September 2009
SERIOUS ERRORS ON:

REPORT FOR CONGRESS
August 2009
(The Law library of Congress
Directorate of Legal Research for
Foreign, Comparative,
and International Law
LL File No. 2009-002965)

HONDURAS: CONSTITUTIONAL LAW ISSUES

Events

The National Congress, directed by Mr. Roberto Micheletti Bain, elected the 15 members of the current Supreme Court in January of this year, 2009, from a list of attorneys presented by Mr. Micheletti to the Congress.
On June 29th, 2009, the National Congress of Honduras interpreted president Zelaya’s disapproval, as removal of president Zelaya. The Congress then elected Mr. Micheletti, its president, as the president of Honduras based on a subjective absolute absence of President Zelaya, while President Zelaya’s absence was not absolute. It was, instead, forced and temporary, as he was violently taken out of his office and expatriated by the Army, a day before.

The National Congress also had a letter of resignation by President Zelaya under consideration. The letter was signed three days before the coup. This resignation consequently would drop charges and close President Zelaya’s case.

These National Congress actions were taken after a Congressional Decree dated Monday 29, 2009, at 12:45 AM – a day after President Zelaya was removed violently from his office and expatriated by the Army on Sunday June 28th at 5:30 AM.

The Supreme Court failed to address the original Executive Orders of President José Manuel Zelaya Rosales and allowed the Honduran lower Court of Letters and the Contentious Administrative to deal with the constitutional matter beyond the competence of this Court. The Supreme Court of Honduras played a passive and facilitative roll in such a high priority and serious case.

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I.What are the provisions, if any, in the Honduran Constitution for their Judicial Branch and the Legislative Branch (National Congress) to remove an elected President?

If the case against President Zelaya’s was built in the lower Court of Letters of the Contentious Administrative it is an unequivocally fact that this court has no jurisdiction over constitutional matters, unconstitutionality or any violation of the Constitution. Constitutional matters are exclusively handled by the Supreme Court of Honduras. (Honduras Constitution Art. 1841, also here below)

Art. 323, section 2 stays that the Supreme Court has the power to “hear cases against the highest officers of the State and the Deputies.” This is the exclusive duty of the Supreme Court, never a function of a lower court. This provision in the Constitution is ignored by the Honduran Supreme Court.

In addition to the Supreme Court overlooking its duties, the decrees focus of the ousting of President Zelaya – Executive Orders2 # PCM-005-2009, PCM-019-2009, PCM-020-2009 and PCM-027-2009, would be a matter of unconstitutionality revision due to the fact that these decrees represent a challenge to Art. 51 of the Constitution, which states “Regarding elections acts and procedures will be a Supreme Electoral Tribunal, autonomous and independent, with jurisdictional entity, with jurisdiction and competence in all the Republic, whose organization and function will be established by this Constitution and the law, which will stay equally related matters of other electoral organisms.”

Art. 184 stays “Laws can be declared unconstitutional by reason of form or content. It competes original and exclusively to the Supreme Court of Justice the knowledge and resolution of the matter, and must pronounce it with the requisites of definite sentences.”

To determine if President Zelaya’s decrees are unconstitutional is the sole province of the Honduran Supreme Court of Justice and not any other Court and definite not a lower Court, given the President’s highest authority and the high legal level of his decrees.

1 All references to Honduras Constitution are taken from the updated or amended CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS. Available online, at: http://www.gobernacion.gob.hn/descargas/leyes/CONSTITUCION%20DE%20LA%20REPUBLICA.pdf
The Constitution was originally published officially in LA GACETA, Jan. 20, 1982.

2 Called Executive Decrees in Honduras: PCM-005-2009 never was published in LA GACETA, as required. PCM-019-2009 nullifies PCM-005-2009. The centerpiece document is PCM-020-2009, here attached. PCM-027-2009 follows the execution of PCM-020-2009.

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The U.S. Report for Congress, LL File No. 2009-002965, implies that by Honduran Constitution Art. 313, section 2 the Honduran Supreme Court has the provision, but in the case of President Manuel Zelaya the Supreme Court was not complying with its obligations and its negligence allowed the lower Court of Letters of the Contentious Administrative to build a case without hearings3, with subjective and a-priori sentences, and with improper filing of documents, not even published in the Official Journal “La Gaceta,” as required.

According to the Constitution of the Republic of Honduras, the Supreme Court violated its provision, its obligations and did not proceed according to the Constitution in the matter of its original and exclusive competence.

