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Wednesday, July 1, 2009
By Steven L. Taylor

Regular 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 so.

This was in response to the ongoing argument that because the Supreme Court of Justice in Honduras ordered the arrest, exile and removal of President Zelaya that it wasn’t a coup and/or it had to be constitutional because, after all, the coup-makers said so.

However, it would appear that there are some constitutional provisions that clearly seems to vitiate at least part of last Sunday’s order, to wit: the exile part.

Greg Weeks notes (via Inca Kola News) a couple of articles in the Honduran Constitution that would appear to preclude exile:

Article 81:

Toda persona tiene derecho a circular libremente, salir, entrar y permanecer en el territorio nacional.

Every person has the right to circulate freely, leave, enter, and remain in the national territory.

Also Article 102:

Ningún hondureño podrá ser expatriado ni entregado por las autoridades a un Estado extranjero.

No Honduran can be expatriated or handed over by the authorities to a foreign state.

As Greg notes “I don’t see a lot of wiggle room there” -especially the no expatriation clause in Article 102.

While clearly it is too early for a definitive legal word on these issues, I would note that for those of us who have been sincerely trying to get a handle on the constitutional parameters of relevance to the actions of various Honduran governmental actors, there has yet to be a clear provision to support what the SCJ did vis-à-vis Zelaya’s exile and removal and now we have two that would appear to demonstrate that the exile itself was unconstitutional.

To put it in less academic terms:

Evidence for Constitutionality of the Exile: 0
Evidence for Unconstitutionality of the Exile: 1

Again: while it may have been true in the mind of Richard Nixon, just because someone in government does something, does mean that its legal.

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67 Responses to “Back (Again) to the Honduran Constitution”

  1. Vladimir Says:

    Can you give a link for any declaration from the new government that Zeyala is exiled? Why are you so sure that his move to Costa Rica was not part of some sort of agreement to avid getting him arrested (which would certainly lead to an even deeper crisis)? Why are you accepting Zeyala’s word at face value while casting doubt over the actions of every other players including the Congress, SC,the AG, the HR ombdusman, etc?

  2. Vladimir Says:

    Takie a look at article 239.

    ARTICULO 239.- El ciudadano que haya desempeñado la titularidad del Poder Ejecutivo no podrá ser Presidente o Vicepresidente de la República.

    El que quebrante esta disposición o proponga su reforma, así como aquellos que lo apoyen directa o indirectamente, cesarán de inmediato en el desempeño de sus respectivos cargos y quedarán inhabilitados por diez (10) años para el ejercicio de toda función pública.

    Now, it clearly doesn’t exclude the President. And while the final redaction of the referendum was not about term limits, there were many occasions when, on the record, Zeyala has said that he wanted to alter term limits. And he continues to say that from Costa Rica in his “exile”.

    From all I’ve read, there is no legal procedure for impeachment. So, there is a void in legislation, since article 239 includes the president, but there is no way to enforce it. In most countries in such a situation, the Supreme Court would say that it is their prerogative to fill this gap (even tough Republicans would start screaming “judicial activism! judicial activism!” at this point).

    So what is the legal way out of this mess? Can you give me one that doesn’t look worse than having the Supreme court rule to oust the president backed by the vote of the vast majority of the Congress? Keeping him on power would also be unconstitutional.

  3. Souza Says:

    Besides article 239, take a look at article 4 and article 42. Article 4 says that the alternability in the exercise of the presidency is mandatory, and that it constitutes treason to disobey this norm. Article 42 says that anyone who promotes reelections loses citizenship.

    ARTICULO 4.- La forma de gobierno es republicana, democrática y representativa. Se ejerce por tres poderes: Legislativo, Ejecutivo y Judicial, complementarios e independientes y sin relaciones de subordinación.

    La alternabilidad en el ejercicio de la Presidencia de la República es obligatoria.

    La infracción de esta norma constituye delito de traición a la Patria.

    ARTICULO 42.- La calidad de ciudadano se pierde:

    5. Por incitar, promover o apoyar el continuismo o la reelección del Presidente de la República; y,

  4. Steven L. Taylor Says:

    Vladimir,

    I am basing the discussion on the fact the military itself has claimed it acted on an SCJ order which the SCJ or anyone else has yet (to my knowledge) made public.

    Souza,

    Yes, I have discussed those articles before. Again, I agree that Zelaya was behaving badly and deserved legal sanction. That fact does not make exile constitutional nor does it explain the exact constitution provisions used to oust him.

    I am curious if you could help show me (and I am being sincere-I really want to know) where Zelaya explicitly advocated for re-election. I am assuming that he must have done, as so many people have claimed that he did. However, it wasn’t in the text of his proposed (and I agree, illegal) consulta.

  5. A.W. Says:

    Seems to me that a constitution can seem very clear yet the supreme court can find exceptions-some we accept and some we don’t.

    For instance, our constitution guarantees absolute freedom of speech but then again, defamation suits are allowed, you can be punished for shouting fire in a theater, for threatening a person’s life and so on. In some sense all of those are limitations on free speech but they don’t “count” for one reason or another. And those are just the least controversial exceptions and exclusions form that principle.

    Likewise, all persons are guaranteed due process, but 200+ years of unbroken tradition says that when those persons are enemy combatants, not so much so.

