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Friday, July 3, 2009
By Steven L. Taylor

Obviously, I have been quite interested in the situation in Honduras, which makes sense since I have been interested in questions of power and rules and how their interaction leads either to stable governance or the collapse thereof in Latin America since I was an undergraduate over two decades ago. I have gone on to study Latin America and specifically the question of democratic institutions (including constitutions) since that time.

My biases here are not about left or right or linked to contemporary domestic politics, but rather are (I will admit) skewed toward a preference for democracy. My specific interest over the manner by which Zelaya was removed is based on a long-term understanding of how extra-legal actions like this one can damage the institutional and democratic health and development of a given state. After all, once you’ve removed one president via a arrest and exile, it is easier to do it again. Further, the more “flexible” the basic rules are seen to be, the more likely you are to have actions like Zelaya’s (which helped precipitate this crisis) in the first place.

Indeed, while I do not support the way that Zelaya went about it, the notion that the Honduran constitution needs replacing is not an unreasonable one.

Having said all of that, I would note that it seems to me that a great, great number of people are basing their opinions of this event really on nothing more than some combination of their dislike of Hugo Chávez and/or because they think that there are grounds to criticize Barack Obama’s response to the event (see, for example, the first sentences of these posts).

And in regards to left/right or Chávez, I will note yet again what I noted yesterday: the governments of the western hemisphere (left and right, pro- and anti-Chávez) all have condemned the action. This includes President Calderon of Mexico (who specifically accused his opponent in the elections of being a chavista) and President Uribe of Colombia, who is often seen as the most anti-Chávez leader in the hemisphere (even when Bush was still US president).

To echo and amplify Greg Weeks’ point from a post yesterday: Chávez and Obama both are irrelevant to question of the legality of Zelaya’s ouster.

That this is a complex situation with plenty of blame to go around is undeniable and I do agree, by the way, that Zelaya bears a great deal of responsibility in fomenting the crisis (please read that sentence twice before commenting). However, the legal basis for Zelaya’s ouster and exile remains murky at best. Octavio Sánchez’s defense in yesterday’s CSM1 is insufficient. He specifically cites article 239, which I discussed here, and that deals with the prohibition on advocating for presidential re-election. Sánchez presents the situation as a slam dunk. However, there are a variety of problems that he does not address.

First, the plebiscite that Zelaya was proposing said nothing about re-election. Indeed, there is no particular reason to think a reform to the constitution would result in a change to that provision one way or another.

As Greg Weeks rightly noted:

Zelaya is charged with trying to amend the constitution to allow re-election of the president (which would be illegal), yet no one has ever provided evidence to that effect. It is illegal to amend seven particular parts of the constitution, but the wording of the proposed vote did not mention any of them.

I do not care if you are positive he wanted to, as that does not constitute evidence. He said before the coup that he would leave office in 2010. Maybe he was lying, maybe not. But it deserves more investigation before overthrowing him. Ousting a president requires more than just assumptions about intent.

Second, the legality of the exile is highly questionable.

Third, let’s think yet again about what happened: the military rousted the president from bed before sunrise, removed him from the country and replaced him in office in a roughly twelve hour period. And while they were doing it, there was a press blackout:

The censoring of the press began on Sunday before dawn. Honduran media remained off the air while Zelaya was expelled from the country in an airplane.

And there has been a subsequent curtailment of the press and the right to assemble, including the militarization of a private TV station. If one is determined to make this into a simple story of the protection of democracy in the face of tyranny, one has to own all of these actions and recognize that they are questionable at best.

If it was obvious, legal and easy to understand why Zelaya was to be removed, why not arrest him in broad daylight with the TV cameras rolling? Why exile him? Why not make a clear and public statement as to the necessity and legality of the actions?

These are the types of issues and questions that ought to be answered and to this point they have not.

I would add, by the way, that if it was in fact the case that Zelaya was trying to make himself into a chavizito, then this action has potentially empowered him insofar as he has the entire international community behind him at the moment and he now has the fuel for more populistic cache with the poor in Honduras-after all, he is facing down the oligarchs, yes? The way things were headed he was going to be out of office in a few months, and now he has an international stage. It may come to naught, but if his political power in enhanced it will be yet another good example of why deviating from the rules often has unintended consequences. Indeed, it is clear that those who executed the coup thought that they could oust Zelaya and that would be that. However, now they have damaged their tourism industry (no one wants to travel to a country with internal unrest), have created international finance problems for themselves and may find foreign aid from the US cut off to go on top of all the other problems they are now facing. In short, this was a poorly thought out “process” that does illustrate why making up the rules as one goes can have problematic consequences.