II. Did the Honduran Supreme Court have the authority under the Honduran Constitution to request that the military remove the President because the National Congress, the Supreme Court, the Human Rights Ombudsman, and the Attorney General found an action of the President unconstitutional?

No, it did not. The military is defined only by Army and Armed Forces in the Constitution of Honduras. Title V, Chapter X, Arts. 272 through 293 clearly state it.

The term Public Force, as it is in many other countries, is reserved for the Police.

The Police are trained with familiarity in criminal law, while military training is focused on war expertise. The law enforcement has been naturally and traditionally done by the providence of the police, not the military. As a matter of fact Honduran police normally attends to all Court enforcement needs. There is not a Honduras constitutional exception on this rule.

More conclusively, there was no other army that the military had the need to confront. The bottom line for this Supreme Court, or any other military coup facilitator, was that no military coup could be done without the military, because of, precisely, the overwhelming war force that makes a military coup successful.

The complicity of the Supreme Court in the military coup extends to not punishing the violations to the Constitution, the Criminal Code and the peace of the country inflicted by the military and their agents in the government:

3 These assertions can be corroborated by examining original Honduran courts documents compiled on a powerpoint presentation available on line at the military coup’s government site: http://www.poderjudicial.gob.hn/NR/rdonlyres/FB12D38C-64BE-433A-A648-1D416F57623A/2464/CasoJoséManuelZelayaRosales3.pps

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a. Violation of Constitution Art. 278. – The orders given by the President of the Republic to the Armed Forces, through their Chief, must be followed and executed. [The Army is under the Executive as the Police is under the Judicial branches of power].

b. Penal Code4 Title XII, Chapter I, Art. 323. – Whoever offends the President of the Republic in his physical integrity or in his freedom will be punished by eight to twelve years in prison.

c. Penal Code Chapter II, Art. 328.- Who delinquents against the form of government will be sanctioned with prison from six to twelve years, and who executes actions directly aim to obtain by force, or outside of the legal venues, some of the following objectives:

1) To replace the republican, democratic and representative Govern by any other form of govern. [An elected President was replaced, after violent action and obscure Congress dealings, by a non-elected President].

d. Penal Code Chapter VI, Art. 336. – Criminals of rebellion are who use arms to topple a govern established legally or to change or to stop in all or in part the constitutional regiment in existence in which refers to formation, functioning or renovation of public powers.

e. Penal Code Art. 333. – It applies the punishment of reclusion from three (3) to five (5) years and fine from fifty thousand (L. 50,000.00) to hundred thousand (L. 100,000.00) to the official or public employee that:
3) Makes victim of humiliation or illegal pressures to the people trusted in their custody;
4) Does not process or resolve within legal terms an Habeas Corpus petition or protection or any other means to obstaculizing its processing; and
5) Order, execute or allow the expatriation of a Honduran citizen.

III. Did the Honduran National Congress properly approve the Articles of Impeachment of the President as provided for by the Honduran Constitution?

No, it didn’t. Because until June 26, 2009, Honduras Congress called only for an extraordinary session with the single agenda issue of electing the Congressional Commission, the first ever to investigate President Zelaya’s conduct. This commission reported a day after the military Coup (Monday June 29 at 12:20 AM. Military Coup happened on Sunday June 28th, 2009, at 5:30 AM). The Commission’s report did not present any article leading to President Zelaya’s impeachment, only some consideration points.

4 All references to Criminal Law are taken from Honduras Penal Code, Decree 144-83, available on line at:
http://www.congreso.gob.hn/Codigos/DECRETO%20144-83.pdf

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It is not feasible that in less than three days, mostly during a weekend, a Congressional Commission could gather enough information about President Zelaya from different governmental offices, Congress members and the Executive Branch, as well as to classify this data, evaluate it, analyze it, reach conclusions and write a report. There was not enough time for an “extensive” investigation, but rather only time for cursory notes. And without such an extensive investigation on such a serious issue, the Congress did not have enough information to properly approve any impeachment against the President.

Congress claimed on Monday June 29th, 2009, at 12:37 AM to be in possession of a letter of resignation signed by the President four days earlier, coincidentally written in similar content as the considerations of the Congressional Commission. Why would the President have signed a letter of resignation and then not present it to the Supreme Court to avoid an order of arrest against him? A President who signs a letter of resignation is not a president who wants to be re-elected; all charges against him should have been dropped and his case closed.