    And I find it inexplicable that Obama will pretend to know how to read the honduran constitution, but took so long to denounce the obviously fraudulent elections in iran, or the violence agaisnt the protesters there.

    And ultimately the legal fetishists should remember that we in america have a long history of breaking the law to achieve justice. For instance, our rebellion against England was not legal, and Lincoln explicitly said he would violate the constitution in order to save it. The Hondurans are saying they are doing the same thing-saving their constitution-and so maybe we should give them at least as much latitude we gave lincoln. I don’t pretend to know who is right, but I can say that there is enough doubt being spread around that i think we should just sit this one out. Certainly the fact we are siding with Castro and Chavez should give us pause.

  6. A.W. Says:

    I will add that you can “exhile” a person defacto without actually exhiling them. you can say, for instance, “if you come back to the country we will arrest you and put you on trial for capital offenses.” Now you aren’t technically kept from the country, but if you do come back you will be subject to consequences severe enough to deter most people.

    Of course there are some doctrines in american law that might call that illegal nonetheless if our constitution had a provision like that, but again, is it our business to tell them how to read their constitution.

    gee, funny, everyone who said that the state of florida’s supreme court should have been accepted with slack-jawed credulity in the Bush v. Gore need to step away from that point.

  7. A.W. Says:

    And one more thing. anyone actually look at that honduran constitution as a whole?

    I don’t know much spanish, but it appears to have over 300 articles, many of which were amendments modifying other articles. You guys cited two parts from the first third of the constitution. Why should i have any confidence that there was nothing amending or modifying those two parts, especially given that taken literally it would mean that honduras couldn’t sign an extradition treaty under any circumstances. Which would be odd, given that there is an extradition treaty between them and us.

    http://www.oas.org/juridico/mla/en/traites/en_traites-ext-usa-hnd.pdf

    I won’t claim to be an expert on honduran law, but i consider it inherently lame that all these Americans are claiming to be.

  8. Vladimir Says:

    I have a link for an interview that he gave days before the “coup” where he says that he will continue his revolution (his own word, so much for keeping the constituional order…)
    Here it is (in spanish).
    http://www.youtube.com/v/ncYJyP_242U

    And, after a Constituinte Assembly is in place (ilegaly) to writte a brand new consititution what will keep it from altering term limits???
    How can one claim to defend the constitutional order in Honduras by supporting someone who is openly talking about scraping the constitution and doing a revolution???? I mean this is, by definition, a disrupt of the constitutional order.

  9. Vladimir Says:

    Prof.,
    Please forgive me my insistence and, sometimes, my excessive passion over this matter. I am a south-american and so I tend to see this kind of “Bolivarian Subversion” as THE real threath to the institutions of my country, much more than the menace of military coups which, at least in my country, Brazil, is almost nil.

    So, the international community is intent to push Zeayala down the throath of all the other institutions. Do you really think that this is not going to backfire? It is clear that the man doesn´t have political support to be president anymore. What if then he proceeds with his “revolution”? What if this ends in a civil war? What if this leads to Chavez having a pretext to invade the country? Is Obama going to go to war to save democracy in Honduras?

    My fear is that, unintentionaly, you (and many others) are helping to “give wings to snakes.” My fear is that, if there is a moment when actual sacrifices have to be made in order to defend democracy in Honduras, the same international community is going to turn its back to the Hondurean people…

    Let´s call for fair elections in November and respect for individual rights. Let´s leave the discussion as to wheter this was a coup or not to scholars. The path that the US, OAS and UN are taking is too dangerous. And no one of these people (including you and me) will have to live with the consequences. But the Hondureans will.

    If we were watching civil society rising up in Honduras to confront the new government in any significant way (like in Iran) I would change my position. But, this is not happening. In fact, large crowds are are taking the streets to support the new government.

  10. Steven L. Taylor Says:

    Vladimir,

    Let me take a different route to discuss this issue: as a Brazilian you certainly know from your country’s history what can happen when the military assert undo and extra-legal influence over politics.

  11. PD Shaw Says:

    I don’t see a lot of wiggle room with the prohibition against exile either, unless loss of citizenship occurs first. If he was stripped of his citizenship, I would find that far more troubling than the other two sanctions that appear to have been meted out (loss of office and banishment). A person stripped of citizenship resides in a second-class from the rest of the population (see Dredd Scott).

    Even in the U.S., a politician does not have due process rights to remain in office. And a non-citizen can be compelled to leave the country in relatively summary fashion.

  12. A.W. Says:

    PD Shaw

    well, by the same logic there can’t be extradition. And yet there is a treaty allowing for exactly that. So clearly we are not seeing the whole picture. to pick out two parts of the constitution out of over 300 bears an extreme likelihood of being wrong, because another part of the constitution contradicts it.

    For instance, one might look at the our first amendment and say, “aha, i have complete fredom of the press. so i will take the latest John Grisham novel, make a xerox copy and distribute it to my friends!” Except of course there is another part of the constitution allowing congress to pass laws protecting copyright. that part has been read as an obvious exception to the principle of freedom of the press.

    So again I say the beginning of wisdom is “i don’t know.” We don’t know whether it is legal under the honduran constitution, and i have no good reason to think Obama knows better. So we should lay off.

  13. Steven L. Taylor Says:

    Even in the U.S., a politician does not have due process rights to remain in office.

