him [footnote: previously it was the Vice President. But the Constitutional Chamber of the Supreme Court overturned the constitutional reform by which Vice-presidential Designees would be substituted]; and if there were also a permanent absence of him [the President of the Congress], the substitution would fall on the President of the Supreme Court of Justice.
The Constitution recognizes that the Cabinet can assume the exercise of Executive Power in one case: when one day prior to the 27th of January, the President of the Republic and Designees have not been declared [the winners of] the election (Art. 243).
3. Replacement of the President
The replacement is arranged by the National Congress if the conditions anticipated in constitutional norms are not met.
It was not possible to allege a temporary absence because none of the constitutional hypotheses came to arose. That included the case originating in a prison sentence, because the President was not even haled before a judge. Neither could a permanent absence be alleged, because the President had not resigned, was not dead, nor had he been removed from his capacity by judicial order.
Despite this, the National Congress designated a substitute for the President for the entire remainder of Zelaya’s presidential period.
Following this reasoning, the man who poses as President of the Republic was not legally invested, because his designation was contrary to the Constitution. That is, everything was accomplished contrary to the Constitution of the Republic.