  1. Based on the fact that Sánchez served in the previous administration would indicate that he is from the opposing political party and given the current situation in Honduras, that makes his assessment suspect. []
Filed under: Uncategorized | Comments/Trackbacks (26)|
The views expressed in the comments are the sole responsibility of the person leaving those comments. They do not reflect the opinion of the author of PoliBlog, nor have they been vetted by the author.

26 Responses to “More Thoughts on Honduras”

  1. Vladimir Says:

    Professor,

    I can´t resist, so I will post again.

    I think we have stablished that article 239 gives the SCJ the right to depose the President. Note that the article, as Octavio Sánchez stress, does not require an impeachment process or hearings of any kind.

    If you agree with that, then it follows that the right to rule if there was enough evidence belongs exclusively to the SCJ. And they have ruled that the evidence exists.

    Zelaya could then try to impeach the SCJ. But the decision of the Court was ratified by Congress, so it doesn´t appear that they are likely to do that.

    So, from the point of view of the constitutional order, the game is over for him.

    The legality or not of the exile is completely imaterial to Zelayas´s deposition. If the oficials charged to arrest him have abused their power by flying him to Costa Rica, these oficials should be brougth to justice (Hondurean Justice). But this does not absolves Zelaya nor is a base to declare his deposition ilegal. If a court order your arrest and the oficial beats you all the way to jail, you can sue the oficial or maybe even claim an indenization from the State. But you can´t argue that, since you were mistreted, you are no longer quilt.

    Unless you can refute these points you can no longer call this a coup or a disrupting of the constitutional order.

    You can say that the SCJ was unfair. You can say that the constitution is barbaric. You can call for a revolution.

    But, under the current constitutional order of Honduras, you (or the UN, OAS, Obama, etc.) can´t reinstate Zelaya except by the way of a coup or revolution. None of these institutions have the right to act as the Court of appeal of the SCJ or the right to impeach it.

  2. Steven L. Taylor Says:

    Vladimir,

    Please see my most recent post.

    S

  3. Steven L. Taylor Says:

    And, btw, it is impossible to divorce the exile from the discussion and definition of the act as a coup.

    And in regards to 239-and as Greg Weeks keeps noting-there is no evidence that Zelaya actually directly advocated for re-election. Again: the plebiscite’s language did not discuss re-election and even it passed and was implemented, it would have resulted in a vote in November to decide on a constituent assembly that would be selected at some future date. Meanwhile, Zelaya’s term expires in January. How is this a scenario in which he was seeking re-election, since he would not have been on the November ballot?

  4. Vladimir Says:

    “Indeed, while I do not support the way that Zelaya went about it, the notion that the Honduran constitution needs replacing is not an unreasonable one.”

    While I agree that the Hondurean constituion may need some amendments, I also think that Latin American have a bad habit of writing new constitutions that is not very helpful for the instittution.

    Further, the “Bolivarian” pechant to deal with constitutional matters through plebiscits and referendum, disregarding current institutions as useless tools of oligarchs is awful.

  5. Vladimir Says:

    If you look at the decree calling for the referendum, you can see that he was trying to come up with a brand new constitution.

    It is possible that the SCJ have interpreted that by doing this he was scraping the current constitution and all the “set in stone” articles.

    I would also point that article 239 does not diferenciate between seeking to alter term limits in benefit of oneself or other people. So the fact that Zelaya would be out of office by them is not relevant.

  6. Steven L. Taylor Says:

    Except that 1) it could just as easily have not sought re-election, even in a new constitution and 2) the charges have been (and from you even, at least in part) that Zelaya was seeking a bolivarian revolution a la Chavez and that he specifically was plotting to stay in power.

    The problem with all of this is that it comes down at this point to our opinions when it all should have been dealt with in a proper legal forum. Yet that route was eschewed (which is why calling it a coup is the correct term).

  7. Vladimir Says:

    “Having said all of that, I would note that it seems to me that a great, great number of people are basing their opinions of this event really on nothing more than some combination of their dislike of Hugo Chávez and/or because they think that there are grounds to criticize Barack Obama’s response to the event.”

    Yes. But the opposite is also true. There are many people basing their opinions on nothing more than the dislike to “elites” and “oligarchs” or on the belief that Hugo Chavez is the new great hope of the left.

    As for Barack Obama, I am not sure if his harsh condenation of Honduras, which is in sharp contrast to his mild approach to Cuba and Iran, does not involve some sort of “hedging” against the acusation that he is too weak on his foreing policy.
    Aparently, Obama sees no problem in forgetting about the democratic clause in OAS to acomodate a dictatorship that lasts 40 years, but is invoking the same clasue against one (suposing it is one) that will last 6 months. This is a dificult position to defend. I also don´t like his silence in the face of the threaths of military action coming out of Caracas.