    You are going to have to clarify that statement, as it seems to me that in fact a US politician does, in fact, have the right to retain office during an elected terms unless that person is expelled via some sort of due process.

    And a non-citizen can be compelled to leave the country in relatively summary fashion.

    Yes, but even if we assume (and it is an assumption) that Zelaya’s citizenship was striped (and nothing I have read indicates it was) wouldn’t you find it problematic to have a citizen stripped of citizenship without so much as a hearing wherein the person in question had a chance to defend himself?

  14. Steven L. Taylor Says:

    So again I say the beginning of wisdom is “i don’t know.” We don’t know whether it is legal under the honduran constitution, and i have no good reason to think Obama knows better. So we should lay off.

    But yet your default arguments seems to be that the coup was a good and probably legal thing…

  15. PD Shaw Says:

    A.W., good observation about extradition treaties.

    Apropos of no comment in particular, it’s probably useful to keep in mind that this is a civil code jurisdiction, not common law. That means the Constitution is not composed of general concepts, fleshed out by courts, through analysis and process. The articiles are supposed to be clear and understandable to the common Honduran. Nor are the courts disinterested arbiters of adversarial positions; they are investigative tribunals.

    I don’t know what that all means, but I think we need to know what the Hondurans think (a notion antithetical to Madisonian democracy) and we need to see the court order.

  16. Steven L. Taylor Says:

    One suspects that there isn’t a unified version of “what the Hondurans think.”

    If there was there would have been no need for the Micheletti government to imposes a curfew, including holding citizens for 24 hours without charge (see here).

    The forays into the constitution are interesting and relevant. However, there is still a fundamental problem of an elected president being rousted from bed and ousted from the country by the military, on orders from the SC or not. Surely this is clear?

    And as I alluded to above: there are a number of previous examples of military interventions like this and they don’t tend to foster healthy democratic development.

  17. PD Shaw Says:

    Prof. Taylor:

    I am an Illinois resident and was recently and deeply immersed in the issues surrounding impeachment. I believe the clear, scholarly concensus was that an elected official has no due process right to retain his job. Thus, he had no right to be heard, no right to present evidence, and no right to subpoena witnesses. Impeachment is entirely a political act, requiring nothing more than the proper number of votes. The Illinois legislature felt that procedural fairness necessitated giving the Governor opportunities, but this went more to appearance and legitimacy than “rights.”

    Stated another way, impeachment is about institutional checks and balances between jealous branches; there is no property or liberty interest put at risk.

    And yes, I think citizenship stripping (if that’s what happened here) is very problematic without a hearing.

  18. A.W. Says:

    Steven

    Well, my understanding is it comes from their supreme court and so yes, i default to thinking that they aren’t crazily off base, especially because they didn’t do anything that created a clear conflict of interest like appointing themselves the new government.

    Of course it is possible that it was a usurption of power. i would be first to argue that our supreme court has sometimes disregarded the constitution in favor of certain policy preferences. Whether liberal or conservative, probably everyone can agree that the supreme court hasn’t been 100% faithful to our constitution; we would just disagree on what decisions were unfaithful. So that default can be relatively easily overcome. But so far you haven’t convinced me, especially given that at least one provision would seem to say our extradition treaty with them is illegal. obviously there is something missing in your analysis.

    Now all that aside, I feel that the ultimate sovereign in any country is the people. so that trumps everything.

    PD

    Well, that is something i thought about too, although i wasn’t sure if the differences between common law and civil code extended to how their constitution was written, too. maybe if we can’t get a honduran lawyer to explain, we should instead find a Louisiana lawyer, since they are the only state in the union that goes by that system. :-)

  19. Steven L. Taylor Says:

    PD:

    Ok, I understand what you mean now. I wholly concur that impeachment is a procedure/political process and not a legal/judicial one.

    However, it is a legally defined process that has to be followed properly. One part of the government cannot simply decide to oust another part without following the appropriate process.

  20. Steven L. Taylor Says:

    As I continue to state: coup-makers always say that they are acting legally. Nothing new here and there is plenty of historical reasons to be skeptical of such pronouncement.

    But so far you haven’t convinced me, especially given that at least one provision would seem to say our extradition treaty with them is illegal. obviously there is something missing in your analysis.

    Three responses:

    1. It may well be that extradition is illegal in Honduras. It wouldn’t be the first time a country had such a provision in their constitution. The Colombian constitution forbade extradition (it was later amended to allow it).

    2. The issue here wasn’t extradition anyway.

    3. And this cuts to the core of this discussion. On the one hand you seem to want me to prove without any doubt whatsoever that the coup wasn’t illegal and yet seem not to need any evidence that it was.

    Whether liberal or conservative, probably everyone can agree that the supreme court hasn’t been 100% faithful to our constitution; we would just disagree on what decisions were unfaithful

    Likely true. However, the issue here is not some esoteric or ideological interpretation. We are talking about the arrest, exile and replacement of an elected president in a roughly 12 hour period without a trial or hearing. I continue to have a hard time with the fact that a lot of people seem to readily accept such an act.

    Now all that aside, I feel that the ultimate sovereign in any country is the people. so that trumps everything.

