Micheletti's Losing Battle for Honduras' Diplomatic Corps and its International Legitimacy
August 20, 2009
by
Daniel Altschuler
August 20, 2009
Since the Honduran military seized and expelled President Manuel Zelaya, the country’s de facto government has been losing the battle for international legitimacy. De facto President Roberto Micheletti and his allies have tried to convince the world that
In the last few weeks, both the
The current Honduran imbroglio presented ambassadors with the dilemma of whether to support the deposed president or the newly-installed leader, weighing political allegiances against career aspirations. Ambassadors, dependent on the politicians who appoint or remove them, lack domestic constituencies and live at the mercy of elected politicians at home.
With this coup, Honduran ambassadors suddenly faced a high-stakes decision. Unlike old-style coups—where the military simply takes power and replaces diplomats and other democratic representatives—Honduran ambassadors were not immediately dismissed. Instead, the Micheletti government wanted to maintain a semblance of continuity, giving ambassadors a significant degree of autonomy but forcing them to choose which master to follow.
Adding to the complexity of the situation, Micheletti, like President Zelaya, is a member of the Liberal Party. This party identification generated greater ambiguity in diplomats’ allegiances and enabled the new government to gain support from certain Zelaya appointees. Zelaya also had alienated most of
Ambassadors have faced a tough decision, but three factors have made supporting the Micheletti-run government riskier than supporting President Zelaya. First, the international community has resoundingly condemned the coup. Outside
For example, when the sitting Honduran ambassador to the
Domestic political factors are also having an impact. For one thing, even with international condemnation, a diplomat with longer-term plans might base the decision of which leader to support on who would most likely be
Finally, given Zelaya’s dismal approval ratings—which were below 30 percent before the coup—and the unprecedented turmoil with the Liberal Party still at the helm, the National Party should have a relatively easy time winning the upcoming elections. Recent polls show the National Party candidate, Porfirio Lobo Sosa, in the lead by six percentage points. While the election results are not a foregone conclusion, this means that Liberal Party ambassadors will likely lose their posts at year’s end, irrespective of whom they support. This reinforces the position of pre-coup Honduran diplomats who would have had little to gain by supporting Micheletti. By remaining with Zelaya, they remain on the internationally-sanctioned side of the right camp without taking on much political risk.
These factors—in addition to certain personal loyalties—likely explain the firmness with which most Honduran diplomats have stuck to a pro-Zelaya stance. After losing the initial discursive battle over whether what transpired was a coup or a “constitutional succession,” the Micheletti government had neither carrots nor sticks to ensure Honduran ambassadors’ support. And Micheletti’s inability to marshal ambassadors to his side has further weakened the prospects of shifting the terms of the international debate.
Despite this weakness, Micheletti’s government still controls embassies’ purse strings. Since the coup, embassies like the one in the
In this position of relative weakness, Micheletti appears to have resorted to a stalling strategy—biding his time until the upcoming elections—while trying to muster lobbying support within the
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honduran political situation
The Honduran political situation is the result of the international communities refusal to accept that Zelaya was replaced in a legal manner. The courts and the congress when confronted with the illegalities and excesses to the Zelaya regime, ordered the military to send Zelaya out of the country, and next in line was Mr Micheletti. He accepted a difficult situation in that he is charged to maintain an interim government until elections. The world sees Honduras as a rogue nation, but that is far from the truth. I recall in a documentary about Germany and the Nuremberg Trials the world condemning the average German citizen for not standing up to an immoral an illegal government. Honduras faced with a similar situation has taken action and is now sanctioned for this action.
It would seem that there are strong worldwide concerns involved that have vested interests in maintaining the status quo.
Perhaps in your journalistic capacity you might investigate the reasons for this?
marcia lardizabal
Ir's NOT a "military" coup and Micheletti government is DE JURE
"Daniel Altschuler is a Rhodes Scholar and doctoral candidate in politics at the University of Oxford. His research focuses on civic and political participation in Honduras and Guatemala."
Mr. Altschuler, your degrees in politics need to be complemented by a degree in Constitutional law; you have slandered Honduras and embarrassed yourself by misrepresenting lawful domestic constitutional events as a "military" coup.
1) The military was NEVER in power. The presidency was handed over to the president of the national congress as the constitution dictates.
