Wednesday, July 1, 2009

Reflections on the Honduras Presidential Removal

The following comes from a Facebook thread regarding the situation of Manuel Zelaya begun by Jimmy Wales, the founder of Wikipedia. His own opening comment was as follows:
Baffled by Honduras situation. The Supreme Court and the democratically elected Congress voted unanimously to remove President Zeleya [sic], who was in open defiance of a court decision about an illegal dismissal of the military command, and about to stage an illegal 'election'. And yet, this action is universally condemned internationally as a "coup"? There must be facts of which I am unaware? — Jimmy Wales (30 June 2009 6:17 pm)
He later accepted the “friendly amendment” of the correct spelling of “Zelaya.”

It reminded me of the quote by Benjamin Franklin wittily delivered in the musical 1776:
Why, Mr. Dickinson, I’m surprised at you! You should know that rebellion is always legal in the first person – such as ‘our’ rebellion. It is only in the third person – ‘their’ rebellion – that it is illegal.
— Benjamin Franklin
Another Facebook friend of his stated:
i think the point everybody is missing is that the UN et al cannot condone a government that has seized power in a coup -- by taking the president at gunpoint in his pyjamas. If the president was acting illegally -- as zelaya apparently was -- impeach him dont threaten to murder him and cart him off to costa rica. The Honuduran military has done far worse than Zelaya. Two wrongs don't make a right and other cliches.
Reflecting from a generally naïve point-of-view, I responded:
It was a coup, though a bloodless one. The proper legal method to get rid of him would have been impeachment, with arrest by a civil authority. The military of nations generally are limited constitutionally because the President is generally considered C-in-C. When you overthrow your boss, it is a rebellion. When the military overthrow a president, rather than a legislature, it violates standard civil government checks-and-balances. Thus, technically, a coup.
In response to my thoughts, another direct reply was made to the thread:
Peter, ... the boss of the civil authorities (e.g., the police) that would have to carry the arrest is also the president. By your reasoning it would still be a rebellion. If a subordinate gets a court order to arrest the boss, what should he/she do?
Which is a good point. So tonight I wanted to dig a little deeper. I happened upon a good friend who was perfect for the necessary detective work! Tonight, I replied as follows:
I am sitting tonight with a good friend who is a very educated socio-political academic from Venezuela. He is helping me go over the Honduran Constitution.

The biggest problem is that there is *no* clear provision in the lengthy document on how the various powers maintain checks and balances. There is no direct clause for how to conduct the removal of the Presidente, or most any other elected official. Impeachment is not mentioned, per se.

However, there are a few clauses to work with, primarily: " usurpación de los poderes constituidos se tipifican como delitos de Traición a la Patria." Usurpation of constitutional powers is treason.

Thus, if you disobey the Constitution, no one need obey you. This is the argument of the Supreme Court. They can theoretically declare anything unconstitutional, thus treasonable, and can immediately have their judgments put into effect. There is no override on their decisions, except by a popular referendum for a constitutional revision.

In review, the decision of the Honduran Supreme Court seems tacitly legal, though highly disputable.

According to one assessment (

"Honduran constitutions are generally held to have little bearing on Honduran political reality because they are considered aspirations or ideals rather than legal instruments of a working government."

For the Constitution itself:

I still maintain my view that this was a quasi-legal coup. While arguably a de jure power of the Supreme Court, it is could be just as arguable that the Supreme Court usurped and overstepped their Constitutional authority. They just had the backing of the military.

Thus, quite conforming to a coup as per Wikipedia: "A coup consists of the infiltration of a small, but critical, segment of the state apparatus, which is then used to displace the government from its control of the remainder.”
The truth of the matter is that the Honduran Constitution is a rather poorly-written set of rules to govern from. Anyone used to playing diplomatic strategy games could spend days arguing about the gaps and fuzzy parts. Eventually the consensus of the players would be that the game seriously needs a second edition of the rules, and, in the meanwhile, a full-blown set of errata and addendum.

While the definitions of “high crimes and misdemeanors” is elastic and arguable, the U.S. Constitution has a far more explicit, albeit very brief, method to determine what to do in case of such crises of confidence in a chief executive.

In Honduras, lacking such explicit methods for removal, the national Supreme Court basically has the tacit de jure power to do what they did. It may indeed rub many people the wrong way, given cultural and political biases towards what we are familiar with in our own systems.

I would be quite interested to hear other opinions on such a topic. Was this a de facto coup d’etat, or a de jure removal of an executive in broach of his constitutional duties?

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