    That is, btw, Zelaya’s basic argument for why he ought to be allowed to poll the opinion of the populace about a constituent assembly ;)

  21. A.W. Says:

    Ah, perfect example of how one part of the constitution can interact with another in ways we foreigners might have trouble dealing with. In this google translation (noting of course that google translation can be dubious sometimes), article 42 states that you can lose your citizenship if you advocate for the reelection of a president. Which he not only did, but even illegally advanced a referendum on the subject, according to reports.

    http://translate.google.ca/translate?hl=en&sl=es&u=http://www.honduras.net/honduras_constitution.html&ei=gRRLSv36J4O6NfqNkbMK&sa=X&oi=translate&resnum=3&ct=result&prev=/search%3Fq%3DCONSTITUCI%25C3%2593N%2BDE%2BLA%2BREP%25C3%259ABLICA%2BDE%2BHONDURAS,%2B1982%26hl%3Den%26lr%3D%26safe%3Doff%26num%3D50%26newwindow%3D1

    And as far as the right to freely enter and leave the country, oh come on. No exceptions? No wiggle room? I will wager that there are prisons in Honduras (especially given that they are mentioned in article 87) and they prevent you from leaving the country while you are in prison. I suspect they also have immigration control. My guess is that the right is not nearly as broad as we are assuming.

    By the way, article 313 seems to talk about the right of the supreme court to command the military to carry out its orders.

    And then there are the facts. From the WSJ:

    While Honduran law allows for a constitutional rewrite, the power to open that door does not lie with the president. A constituent assembly can only be called through a national referendum approved by its Congress.

    But Mr. Zelaya declared the vote on his own and had Mr. Chávez ship him the necessary ballots from Venezuela. The Supreme Court ruled his referendum unconstitutional, and it instructed the military not to carry out the logistics of the vote as it normally would do.

    The top military commander, Gen. Romeo Vásquez Velásquez, told the president that he would have to comply. Mr. Zelaya promptly fired him. The Supreme Court ordered him reinstated. Mr. Zelaya refused.
    Calculating that some critical mass of Hondurans would take his side, the president decided he would run the referendum himself. So on Thursday he led a mob that broke into the military installation where the ballots from Venezuela were being stored and then had his supporters distribute them in defiance of the Supreme Court’s order.

    The attorney general had already made clear that the referendum was illegal, and he further announced that he would prosecute anyone involved in carrying it out. Yesterday, Mr. Zelaya was arrested by the military and is now in exile in Costa Rica.

    Honduras is fighting back by strictly following the constitution. The Honduran Congress met in emergency session yesterday and designated its president as the interim executive as stipulated in Honduran law. It also said that presidential elections set for November will go forward. The Supreme Court later said that the military acted on its orders. It also said that when Mr. Zelaya realized that he was going to be prosecuted for his illegal behavior, he agreed to an offer to resign in exchange for safe passage out of the country. Mr. Zelaya denies it.

    http://online.wsj.com/article/SB124623220955866301.html#printMode

    If those facts are true, its hard to believe that what Zelaya did was legal.

  22. A.W. Says:

    Steven

    > coup-makers always say that they are acting legally.

    Um, yeah, and so do people exercising their lawful power.

    And you’re missing my point on extradition. Its not to say that we are talking about extradition, but that by the very same logic you are applying, extradition is illegal. And yet is it provided for by treaty. So did they ratify a treaty contrary to their constitution? Or is it more likely we are misunderstanding the constitution. Given later I noticed that article 87 seems to specifically allow it, I guess we know the answer to that question

    Face it, we are out of our league trying to figure their law out. And yet Obama who took forever to say anything forceful on iran as they shot neda in the street, has jumped in with both boots on this issue. Why? It is nonsensical to me.

  23. A.W. Says:

    sorry it wasn’t article 87 that seemed to say that extradition was legal, but in fact 319. my bad.

  24. Vladimir Says:

    Well Steve,

    As a Brazilian I can assure you that when military coups happened here they never:

    - Were backed by the the Supreme Court and the unanymous vote of Congress;
    - The military did not have to pretend that they were following the rule of law (they just called it a revolution and the constitution be dammed);
    - They did not follow the constitutional line of sucession;
    - And, at least usualy, they would not place a civilian in power.

    I can also assure you that in Brazil, even in our worst episodes, there were players and organized institutions of civil society (parties, unions, lawyers association, the press, the church) dennouncing and protesting the coup.

    I also believe that in Brazil (as in the rest of Latin America) the concentration of power in the hands of the executive was one of the major cause for institutional weakness. I am pretty much sure that most of the scholars would agree with me on that point.

    While the military coups that took place in Latin America during the cold war are more fresh in our memmories, the coups perpretated by populists presidents who pretend to be for the poor and against the oligarchs have a much longer tradition. Do you think that they helped to foster healthy democracy?

    Presently, this kind of power grab by the executive (always justified with a crude and vulgar version of marxism or class warfare) is the major threat to liberal representative democracy in Latin America.

    I understand your concern about assumptions of what is the will of the people (I’m not even sure that there is such a think). But, come on, where is local the support for Zeayla?
    The guy was president up until saturday and now he can only get a few hundred people to protest his deposition. The president of the amateur soccer team in my neighbourhood could get a bigger mob on the street than Zeayala ;-)

    So let´s try to find some common ground here. I agree with you that the behaviour of the two other branchs was less than stellar and, unfortunately, it has raised the cloud of ilegitimacy over the new government.