2) the military acted under an order issued by the supreme court to ARREST Mr. Zelaya and detain him pending trial, proceedings that were ongoing. The military arrested Zelaya but exceeded the authority on the face of the Supreme Court warrant by unlawfully deporting him, as is currently under investigation in Honduras.
3) The Supreme Court ordered the removal of the president as the constitution dictates, because Mr. Zelaya was attempting to change an article in the constitution that the constitution explicitly says is non-amendable and says as well that whosoever attempts to change it must be removed from power immediately.
The argument that Zelaya was planning to use a statutory referendum does not alter the fact that in Constitutional law, statutes are always read SUBJECT TO the Constitution, and statutory provisions in conflict with entrenched constitutional provisions are void to the extent of the conflict. Any attempt by Mr. Zelaya by any means, to controver the Honduran Constitution, including by a statutory back-door, would be colourable as an attempt to do indirectly what it is forbidden to do directly.
4) The Honduran constitution calls for the immediate removal (which was done). The decision to remove and the manner of the removal are discussed in an 11-page REPORT FOR CONGRESS by the Law Library of Congress, whose conclusions flatly refute the "political" position adopted on Honduras by the Obama government. That REPORT complements my own position posted 20 July 2009:
http://honduras-not-a-military-coup.blogspot.com/
5) All other Honduran institutions are in place: The Courts, Congress, Ambassadors, etc... are all intact. However, this in no way refers to the counterfeit "Honduran government" web site that was independently produced by Mr. Zelaya in exile and placed online by a German hosting firm, nor does it include Mr. Reina, who is Mr. Zelaya's former personal secretary and has been parading around under the assumed identity of an Ambassador of Honduras "appointed" by Mr. Zelaya post-exile. Neither the web site nor Mr. Reina has any constitutional standing or legal validity vis-a-vis the DE JURE Honduran government under Mr. Micheletti.
6) There were no assassinations or deaths at the time of the arrest of Mr. Zelaya, or afterwards.
7) Protesters for or against the new government are allowed to assemble PEACEFULLY (notice the emphasis on peacefully). Violence is not allowed, in keeping with the Rule of Law (more on that at my HONDURAS BLOG (ABOVE) and those who practice violence or vandalism are dealt with by law.
8) In a true DEMOCRACY, democratic rights carry with them the obligation of the majority to respect its own decisions and to the same extent a minority is obliged to accept and respect decisions of the majority. In other words, a decision reached by due process must be recognized and observed as such by all concerned; if it involves action, of whatever nature, that action must be taken and criminal acts or other violence as a means of opposition are proscribed.
An aggrieved minority, running through the streets and rioting, shrieking about the overthrow of "democracy" is nothing short of a caricature, the personification of double-think in action, for it is they who are overthrowing Honduran democracy.
In light of the Zelaya debacle, the "democratic deficit" is evident in the REFUSAL of the minority to abide by a decision taken by the majority after Constitutional due process, lawfully enforced by the Supreme Court, who by a long tradition of the Rule of Law are obliged to control the Executive.
9) Mr. Micheletti doesn't have a "losing battle," he is merely faced with international rogues who couldn't give a damn about the law, specifically Rule of Law, or what happens to the Honduran people who are paying the price for global treachery, as long as the world government gang gets their political fix in.
10) Here is a link to the REPORT FOR CONGRESS; and
http://media.sfexaminer.com/documents/2009-002965HNRPT.pdf
11) Below is the full text of the August 2009 REPORT FOR CONGRESS prepared by the Law Library of Congress, refuting the "political" position of the Obama government, which they indeed share with the UN and the OAS and their respective member states, who are all WRONG on the point: this is NOT a "military" coup.
However, their agenda behind being so obstinately WRONG on the point is another issue, and calls for an examination of Mr. Zelaya's support for ALBA, a version of CAFTA, intended to place Central America in an EU-style economic, legal and political situation to facilitate Western Hemisphericc Union on the way to one-world government. As a Rhodes Scholar, Mr. Altschuler, you would know that the scholarship under whose auspices you were educated is awarded to specific individuals who are deemed ideal candiddates for the purpose of advancing the agenda of a world government.
To that end, South American Union (UNASUR) was signed on 23 May 2008; North American Union is scheduled for 2010 though most Canadians and many Americans still haven't heard of it. Continental union, then hemispheric union, are steps on the way.