    By the way, I realy like BO and I think he is right in Iran (not sure about Cuba). But, I´d prefer if he had not picked sides in this fight, restraining himself to affirm some shared values, demanded respect for individual rights and fair elections in November.

  8. Steven L. Taylor Says:

    Yes. But the opposite is also true. There are many people basing their opinions on nothing more than the dislike to “elites” and “oligarchs” or on the belief that Hugo Chavez is the new great hope of the left.

    I assure you, my reasoning has absolutely nothing to do with any of the above.

  9. Vladimir Says:

    I was not refeering to you. But I am sure that you have seen a lot of that at this point.

  10. Steven L. Taylor Says:

    Yes, I have.

    However, just to be clear: to me one’s position on Chavez, oligarchs, Bolivarians or whatever are irrelevant to determining the legality or definition of what happened on Sunday.

  11. Frank J. Says:

    Wow. A few weeks ago none of you would have pointed out where “Honduras” was in a map. Now, “through years of studying” all of you are “experts” in the matter.
    Let me point out that, in between all your “blah, blah, blah” a question rises: Where is the EVIDENCE???
    Has anyone of you gone to that country to find out the “real” truth? Has anyone of you flown there to find the evidence? Because there is more than enough evidence not only to remove Manuel Zelaya out of “the throne.” Whoever brought the news to you can’t even cover half the facts.

    I would advise you to go there and get the facts.

    Did you know that not one of the powers in that country where in favor of the so called referendum? Did you know that even the people of Honduras were against that?, and I’m talking about the real people of Honduras, not a few frustrated ones.

    This was a time bomb that was about to explode, and it was going to explode that Sunday. What would you do if you know you have a bomb in your hands and it’s about to explode?

    I’m not going to tell you the facts, and I will not give you the evidence. From what I read, I feel that you don’t even speak Spanish (even when you now are an expert in the Constitutions of Latin America). If you don’t speak Spanish, get someone who can interpret for you and spend some money down there, and bring us the facts, and the evidence. I’m pretty sure you will bring a different point of view, and not your “I’m with so and so even when I don’t like them.”

    Get the facts, and bring us something that is pure (remember the days of English 101 and 102, real arguments, baby!!).

  12. Frank J. Says:

    Let this sentence be read, “Did you know that not one of the powers in that country were in favor of the so called referendum? Did you know that even the people of Honduras were against that?, and I’m talking about the real people of Honduras, not a few frustrated ones.”
    A typo (“where” instead of “were”).

  13. Steven L. Taylor Says:

    Frank,

    Welcome to the discussion, but I would think you ought to familiarize yourself with what has been said and why before making sweeping statements about what is, or is not, known and by whom.

    And I assure you, I could have found Honduras on a map last week (and the week before that, and the week before that, and so forth).

  14. Jack Okie Says:

    Steven:

    My understanding is that only the Honduran Congress can call for a referendum. Also, please note that Zelaya defied an order by the Honduran Supreme Court not to pursue the referendum (regardless of its content), defied an order by the Honduran Supreme Court to reinstate the head of the Armed Forces, whom he fired, and also led a mob to seize the ballots (which were printed in Venezuela?!) from the Air Force. If the Congress and Supreme Court agree that Zeyala forfeited his office, do they not have the sovereignty to say so? They are the legitimate arbiters of Honduran law, are they not?

    I think Obama overstepped the law by interfering with settled bankruptcy law in the GM and Chrysler bankruptcies, but our Supreme Court declined to so rule. Should I and others who believe Obama’s actions were illegial bring in the OAS?

  15. Steven L. Taylor Says:

    Jack,

    I have written quite a bit on all of that (at least the part in the first paragraph). I suppose the most simple answer I can provide is: whatever Zelaya does not excuse what was done to him, acts that member of the Honduran military themselves are now calling illegal.

    And there is a rather substantial difference between armed removal and exile of an elected president and a specific domestic policy choice (started under Bush, I would note). However, you are free to petition the OAS if you like ;)

  16. Jack Okie Says:

    Steven, I have followed your links and re-read this post. If there is a link to the member of the Honduran military calling their action illegal, I missed it. If there is not yet a link, will you please post it?

    My position is that neither you nor I have sworn an oath to uphold the Honduran constitution, but the Congress, Supreme Court and Honduran officer corps have. When the dust settles, those who have the responsibility, whether its “American Idol”, a major league baseball umpire, or the U.S. or Honduran Supreme Court, are the ones who must make the call. Remember that the clause in the Honduran constitution about anyone advocating for changing the unchangeable parts, such as the presidents term limits, is self-invoking. In other words, if the president advocates changing that part of the constitution, he has automatically removed himself from office. And who gets to decide what he did or did not say, or did or did not mean? The Supreme Court. They’re the ones on the spot, just like the SCOTUS, and right or wrong, it’s their responsibility to decide. So no, I don’t think it was a “coup”, any more than SCOTUS vacating the Florida Supreme Court’s ruling was a “coup”. YMMV.