The consequent Congressional Decree5 had no articles of impeachment, only six general and subjective considerations. It jumps to an article disapproving the President and then to the next removing him from office, with the ill intention that Congress can interpret disapproval as removal. The military coup idea that the Honduras Congress has the right to remove the President if it only disapproves of him.

The Congressional Commission’s improvised report and the mysterious Presidential resignation letter are the only two documents the National Congress has to show for the designation of its president Roberto Micheletti as president of Honduras. This designation would have never taken place if President Zelaya was not violently removed from his office and forced into expatriation and absence by the military coup a day before.

IV. Did the Supreme Court follow up by holding a proper, constitutionally mandated trial of the President?

No. The Supreme Court could not follow up by holding a proper, constitutionally mandate trial of the President, because President Manuel Zelaya was violently removed from his office by the military coup that forced him to be absent as a result of his expatriation on June 28th, 2009, and without the Supreme Court ordering the immediate return of President Manuel Zelaya to stand trial, then the Honduran Supreme Court did not follow up by holding a proper, constitutionally mandated trial of the President.

5 Congressional Commission’s report and Letter of Resignation are not available. Congressional Decree is attached here.

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V. Was the removal of Honduran President Zelaya legal, in accordance with Honduran constitutional and statutory law?

No, it wasn’t. The previous four answers to the questions in the Report illustrate that the available sources used in the Report were insufficient. They missed the correlation of the facts, ignored Honduran law issues that were relevant to the case and did not show any awareness that the judicial and legislative branches of power were relentlessly seeking to criminalize President Zelaya.

Conclusions

The Honduran Congress and Supreme Court blamed President Zelaya for being the provocateur and the divisive one, but why the Supreme Court and Congress fall in a destructive spray to show who is must stubborn? This only brings Honduras to its knees, and everyone loses. It is time to stop it, to let President Zelaya finish his legal term. It was a mistake on the part of the Honduran Supreme Court to use the force in this matter, instead of trusting fully the rule of law. If the President would cheat with the Yes and No ballots then the world will be with Honduras for a just cause, but Army violence and dirty judicial play only damage Honduras. As demonstrated above, the removal of President Zelaya was not legal, it was not in accordance with Honduran constitutional and statutory law. Let us fully respect and trust the rule of law, and let democracy win.
It is important to note that the military coup’s purpose is to dispose forever of a duly President elected by the people of Honduras, José Manuel Zelaya Rosales. The November 29th, 2009, elections seals, perpetuates, fulfill and completes fully the goal of the military coup. Therefore, elections as the last thrust of the military coup should be declared null immediately and defined without any effect. This military coup uses the “law” as a shield to prevail, claiming to defend democracy in Honduras. If these forced elections are not stopped, democracies themselves would be legitimizing and legally accepting the aim and completion of the military coup.

José María Rodríguez González
U.S. and International Foreign Policy Analyst
September 2009

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Attachment 1A:
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Attachment 1B:
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Attachment 2:

I don’t think FARC is any reason to let Uribe shred the Colombian Constitution either.

HarryEagar: HarryEagar says:
So, the Honduran government-du-jour has suspended civil liberties.
Who would ever have predicted that?
Oh, yeah. Me.

Of course. Zelaya incites his supporters to violence, legitimate government declares martial law to protect order. Zelaya blames legitimate government for oppression of the worker.

Who would ever have predicted that?

Oh, maybe just about anyone with any historical knowledge of leftism and how it operates.

Cloward-Piven/Rahm strategy – never let a good crisis, especially one you’ve worked so hard to cause, go to waste:
CLOWARD-PIVEN STRATEGY

HarryEagar says:
So, the Honduran government-du-jour has suspended civil liberties.

Who would ever have predicted that?

Oh, yeah. Me.

Zelaya’s supporters go nuts, cause violence, legitimate government has to restore order.

Who could have predicted that?

Anybody with an appreciation of the history of the way the left operates. Now they can blame the legitimate government.

Well, here is this re FARC from Columbia. They are supported by Chavez and active in the drug trade. They were arrested in NYC. Are the same people saying that Honduras can do us no harm the same ones saying that Afghanistan, Saudi Arabia etc, can do us no harm before 9/11?

