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The Collective
Friday, July 3, 2009
By Steven L. Taylor

Via the Miami Herald: Top Honduran military lawyer: We broke the law

The military officers who rushed deposed Honduran President Manuel Zelaya out of the country Sunday committed a crime but will be exonerated for saving the country from mob violence, the army’s top lawyer said.

In an interview with The Miami Herald and El Salvador’s elfaro.net, army attorney Col. Herberth Bayardo Inestroza acknowledged that top military brass made the call to forcibly remove Zelaya — and they circumvented laws when they did it.

It was the first time any participant in Sunday’s overthrow admitted committing an offense and the first time a Honduran authority revealed who made the decision that has been denounced worldwide.

”We know there was a crime there,” said Inestroza, the top legal advisor for the Honduran armed forces. “In the moment that we took him out of the country, in the way that he was taken out, there is a crime. Because of the circumstances of the moment this crime occurred, there is going to be a justification and cause for acquittal that will protect us.”

Inestroza goes on to defend the exile as a means of avoiding street violence that he argues would have taken place had they simply imprisoned Zelaya.

I have yet to be able to find an actual copy of the order that was issued to oust Zelaya, so it is impossible to know if the order instructed arrest and detention or exile or what.

Those with knowledge of the region will recognize the ghosts of the Cold War which haunt the following statements:

Inestroza acknowledged that after 34 years in the military, he and many other longtime soldiers found Zelaya’s allegiance to Chávez difficult to stomach. Although he calls Zelaya a ”leftist of lies” for his bourgeoisie upbringing, he admits he’d have a hard time taking orders from a leftist.

Memories of the 1980s fight against guerrilla insurgents are still fresh in Honduras.

”We fought the subversive movements here and we were the only country that did not have a fratricidal war like the others,” he said. “It would be difficult for us, with our training, to have a relationship with a leftist government. That’s impossible. I personally would have retired, because my thinking, my principles, would not have allowed me to participate in that.”

All of this rather clearly emphasizes the “military” part of “military coup” (click and scroll down).

h/t: The Latin Americanist

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16 Responses to “Honduran Military Lawyer Acknowledges Illegality in Zelaya Removal”

  1. Vladimir Says:

    Ok.
    But it doesn´t follow that it was ilegal to depose Zelaya nor can this be a base for bringing him back to power. All that this prove is that the military in charge commited a crime by exiling him. And is up for Hondurean courts to decide what is going to happen to him.

    I repeat my point: only the SCJ can rule wheter article 239 was breached or not. And only the Congress can impeach the SCJ.

  2. Steven L. Taylor Says:

    I answered your 239 question in the other thread.

    BTW-it is not clear as to what actions are being called illegal in the above interview. It can be read to deal not just with the exile, but with the ouster in general.

    And regardless, the lack of transparent due process continues to be a key problem here.

  3. Vladimir Says:

    What would be the apropriate forum to discuss wheter the article 239 was breached? Where a complain about due process should be filed?

    The UN? The OAS? I don´t think so…

    I keep thinking about how Americans would react if other countries started to try to tell to their SCJ how to read their constitution (against a unanymous decision of both the SCJ and the Congress). But we are talking about tiny litle Honduras here, so who cares?

    Another point, in the bad old days of the cold war, the military would not be admiting any crime (nor the Deputy AG would be starting inquiries). They would simply call it a revolution and be done with it.

    As to what the crime the officer was admitting, I think it is clear in the reporting:

    “In the moment that we took him out of the country, in the way that he was taken out, there is a crime”. I think that it is clear that he is talking about the exile.

  4. Steven L. Taylor Says:

    What would be the apropriate forum to discuss wheter the article 239 was breached? Where a complain about due process should be filed?

    The point is: there wasn’t one. There was only summary judgment and expulsion. I have been quite clear on this point.

  5. Vladimir Says:

    My point is: the forum is the SCJ, which has made their decision. And the forum for complaining about due process is also the SCJ. And if you think that the SCJ was out of bound, the forum would be the Congress. And if you also think that the Congress is just a bunch of rogues, you have to call for revolution. At which point you can no longer complain about breaking the constitutional order because you just want a better coup.