    But, can you deny that this is a complex situation and just calling what happened an old fashioned Banana Republic Coup perpetrated by troglodytes is way too simplistic?

    Also, can you deny that pressing for Zeyala return´s to power is way too risky and that, if it backfires, it is the people of Honduras who is going to pay the price?

    Are we going to impose this, just so that this rogue (I think we agree about calling him that, no?) has more 6 months in power to continue ploting against the constitutional order?
    Just so that when the country is on fire we can pat ourselves on the back and say that we did not support the coup? (the coup that we are not even sure has happened?)

  25. Steven L. Taylor Says:

    If those facts are true, its hard to believe that what Zelaya did was legal.

    I never said it was (and indeed, have repeatedly noted otherwise).

    My focus has been, and remains, the legality of the coup.

    The guy was president up until saturday and now he can only get a few hundred people to protest his deposition. The president of the amateur soccer team in my neighbourhood could get a bigger mob on the street than Zeayala

    I think you should look at my most recent post, as the situation does not sound as cut and dry as you think that it is (click). If this was All of Honduras v. Zelaya, then why those measures?

    Also, according to one of those pieces, there have been “thousands” of pro-Zelaya protesters.

  26. A.W. Says:

    Steven

    Well, if he is behaving illegally, then the chances that the methods used to stop him were illegal go down considerably.

  27. Vladimir Says:

    “We are talking about the arrest, exile and replacement of an elected president in a roughly 12 hour period without a trial or hearing.”

    This is not true. The SC has been saying that Zeyala was steping outside the law for months. This power struggle has been taking place for a long time.

    And let´s remember that we are not talking about an Scandinavian country. The situtation could quickly derange to in Honduras, even towards a civil war or an invasion by other country, so it is understandable (although regretful and possibly unjustified) that the actions had to be taken very fast. It is obvious to me that this man, whose behaviour clearly indicates that he doesn´t have much regard for the rule of law, would not just wait, peacefully and obediently, for all the hearings and trials to take place. He would plot and kick and scream throughout the process and in the end he would still keep whinning about being a victim of a coup by the evil oligarchs.

  28. Vladimir Says:

    Show me a picture of these “thousands” professor. Just one.

    I can link some pictures of thousands protesting against him

    (I never would guess that there are so many oligarchs in Honduras, hehehe)

  29. Steven L. Taylor Says:

    Well, if he is behaving illegally, then the chances that the methods used to stop him were illegal go down considerably.

    Why

    Vladimir:

    This power struggle has been taking place for a long time.

    But not the process to oust him-and that is my point.

    What is he, an aspiring chavista lefist or an oligarch?

    And you did read the story about press repression and curtailments on the right to assemble, yes?

  30. Vladimir Says:

    The suspension of some individual rights is possible under Honduras constitution.

    See article 187:

    ARTICULO 187.- El ejercicio de los derechos establecidos en los artículos 69, 71, 72, 78, 81, 84, 93, 99 y 103, podrán suspenderse en vaso de invasión del territorio nacional, perturbación grave de la paz, de epidemia o de cualquier otra calamidad general, por el Presidente de la República (…).

    Article 72 is
    ARTICULO 72.- Es libre la emisión del pensamiento por cualquier medio de difusión, sin previa censura. Son responsables ante la ley los que abusen de este derecho y aquellos que por medios directos o indirectos restrinjan o impidan la comunicación y circulación de ideas y opiniones.

    So it was not an ilegal action by the new government.

  31. A.W. Says:

    Steven

    “Why?”

    um, because it means that the supreme court was acting to stop a dictatorial power grab. i suppose it is possible to use the halting of a dictatorial power grab as cover for your own dictatorial power grab, but then, why hasn’t that surpreme court then declared itself leader, instead of handing it over to yet someone else?

    i don’t pretend to know all the intricacies of their law, but none of it smells funny given the state of facts recounted by the WSJ article i quoted. i mean this is not slight lawbreaking, or unintentional lawbreaking based on a misinterpretation of the constitution. it seems this president has deliberately broken the law in contravention of previous supreme court orders.

  32. Vladimir Says:

    “What is he, an aspiring chavista lefist or an oligarch?”

    In my understanding, he is both.

  33. Steven L. Taylor Says:

    Vladimir,

    I didn’t make any claims one way or another about the legality of the moves, but rather as to what they say about the coup and whether or not it was a blow for democracy. You find yourself in the position now of having to defend censorship and curtailment of constitutional iberities.

    AW,

    You claimed “if he is behaving illegally, then the chances that the methods used to stop him were illegal go down considerably.”

    And I asked why and you really haven’t answered the question. It is wholly possible for one illegal to be countered with another. If you break into my house to steal my TV and I decide to respond by putting you in my basement and torturing you for a week to teach you a lesson doesn’t mean it was ok for me to do because of your initial wrong act.

    i don’t pretend to know all the intricacies of their law,

    And yet, you keep arguing over them ;)

  34. Steven L. Taylor Says:

    In my understanding, he is both.

    I take the point.

    Still, if his support is really so low, then why was there so much fear about his consulta in the first place? Again, if this is all really Honduras v. Zelaya, then this didn’t have to be such a mess.