They removed a would-be dictator by their laws. Period. He is also certifiable, see the Israeli’s beaming radiation at him. Why would anyone want this guy back in power and another dictator taking over a Democracy in South America? So long as we are a democracy, they will hate us. They don’t want their people getting any ideas about liberty and self-determination.
Obama has been appeasing Chavez, Castro and every other dictator in the world for nine months, yet FARC was just arrested in NYC and the plot to blow things up In NYC by the Afghan terrorist, just revealed. Where is the “love”?
Why would anyone think that the left-wing dictators in South America would help with the drug trade and in other areas? I can’t even imagine what the other areas might be, but they won’t help.
For all the whining about mistakes made by the Honduran government, once Zeleya got permanent power, there would be no law other than his own. Then what would you do and say? Oh well, too bad. If they want freedom, they’ll have to get it on their own. No skin off our noses.

Why are we supposed to not meddle in other countries affairs, as Obama has said and apologized for ad nauseum, yet, meddling in the affairs of Honduras, a democracy trying to stay that way, is OK?

PS We shut down airports and did other things in a fairly recent crisis of our own.

The Honduran coup government has declared a state of emergency, which allows it (under the constitution) to suspend most civil rights. Police can arrest with no warrant, and there is no freedom of movement of of the press. They followed it up with a raid on the two most important opposition media: Canal 36 (TV) and Radio Globo. Essentially all of Radio Globo’s equipment has been confiscated. Also, the owner (manager?) of Radio Progreso, the only other significant opposition media, has received death threats.

Who would ever have predicted that?

Oh, yeah. Me.

“Reporting from Tegucigalpa, Honduras – The de facto government of Honduras suspended constitutional guarantees indefinitely late Sunday, outlawing public gatherings and making it easier for the army to make arrests.”

The rule of law in action.

Is this an argument in favor of pressuring all three branches of government in Honduras to give themselves up to a man who violated the Constitution of that country?

Or is this “cultivating” business all, as I continue to claim, just lame cover for blanket opposition to any and all American actions that might conceivably result in the advancement or protection of American interests abroad?

Did it occur to you that it might be in our interests to uphold the rule of law as a matter of principle? Chaos is what ensues when people and nations are motivated only by narrow self interest.

Some on the right have a greater faith in violence than in law. The sorry history of US intervention in Latin America testifies to that. “We’re all for democracy unless you elect someone we don’t like.”

Seriously, that’s laughable.

Try looking beyond your prejudice, caricature and hatred.

You might find something you actually like, and even agree with.

He was in power for a significant amount of time and did none of this. His successor has done some of it.

Just be honest. You don’t like this guy because he’s a leftie. Not because he was ACTUALLY harming the people of Honduras. But because he’s a red. A commie. A Chavez-lover. A Castro ally.

Since when are right wingers at all concerned about human rights in Latin America? Seriously, that’s laughable.

By this theory, any Jewish American can tell you whether the Israeli Supreme Court decisions concerning the settlements conformed with Israeli law.

Miguel Estrada is a hack who knows nothing about Honduran Constitutional law. But since he’s a card carrying member of the conservative movement with the right ethnicity, he was drafted to opine about it.

Now lets be clear here. I don’t like trying to extend one’s term limits, but Zelaya was proposing STANDING FOR ELECTION AGAIN. That’s not the act of a dictator. Meanwhile, Michaletti shut down the press, which IS the act of one.

Do you believe that the election would have been free and fair? I suspect that Zelaya’s uncanny ability to provide detailed election results for a referendum that never occurred would have extended to his reelection as well.

Zelaya might have decided to keep the result close, or he might instead have exceeded Saddam’s 100% tally from Iraq’s final election before his regime was overthrown.

OK, I’ll bite. What makes you think anything is unconstitutional in Honduras? To date, you’ve made no citations. So yes, when you say something “looks like” something bad, readers will —and should— tend to believe you are making personal judgments on looks.

Unlike the USA, most constitutions in the world do not limit government. But here’s Frankcross acting as if the Honduran Constitution is US law directly writ into Spanish:

“the military blatantly violated the Constitution by exiling him” or later “current government … blatantly violated the Constitution with the exile and, I think, shutting down the media.”

Unless you can cite a Honduran constitutional provision prohibiting the army from deporting an individual, claims the Honduran army acted unconstitutionally are simply made up out of thin air.

To us in the USA it “looks like” the deportation should be unconstitutional, but without a cite it isn’t. The army claims Zelaya was given a choice of jail or deportation. In the US, that would be illegal too, but explain how this is unconstitutional under Honduran law.

The US Constitution guarantees freedom of the press, but few other nations do. Does Honduran law follow US law or the rest of the world? Similar objections to police functions performed by their army —prohibited in the US— but common in the rest of the world.

Posting what you want the world Honduras to be like should be prefaced with “frankcross’s imaginings”; not claims of “blatant violations” as if it was real.