    Rulings coming out of the UN, Washington, Caracas and the OAS about this subjectare all ilegitimate from the point of view of the constitutinal order of Honduras.

  6. Steven L. Taylor Says:

    Yes, but Zelaya was rather pointedly denied acces to due process. That’s the whole point from my point of view.

  7. Vladimir Says:

    “All of this rather clearly emphasizes the “military” part of “military coup””.

    On the other hand, one has to recognize that this event is much too complex to be treated simply as “just another Banana Republic military coup, nothing to see here, folks” as apparently is (or was) the initial reaction of many.

    I agree that it is not obvious that it was just a defense of democracy and institutions against a power grab by an authoritarian. But, I also don´t think that the opposite is true.

    As Andrew Sullivan have said today, “can you remember a story where pundits have varied so widely on the basic facts?”

    Inteligent people are disagreeing deeply about this and there are valid points to be made on both sides.

    It is also curious the postion of the political players.

    In one hand, almost all the governments and international organizations are supporting Zelaya.

    In the other, we have yet to see one relevant organization of civil society in Honduras to come in his defense (And I don´t think that this happening only from repression or blocked information. The situation in Iran has showed to us how dificult it is to block information these days, even for a state that has a much stronger apparatus of repression)

    This is remarkable. As you surely know, professor, even in the bloodiest Latam coups of the past there were always voices from organized society denouncing it from within. Sometimes Unions, sometimes the church, sometimes the lawyers association, the local press, political parties or even segments from the government itself. Support for Zelaya in organized society appears to be very thin. And you have to admit, professor, that the pictures and videos that we have from pro-Zelaya demonstrations are rather unimpressive (of course this fact should be taken with a good grain of salt when trying to establish what is the “will of the people”).

    This, of course, is not a base to ascertain the legality of his deposition. But it is something that should be taken in consideration when trying to see how to move forward. As I said before, for all I have seen until now, I don´t think that Zelaya has enough political support to be President anymore. The approach taken by the international communnity, of demanding his return to power, looks very dangerous to me.

    Have a nice weekend, professor.

  8. Steven L. Taylor Says:

    The approach taken by the international communnity, of demanding his return to power, looks very dangerous to me.

    It seems to me to be a positive thing for their to be basically unanimous agreement that extra-legal moves shouldn’t be used to oust an elected president. It beats the old way of deciding whether a coup was good or not based on ideological predilections.

    Have a nice weekend, professor.

    You as well.

  9. Gabriel Says:

    Is it wrong if we bring some of the debate from weeksnotice over here?

    It’s become clear that whatever this is, it’s not a military coup. The military had orders from the SC and while they made a mistake by kicking him out, given Zelaya’s previous use of mob rule (to get the ballots from the military base) and total disregard for separation of powers, what was the real alternative?

    I also agree with Vladimir, what is Zelaya going to return to? He does not have the support from any institution and the Attorney General wants to try him for his crimes. Even if they managed to get him back as president he’d last 2 minutes, unless of course he tried to get rid of the rest of the government.

  10. Steven L. Taylor Says:

    Gabriel,

    You are certainly welcome to bring the debate over here.

    Still, I disagree with your contention: the military forcibly removed him from the country with the idea being he would not return to office. That about as “military coup” as you can get.

  11. Gabriel Says:

    I’m not an academic, so I will defer to you on the technical definition, but what kind of a military coup is it when the military follow the judiciary’s orders, don’t control the executive, and readily admit they may have broken the law and are being investigated for that?

    Or to put it another way, if the military had followed the SC’s orders and simply arrested Zelaya, but not kicked him out no one would be talking of a military coup. It would have been a political crisis but one following the rule of law (such as it exists in Honduras). So can we really call it a coup because they sent him to Costa Rica to avoid bloodshed?

    As someone from Latam and who follows the region closely I’m not happy with the result but I can see how the military might have thought exile was the less of the available evils.

  12. Steven L. Taylor Says:

    If they had arrested and charged Zelaya in an open process with due process, we wouldn’t be talking about coup now.

  13. Gabriel Says:

    I agree.