  35. A.W. Says:

    Steven

    > And I asked why and you really haven’t answered the question. It is wholly possible for one illegal [act?] to be countered with another.

    Yes, I pointed that out. But what is the more likely thing?

    > If you break into my house to steal my TV and I decide to respond by putting you in my basement and torturing you for a week to teach you a lesson doesn’t mean it was ok for me to do because of your initial wrong act.

    And how often does that sort of thing happen? Is there an epidemic of people kept in basements after robbing someone else?

    I assume you would admit that the answer is “rarely.” Which is exactly my point. Most of the time when you stop someone from doing something illegal, you are not yourself acting illegally. I am sure it happens now and then, but it’s a little contorted to pretend that we should assume that their own supreme court is not only wrong on their law, but that they are part of some coup conspiracy. The simplest explanation is usually the best, and the simplest explanation is they were using their legal process to stop a coup, not to enact one.

    > [me] i don’t pretend to know all the intricacies of their law,

    > [you] And yet, you keep arguing over them

    And you not only argue over it, but you pretend to know even though you don’t really.

    All I am saying is that we are wrong to intervene in a situation that is murky at best. And bluntly the facts as i have seen them tend to support what the SC did.

  36. Vladimir Says:

    “Still, if his support is really so low, then why was there so much fear about his consulta in the first place?”

    Maybe because of the threaths coming out of Caracas? As an aside, I think that it is outrageous that no one in the international communnity, including President Obama, has yet said to Chavez, who keeps threathening military action, “Por que no te calas?”

    As for defending censorship, I regret that it has come to that. But, have you read the articles of the constitution that I just posted? So are you going to argue that the constition is unconstitutional?

  37. A.W. Says:

    Steven

    > Still, if his support is really so low, then why was there so much fear about his consulta in the first place?

    Um, according to that article they are going to adminster that referendum outside of the lawful authorities to run elections. Imagine if for instance Bush said in 2004, that instead of using our usual election apparatuses, that the balloting and voting would be carried out by members of the Federalist Society. Would that sound kosher to you?

    So the fear would be that the referendum would end up being about as fair as the recent iranian election.

  38. Steven L. Taylor Says:

    But what is the more likely thing?

    There is reason to assume what you are assuming. It is just as probable that one bad act begat another.

    And you not only argue over it, but you pretend to know even though you don’t really.

    As I noted in another comment thread, I have a Ph.D. in political science and have been studying Latin American democratic institutions for over twenty years. I read and speak Spanish and have written a book on Colombian politics which includes work on constitutional development. So while I will readily agree that I do not have the final answers on any of this, I do think I have some qualification to analyze the situation.

    Further, as I keep trying to note, having studies these things for some time, that extralegal power grabs like the one that appears to have been perpetrated by the Honduran government tend to have a serious, long-term deleterious effect on democracy. Again, please see my post from within the last hour about the press and assembly curtailments that have been put into place. Democracy is already suffering in Honduras.

    I would also note that from the beginning my goal has been to find the legal justification for the coup, and yet the more I look, the less I find.

  39. Vladimir Says:

    To A.W.

    The decree calling for the referendum tlaks about using “statistical methods” by their statistical bureau to determine the result.

    They are talking about changing the consitution based on an amostral sample of votes!

  40. Steven L. Taylor Says:

    Vladimir,

    Chavez is a blowhard and you will get not argument from me on that count. His threat to invade, however, are bluster (and they started after the coup, not before).

    As for defending censorship, I regret that it has come to that. But, have you read the articles of the constitution that I just posted? So are you going to argue that the constition is unconstitutional?

    As noted once already, I have made no claims about the legality of those acts. They are, however, blatantly anti-democratic. Again, you find yourself in the position of defending anti-democratic acts in the midst of arguing that the Zelaya ouster was done for the purpose of fighting tyranny. That is a difficult circle to square.

  41. Vladimir Says:

    I am still waiting for your comments regarding article 187. Where is the ilegality, professor?

  42. Steven L. Taylor Says:

    Still, if his support is really so low, then why was there so much fear about his consulta in the first place?

    Um, according to that article they are going to adminster that referendum outside of the lawful authorities to run elections. Imagine if for instance Bush said in 2004, that instead of using our usual election apparatuses, that the balloting and voting would be carried out by members of the Federalist Society. Would that sound kosher to you?

    You miss my point. I have repeatedly noted the legal problems with the consulta. However, you have to admit, legal or not, if Zelaya’s support was the near zero that you all appear to be arguing is the case, it would have been far easier to let him have his little vote and be embarrassed, yes?

  43. Steven L. Taylor Says:

    In re #41, see #40

  44. Vladimir Says:

    So, you regard the very constitution undemocratic.
    That is a valid point of view (although I´ll say that Hondureans should have the last say about that too). But then we have to stop arguing about how to keep the constitutional order, right? Either the constitution is valid or not. If you regard it invalid, why keep arguing about legality? Are you calling for a revolution or not, professor?

  45. Steven L. Taylor Says:

    There would have been no need for suspension of rights (constitutional or not) if there had not been an unconstitutional coup.

    Again: you are now in the position of having to defend anti-democratic crackdowns. One bad move begets another, and that is my overall point and has been from the beginning and it is likely to get worse.