Well, without a hostile, expansionist power pointing nuclear weapons at us, there’s no particular reason to get exercised just because a particular government is somewhat left-wing.

So yeah, the cold war is over.

Err, Dilan, Russia is STILL pointing nukes at us, still has a doomsday system in operation, aids countries hostile to us (especially Iran and Venezuela), invades a country friendly to us (Georgia), meddles violently in the internal affairs of other friends of ours (such as the Ukraine) and threatens our allies.

And you think the cold war is over? What is it about modern threats, nukes, aiding our enemies, etc. that is different from the cold war days? Is it that the Russians are merely ruled by the KGB mafia than pretending to be communist while ruled by the nomenklatura mafia?

………….

Hans, get the memo. The Cold War is over. Venezuela and Cuba are not existential threats to the US. They are pipsqueaks, and there’s no reason in the world why we should antagonize them.

Apparently Dilan has decided that the only foreign policy issues of concern are “existential threats” – an odd view perhaps a result of having been overly fixated on the low-level threat of nuclear war during the cold war (that still exists, at the same level). Dilan, foreign policy folks for thousands of years have recognized that issues outside of “existential threats” are significant.

Who gives a crap that Zelaya is anti-American? What can he do to us?

Errr, right. Yeah, perhaps, say, like Castro, another tin pot of a small country in our hemisphere who caused us all sorts of grief.

Dilan, grow up.

Well, no, berating opponents of America’s pro-Zelaya policy as “pussies” who need to “grow a pair”, while advocating kowtowing to the will of other Latin American countries for fear of their terrifying retaliation, doesn’t sound “simplistic”. It just sounds self-contradictory and needlessly rude.

Meanwhile, what ACTUALLY is happening is that America is cultivating better relationships with Latin American countries that MATTER to us by not worrying about the alleged anti-American tendencies of a deposed leader in an UNIMPORTANT country that the region wants reinstalled.

Yes, you’ve already asserted that. And I’ve already asked you if you could explain to me the manifold ways in which this “cultivating better relationships” amounts to much, much more than simply bending over for anti-American leaders in Latin America by actively promoting yet another vehemently anti-American leader. And you’ve yet to describe a single shred of evidence–even of the most evanescent, subjective variety–that might suggest that all this “cultivating” is accomplishing anything positive for the US. That’s not surprising, because the “cultivating” of Iran, Syria, Russia, China and numerous other mildly-to-murderously anti-American regimes around the globe has been equally stunningly feckless.

I’m not asking for much–a single, concrete threat not carried out, or incentive paid off, in return for America’s aggressive promotion of Honduras’ loudly anti-American ex-president, will do. Heck–I’ll settle for a concrete threat uttered, or incentive offered. Have you got anything? Anything at all?

Or is this “cultivating” business all, as I continue to claim, just lame cover for blanket opposition to any and all American actions that might conceivably result in the advancement or protection of American interests abroad?

Classic reasoning. Support the coup because “you suspect”. There is no basis for your suspicion.

You conservatives are a bunch of pussies. Seriously. This is the United fricking States of America. Some guy in Honduras can’t do crap to us.

I guess the well being of the Honduran people means little to you. I suspect that a demogogue like Zelaya would be much worse for the Honduran people in the long run as he takes over various government powers, restricts the press (far more than the current government has), destroys the economy, and drives the industrious people way. He will turn it into another “people’s paradise” where the people with no resources have no chance to get out.

Well, one thing is that the era was not long past where golpes de estado were a rather common occurrence in Latin America, and there’s plenty of support among elected leaders of the hemisphere for not going back to the bad old days where America supported governments installed by the military purely because they were right wing (hence the OAS condemnation of the coup).

But, Micheletti is of the same party as Zelaya and was “installed” by the constitutional line of succession?

I seem to recall hearing that some guy in a cave couldn’t do crap to us.”

Yes, that was the position of the GOP during the Clinton presidency and of the Bush Adminstration pre-9/11. “Guy in cave determined to strike in United States.” No problem.

Glad to see a reference to the “invasion of Georgia” per Randy Schueneman.

Their gas-pipeline manipulations and last year’s invasion of Georgia do not inspire confidence.

Yes, those nasty Russians just annexed all of Georgia, didn’t they? They certainly could have if they had wanted to–their counterattack and strike into Georgia had basically destroyed the Georgian military’s ability to resist. Yet, Georgia is still there and all Russian troops are back within Ossetia and Abkhazia, right where they were before the flare up last year.