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Sunday, June 28, 2009
By Steven L. Taylor

Fausta points (see the 1:50pm update) to this piece in the Hondurdan daily, La Prensa, which notes a press release from the Supreme Court of Justice, which stated that “las Fuerzas Armadas actuaron en base a ley” ["the armed forces acted with a legal basis"], specially a judicial order, in their move against President Zelaya.

Now, the problem is that just because a institution of the state declares an act legal does not make it so. There is little doubt in my mind that the Supreme Court of Justice could have issued an order to block Zelaya’s plebiscite (which it had already declared illegal and that the Congress had likewise banned), but it is a strain (to put it mildly) to assume that the Court has the power to unilaterally dismiss the President, let alone remove him from the country.

As such, I would disagree with Fausta’s assessment (made at the above link at he 1:40pm update):

CNN en español mentioned that Zelaya was arrested by court order. This signals that all the Honduran institutions were behind this move, in which case the president was overthrown, but it would not be a coup d’etat.

Perhaps this is a quibbling over terminology, but just because the actions were not initiated solely by the military doesn’t mean it wasn’t a coup. Indeed, coups often involve elected officials and flimsy attempts at legal justification (Fujimori’s 1992 coup in Peru immediately leaps to mind).

The key question here is whether there is any constitutional right for the Court to order the military to arrest and exile the president. I think I am on firm ground in assuming that such a power does not exist (although I will confess that I have not actually consulted the Honduran constitution on this point as yet). This was clearly an extra-legal removal of a president. That makes it a coup.

The story notes, by the way, that the president of the Congress, Roberto Micheletti, will be sworn in as president sometime today.

Filed under: Uncategorized | Comments/Trackbacks (13)|
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13 Responses to “The Legality of the Honduran Coup”

  1. MSS Says:

    Congress had not “banned” the plebiscite, as the measure they passed is not law. (That would require the president’s signature, or an override.)

    Of course, they should not have to “ban” an executive act that is most likely illegal in the first place.

    Yes, the problem of a unitary unilateral executive…

  2. MSS Says:

    Oh, and yes, I have always maintained that acts by state institutions to determine who occupies a supposedly elected presidency are coups, regardless of whether carried out by men in camis or by men and women in robes…

  3. Steven L. Taylor Says:

    In re: #1, good point about the lack of signature on the congressional action.

    In re: #2, I was wondering how long it would take you to make the point ;)

  4. On the Honduran Coup Says:

    [...] The Legality of the Honduran Coup [...]

  5. Daily Pundit » birds of a feather Says:

    [...] I guess it all depends on the legal definition of what a coup is. Submit to Stumbled Upon! -drach Comments on this [...]

  6. Zelsdorf Ragshaft III Says:

    As I understand what happened. The Honduran President wanted to stay in office beyond what their constitution allows. He intended to hold a plebiscite to make the change. Problem is, the constitution does not allow for itself to be amended by plebiscite. Hence the actions of the President deems illegal. This was stated by both the legislature and the supreme court. When the President of Honduras stated he intended to hold the plebiscite anyway. He was arrested and deposed. That is not a coup, that is enforcement of existing law. You do not have to actually rob a bank to be arrested for intent. This guy was caught at the bank door, gun in hand, note already written. His intent was clear. Anyone who has a problem with this does not believe in the rule of law.

  7. Steven L. Taylor Says:

    Yes, but when you catch the guy outside the bank you don’t arrest him and then punish him at that exact moment-you go through the appropriate legal process.

    Yes, Zelaya was attempting to hold an illegal plebiscite. How about blocking the plebiscite? How about any number of other legal options? Are you really going to tell me that the only option open was to arrest and exile the president?

  8. Zelsdorf Ragshaft III Says:

    I would say the Supeme Court of Honduras gets to decide what is legal and what is not. Not some Blogger in the United States. When you catch that intended bank robber, you do not just let him go. The process usually involves incarceration as bail amounts tend to be rather high and having a gun is an enhancement because of the possible harm to bystanders. By the way, how does a Court block a plebiscite? Do the judges go to the polling places and put tape over the ballot boxes? I fail to understand why the legality of the acts of the law deciders is questioned.

  9. Steven L. Taylor Says:

    Zelsdorf,

    By your logic the US Supreme Court could order the arrest and exile of the President of the United States.

    When you catch the bank robber, you do what the law let’s you do: detain him for trial and allow due process to follow its course. The due process part is rather important.

    If the Court could get the military to arrest the president, I suspect they could have rounded up ballot boxes. Or they could have ruled the results null and void or any number of other things. Just because an illegal poll took place doesn’t mean that it would be magically instituted.

    Are you really going to tell me that the only option was removing the president by arms and exiling him?

  10. Joseph Blough Says:

    You have to read the Constitution of the Sovereign Nation of Honduras to know that the so called “coup” was absolutely legal. They do not operate on the basis of OUR (U.S.) constitution.

  11. Steven L. Taylor Says:

    Joseph,

    I am rather aware of that and have been reading their constitution, in fact (and all references to constitutionality in this context refers to their constitution).

    Could you help me out and cite exactly where in the Honduran Constitution that this specific action was constitutional? I am having trouble finding it.

    Thanks.

  12. PoliBlog: A Rough Draft of my Thoughts » Back (Again) to the Honduran Constitution Says:

    [...] readers may recall that over the weekend I wrote the following: just because a institution of the state declares an act legal does not make it [...]

  13. PoliBlog: A Rough Draft of my Thoughts » Getting Down to Basics in Honduras Says:

    [...] was legal that means a) it was legal and b) therefore not a coup-something I have discussed here and here. [↩]I use the word “alleged” rather specifically, as there had not yet [...]


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