  46. A.W. Says:

    vlad

    They were going by sampling? OMG, i can hardly believe he has the gonads to even try such a lame thing.

    Steven

    > However, you have to admit, legal or not, if Zelaya’s support was the near zero that you all appear to be arguing is the case, it would have been far easier to let him have his little vote and be embarrassed, yes?

    You miss my point. it wouldn’t be easier if he was going to fix the vote, or as Vlad claims, use a lame-ass method of claiming victory. if he wasn’t willing to go through lawful authorities but was still going to claim to carry out his vote anyway, then it is dangerous to allow him. Sheesh.

    > It is just as probable that one bad act begat another.

    But weren’t not talking about a mere “bad act” but a supposed coup attempt. And again, you are accusing their Supreme Court of intentionally misconstruing their constitution. not impossible, but yes unlikely. If i was a betting man, i wouldn’t bet on el presidente.

    and as for your creds, unless you are a lawyer in some civil law jurisdiction, i’m not buying it. i can’t tell you as an attorney under US law how often people would make amatuer mistakes in reading our law and our constitution. Its unfair to regular people, but law becomes almost like a foreign language, only its in some ways even worse than that, because often we actually use words that other people think they understand but they have a vastly different meaning in legalese. Words like malice, discovery, willfully, and constructive might seem familiar to you, but have unfamiliar meanings in the law. Its frankly a bit like a secret code that only us lawyers are taught. even direct translations of our law latin don’t help very often. Habeas corpus translates to “you have the body” which doesn’t even begin to explain what the writ of habeas corpus is. And res ipsa loquitor means “the thing speaks for itself” which only begins to hint at the web of legal doctrine underlying the concept.

    Understanding a foreign nation’s law is difficult and bluntly i don’t think either one of us are up to it.

  47. Steven L. Taylor Says:

    And again, you are accusing their Supreme Court of intentionally misconstruing their constitution.

    Yes, yes I am. And it would hardly be the first time in the annals of human history that such a thing has taken place.

    not impossible, but yes unlikely.

    Based on what?

    Understanding a foreign nation’s law is difficult and bluntly i don’t think either one of us are up to it.

    And yet…

  48. A.W. Says:

    Steven

    > There would have been no need for suspension of rights (constitutional or not) if there had not been an unconstitutional coup.

    That doesn’t follow. Lincoln suspended habeas corpus, but he did not carry out a coup. at most he violated the rules for suspending habeas corpus. and he regularly curbed freedom of the press, literally taking Vallandigham and throwing him out of the union and into the confederacy for his anti-union publications. Again no coup-at most a violation of the first amendment.

    At best it is evidence, but not proof.

  49. Steven L. Taylor Says:

    And AW:

    I would love to see a well documented discussion of the SCJ’s order to oust Zelaya. However, there doesn’t appear to be one and the SCJ has yet (at least the last time I checked) actually released their own order.

    As an attorney, what would you say about a court issuing an order, and yet being unwilling to actually release the text thereof or to make a statement about it to the public, especially an order of this magnitude?

    They have basically said “it is legal because we say so.”

    How is that at all a satisfactory answer?

  50. A.W. Says:

    Steven

    > And yet…

    I will say it again. YOU are the one who keeps pretending you know something about their law. i am pointing out the myriad ways you could be wrong.

  51. Steven L. Taylor Says:

    But I do know something about Latin American governments and regime change and it is that context I am commenting.

    And you seem to be doing more than being a devil’s advocate on this issue, you appear to be defending the coup.

    And

    > There would have been no need for suspension of rights (constitutional or not) if there had not been an unconstitutional coup.

    That doesn’t follow

    So, you are saying that the current suspension of right has nothing to do with the events of the weekend?

  52. A.W. Says:

    Btw, Steven 187 does seem to allow for the suspension of rights in an emergency. so it seems that their behavior is even easier to justify than lincoln’s: their law explicitly allows for it.

    Which makes your comment “This doesn’t sound like a legal, constitutionally defensible action.” to be a bit dubious itself.

    as for your complaint about seeing the order, well, do they even have their own website? google certainly hasn’t heard of it. Maybe in fact the order was released the old fashioned way: in paper.

  53. Steven L. Taylor Says:

    Yes, they have a website, but it appears to be down at the moment (a href=”http://www.poderjudicial.gob.hn/”>http://www.poderjudicial.gob.hn/) and yes, Google has heard of it: click.

    And to this point there has been no evidence of a paper order, either.

    And see my comment on that post as to what I meant about the sentence you cite (it was a reference to the application of the order to oust Zelaya).

  54. A.W. Says:

    Steven

    > But I do know something about Latin American governments and regime change and it is that context I am commenting.

    Yeah, and what does that say about coups. Are they typically started by the countries’ supreme courts? Or by strong man presidents? Sheesh. Talk about missing the forest for the trees.

    > So, you are saying that the current suspension of right has nothing to do with the events of the weekend?

    Nope, just that it doesn’t prove that what they did was illegal in booting their president out. Indeed article 187 seems to recognize that it is legal to do so. The Honduran founders decided that sometimes in extreme situations the rights under the constitution might be suspended. Its not a new idea. The romans had precisely the same concept in their constitution, and before you say it blew up on them, I will point out that it took 900 years to do so. And I might add that Lincoln had the same attitude-not exactly a dictator, you know?