    So what now? Can Zelaya really go back? Eeven if Micheletti agrees the SC’s rulings still stand, Congress is still against him, the Attorney General still wants him arrested.

    Are the OAS and the rest of the world going to accept if he comes back and is prosecuted?

  14. Vladimir Says:

    “If they had arrested and charged Zelaya in an open process with due process, we wouldn’t be talking about coup now”.

    I am afraid not. The only difference would be that he would be posturing as a political prisoner. Chavez would be comparing him to Nelson Mandela. It is better to deal with a Reza Palavi.

    Or, maybe, it would be even worse: we would be talking about Honduras civil war.

    One of the problems in this situation is that no one knows what the “due process” would be. Can you tell me? What is the meaning of “open process” in their legislation? How many hearings would be ok for you?

    As far as I have read, the SCJ, the lawyer association and the AG are fine with what happened. And yet, everybody appears to believe that they are all in the pockets of Mr. Micheleti.

    Would they be required to sidestep the weirdness of their legislation - article 239 is quite strange in my opinion - just to give the world something more similar to what would have been due process in most countries?

    If Congress have tried to impeach him, we would be talking about the lack of legislation for that.

  15. Vladimir Says:

    Legal technicalities apart, my main concern is about the political situation. I´m afraid that insisting in bringing him back or imposing sanctions would be terrible for the country. Give them 1 or 2 years without US military aid and with economic sanctions (amidst a global economic contraction) and suddenly the prospect of a invasion by Chavez(or a guerilla funded by him) doesn’t look so unlikely. Not to mention the humanitarian cost and the resentment that this will cause in Hondureans.
    I have lived through Fernando Collor’s impeachment process and let me tell you: there were actions highly questionable from a legal point of view. Secret documents were leaked on a daily basis. He resigned before the end of the process, so he could not have lost his political rights for 8 years. That should have ended it, but Congress refused to accept his resignation. People were arrested for refusing to produce evidence against themselves (capital sin under Brazilian processual law) or for lying under oath (a plaintiff cannot be charged with perjury in Brazil).
    The only real proof, the one that undoubtedly linked Collor to a vast corruption scheme, was a economic sized car, a Fiat Elba. Can you believe that? An elected President, the first one after 25 years, was impeached because of that.
    Fortunately for Brazil, the OAS was not so zealous at that time: even Cuba was in there. Oh, wait…that´s happening now. I guess things are changing in Cuba.
    But the real smoking gun was not the Fiat Elba, it was the people on the street. The almost unanimous perception among political analysts (including the taxi drivers) was that the alternative would be institutional chaos.
    And in spite of all the glaring illegalities, the impeachment process end up being very healthy for Brazilian institutions.
    One of the conclusions that I got from that process was that the art of kicking presidential butts is political, much more than legal.

    Zelaya is already in a much better situation then he deserves. Why should the world give him even more leverage?

  16. gurureoul Says:

    The wording of Article 239 of the Honduran constitution states the condition that if you directly or INDIRECTLY try to extend the term of the executive power you IMMEDIATELY (without anything coming before - nothing mediating, such as what we think of as “due process”) lose claim to the executive power for at least 10 years. The Honduran Supreme Court and 96% of the Honduran Congress (a vote of 123 against 5) claims that he violated this article of THEIR CONSTITUTION. Not because he sought the public referendum - but because he ignored the rest of his government and sought to utilize the military to directly contradict the court’s ruling (and when that didn’t work fired the general in charge of the Honduran military so as to continue with his illegal activity). At this point we’re beyond indirectly violating Article 239 and are squarely in DIRECTLY violating it - no matter how you read it.

    Are we arguing now whether IMMEDIATE removal of executive power means that you are or are not exiled? And what does that really matter as to whether or not he should be re-instated as the executive power of his nation? In Honduras he has NO EXECUTIVE POWER anymore. He ceded that power when he tried to force a public referendum to change the constitution.

    Merely because it was a military action, people want to say that it was “wrong.” And that makes me question what happened to the Sovereignty of other nations. At the most, we can say “put the man in jail instead of exiling him.” Anything beyond that is circumventing Honduran constitution and interfering where we have no right to interfere.


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