  17. Steven L. Taylor Says:

    Here’s the link: click.

    And I have written far more than just this post. Just go to main page and scroll down or search on “Honduras”. I suspect I have written over a dozen, which include looking at various constitutional provisions.

  18. Jack Okie Says:

    Thanks for the link. I’ll check out your other Honduras posts. Do you know if there is (yet) an authoritative English translation of the Honduran constitution.

  19. Steven L. Taylor Says:

    None that I am aware of. I have been using the Spanish version at Georgetown’s Political Database of the Americas.

  20. doug Says:

    As usual, an interesting post with plenty of food for thought.

    What gives me pause about this situation is that both the legislative and judicial branches of government supported the arrest, if not the exile, of Zelaya.

    His own party controls congress. His former vice president will be the party’s candidate in the November elections, and may very well win. In other words, this wasn’t an ideological shift in power, a la almost every Latin American coup/revolution I can think of.

    So, let’s say that next week the Honduran supreme court officially rules that the exile was constitutional and legal. What then? Does the OAS overrule them? Or if the supreme court rules that Zelaya was illegally exiled and should be allowed to return to the country, as a citizen not as president, and tried for his “crimes”…what does the US or OAS do? Demand Zelaya be reinstated as president before being tried? Should the US claim that we are the final arbiters of Honduran constitutional disputes, not their supreme court? I was reading in La Nación (from Argentina) that Insulza, secretary general of the OAS, met with Honduran supreme court and they basically told him to pound sand.

    Pragmatically speaking, at what point do we step back, let Micheletti serve as acting president (from same party as Zelaya, although not best of friends), make sure that international observers are allowed in November, and let elections run their course in four months?

    I’m not sure. I’d be interested in your take, Steven. How far should the US/OAS push if we’re getting push-back from the other institutions inside Honduras? Are there analogous situations from the past that we can look back to for guidance?

    And a quick thought/observation:

    As for interpreting the Honduran constitution, from both sides of this debate…seriously? Give the US constitution to a Honduran lawyer and ask them to find a right to an abortion, a right to privacy, or where Miranda rights come from. Good luck with that. Unless they’ve studied US constitutional law I doubt they’d be able to. Perhaps I would lose money, but I’d wager that most of us, however well we speak Spanish or how long we’ve studied Latin America, are wasting our time rendering opinions as to what article XYZ means.

    Maybe someone could provide link(s) where Honduran lawyers are arguing about these very issues?

  21. Steven L. Taylor Says:

    At the end of the day, neither the OAS nor the US (or anyone else) will be able to do much in terms of ruling on anything. They can denounce and they can also cut off aid, but beyond that: nothing.

  22. Noel Maurer Says:

    Hi again, Steven! Here’s the thing. The evidence seems pretty clear by now. Everybody is correct! Zelaya broke the law by calling a referendum on a constitutional convention. The military then broke the law when it shoved the President into an airplane and shipped him off.

    There’s still lots of room to argue that the Supreme Court was stupid to order his arrest, or, conversely, that the military prevented violence by exiling him. (You read my blog, so you know my position, and yes, I’ve changed my mind.).

    But that deposing Zelaya was legal and that exiling him was most certainly not are not things that we should still be debating at this point.

    Happy Fourth!

  23. Noel Maurer Says:

    Jack@18: I’ve translated a couple relevant articles over on my blog. I agree with Steven that Georgetown has the best Spanish translation, but the Honduran congress has a great legislative history of every amendment, plus the reasoning behind ‘em.

    I’d link, but this coming from an iPhone in Miami listening to my relatives discuss health care reform and the proper way to cultivate cannabis plants. Don’t ask. The link should be somewhere on my blog.

    Once again, Happy Fourth! The explosions are already starting down here.

  24. Noel Maurer Says:

    Spanish “version,” not translation. Caray.

  25. Steven L. Taylor Says:

    Noel,

    I concur: there is plenty of blame to go around. I would argue, however, that of the wrongs on the table, the coup was the worst of the grievances. It certainly ramped up the crisis to stratospheric levels!

    Happy 4th to you as well and good luck with the fam!

    S

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

    [...] Even if it is true that Zelaya contravened Article 239 of the constitution and that meant he should have been removed from office, the fact that summary judgment, arrest and exile were employed in lieu of transparent due process made this a coup. Indeed, as I (and others) have noted, it is legitimately debatable that what Zelaya was attempted did, in fact, violate article 239 (see here). [...]


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