    As for whether i am advocating for the “coup,” it only seems like i am supporting it because i am currently arguing against a person opposed to it. my actual belief is a giant “i don’t know.” and i take a hippocratic view of foreign policy: first do no harm. if you don’t know who is right and who is wrong, don’t take sides. But amazingly the president has jumped in here feet first, when in iran he couldn’t figure out who was right or wrong, and characterized protesters versus bullets a debate. sheesh.

  55. Vladimir Says:

    Professor,

    In answering A.W. you said:

    AW: not impossible, but yes unlikely.

    You:Based on what?

    Let me answer: on the fact that the Court is a colegiate. So ALL of them are rogues and usurpers. As is the Congress, the AG and the military. All that is happening is just a vast right wing conspiracy.

    (And since they could not find evidence that Zeyala was having an affair with an intern at the palace, they had to come up with this whole thing about a unconsitutional referendum :-) )

    According to your narrative ALL these actors are ploting against democracy in Honduras. All of them are in the pocket of Mr. Micheletti.

    This doesn´t sound likely to me…

  56. Steven L. Taylor Says:

    I suppose we will all have to wait and see how all this plays out.

    I would submit that to date it hasn’t exactly been a grand move in the direction of democratic health.

    But, it may all yet prove to be otherwise.

  57. A.W. Says:

    Steven

    As for the website, maybe i had english only results set in my preferences in google. my bad.

    Anyway, its down. does anyone know why?

    And i will add that in U.S. Courts often orders are issued, even by the supreme court, without any writing at all, or with the opinion to follow later. Generally on an issue this important, you would expect something written issued soon, with lots of citations and discussion, but not necessarily by now. indeed, rushed orders often stink.

    I can honestly say i have no idea whether they have issued a written order at this point. i will say that i am looking at a sort of screwed up page on their site right now, clearly current because it says it is July 2, everything is a mess. maybe there is just alot of traffic, or maybe there is some kind of problem. but i ain’t jumping to a conclusion right now.

  58. A.W. Says:

    btw, this article says the order was originally sealed, but was unsealed recently. http://www.bloomberg.com/apps/news?pid=20601086&sid=axGENUiy9yKs

    oh, and it was unanimous. so according to vlad we had a unanimous congressional action, and a unanimous supreme court. you only get that kind of agreement on a nixon-level threat to the constitution.

    Sorry the more i learn the less this smells like anything more than the defense of democracy. i give them the benefit of the doubt.

  59. A.W. Says:

    I will add, though, it is totally possible that i could be wrong. or for that matter, it could start with good intentions and go awry. i guess the way to think of it is a little like the process of bankrupty. you go into this extreme action and hopefully when it is done you come back stronger. but obviously there is a danger you might never emerge at all.

  60. Steven L. Taylor Says:

    Sorry the more i learn the less this smells like anything more than the defense of democracy. i give them the benefit of the doubt.

    That is your prerogative, to be sure. Again, though, you have to explain why that “defense of democracy” requires news blackouts, militarization of private TV stations, curtailments of the right to assemble, curfews, etc.

  61. A.W. Says:

    btw, donald sensing has some honduran experience and has alot of insight. http://senseofevents.blogspot.com/

    Of course he is just a blogger, so one should treat it with a grain of salt, but for what it is worth.

  62. Ignorance is Bliss Says:

    According to a comment on a previous post, article 239 states that:

    The citizen that has [in the past] carried out the role of the Executive can’t be President or Vice President of the Republic. He who breaks that law or proposes its reform, along with those those who support him directly or indirectly, will immediately cease carrying out their respective charges and remain unable to serve in any public office for a period of ten years.

    Assuming Zelaya did propose the law’s reform, does this article apply to him? If so, what process should be used to remove him? If the constitution does not specify what the process is, then how should it be determined?

    It seems to me that if the constitution specifies that commiting a certain act renders him unable to serve, and it does not specify a specific process for removing him, then it would be the SCJ’s responsibility to determine due process. If they believe that it was their call to make, it seems that they would have that authority.

    That would not make the arrest legal, nor the exile, but it would change it from being a coup to being a lawful removal from power, followed by some illegal treatment of a private citizen.

  63. Vladimir Says:

    To 62,

    We only have Zelaya´s word to back up the claim that he was forced to go to Costa RIca. If his arrest was illegal, the prerogative to establish that belongs to the SCJ (as is any complain about due process). If you think that the SCJ is acting illegally,you can try to impeach them. But that prerogative belongs to Congress.

    Who gave Zelaya, the UN, the OAS or Obama the right to act as the revision court of the SCJ of Honduras in matters regarding the constitution. Bringing he back to power would be a…coup.

  64. PoliBlog: A Rough Draft of my Thoughts » More Thoughts on Honduras Says:

    [...] Second, the legality of the exile is highly questionable. [...]

  65. PoliBlog: A Rough Draft of my Thoughts » More Thoughts on Honduras Says:

    [...] Second, the legality of the exile is highly questionable. [...]

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

    [...] 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 been an [...]

  67. Meddling in Honduras = GOOD - Page 2 - MotownSports.com Message Board Says:

    [...] at least the exile part of the supreme court order may be against the constitution. PoliBlog: A Rough Draft of my Thoughts � Back (Again) to the Honduran Constitution [...]


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