* * *
REPORT FOR CONGRESS
August 2009
The Law Library of Congress
Directorate of Legal Research
LL File No. 2009-002965
HONDURAS:
CONSTITUTIONAL LAW ISSUES
This report discusses the legal basis under the Honduran Constitution for
President José Manuel Zelaya Rosales’s removal from office.
Directorate of Legal Research for Foreign, Comparative, and International Law
James Madison Memorial Building; 101 Independence Avenue, S.E.; Room LM 240;
Washington, DC 20540-3200
Reception: 7-5065 – FAX: 1 (866) 550-0442
www.loc.gov/law/congress
2009-002965
LAW LIBRARY OF CONGRESS
HONDURAS
CONSTITUTIONAL LAW ISSUES
Executive Summary
The Supreme Court of Honduras has constitutional and statutory authority to hear cases against the President of the Republic and many other high officers of the State, to adjudicate and enforce judgments, and to request the assistance of the public forces to enforce its rulings. The Constitution no longer authorizes impeachment, but gives Congress the power to disapprove of the conduct of the President, to conduct special investigations on issues of national interest, and to interpret the Constitution. In the case against President Zelaya, the National Congress interpreted the power to disapprove of the conduct of the President to encompass the power to remove him from office, based on the results of a special, extensive investigation. The Constitution prohibits the expatriation of Honduran citizens.
I. What are the provisions, if any, in the Honduran Constitution for their Judicial ranch and the Legislative Branch (National Congress) to remove an elected President?
The concept of the political procedure known as impeachment, previously contained in Article 205, Section 15 of the Honduran Constitution, was repealed by Decree 175-2003.1 The provision, before being repealed, stated that the National Congress had the power to declare whether cause existed to file charges against the President and other high officers of the three
branches of government. It did not, however, provide the procedure to follow in such cases.2
The same Decree also repealed Article 200 of the Constitution, which granted general immunity to the Deputies of the National Congress.3 Therefore, currently, no public officer has immunity
in Honduras.
Regular judicial proceedings against the President may be heard by the Supreme Court based on Article 313, Section 2 of the Constitution, which grants it the power to hear cases
against the highest officers of the State and the Deputies.4
- - -
No. 105-2004 del 27 de Julio de 2004, LA GACETA, Sept. 11, 2004.
2003, del 23 de Septiembre de 2003, LA GACETA, Dec. 1, 2003.
1 Decreto No. 175-2003 del 28 de Octubre del 2003 art. 1, LA GACETA, Dec. 19, 2003, ratified by Decreto
2 Decreto No. 412-2002 del 13 de Noviembre de 2002, LA GACETA, Feb. 20, 2003, ratified by Decreto 154-
3 Decreto No. 175-2003 del 28 de Octubre del 2003 art. 1.
4 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS, as amended, art. 313, § 2. The amended Constitution is available online, at http://www.gobernacion.gob.hn/descargas/leyes / (last visited Aug. 7, 2009). The Constitution was originally published officially in LA GACETA, Jan. 20, 1982.
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -2
Until 2003, Article 313, Section 2 stated that the Supreme Court had the power to “hear cases against the highest officers of the State and the Deputies when the National Congress had
declared that cause existed to level charges .”5 When this impeachment provision of the Constitution was repealed, Article 313, Section 2 was also amended by the removal of the
last part of the provision referring to the procedure of the National Congress.6 In addition, Article 304 of the Constitution grants the courts the authority to apply laws to specific cases and to adjudicate and enforce judgments.7
II. Did the Honduran Supreme Court have the authority under the Honduran Constitution to request that the military remove the President because the National Congress, the Supreme Court,
the Human Rights Ombudsman, and the Attorney General found an action of the President unconstitutional?
This question raises the following issues under the laws of Honduras:
A. Whether the Supreme Court has the authority to hear a case (and consequently issue an arrest warrant) against a sitting President; and B. Whether the Supreme Court has the authority to order the public forces (fuerza pública) to carry out an arrest warrant against a sitting President.
A. Authority of the Supreme Court to hear a case (and consequently issue an arrest warrant) against a sitting President
Article 313, Section 2 of the Constitution grants the Supreme Court of Justice the power to hear cases against the highest officers of the State and the Deputies.8 In harmony with this
provision, the Code of Criminal Procedure provides that cases against these officers must be heard by the Supreme Court, following the procedures established in that Code.9 According to
available sources, this procedure was applied in the case filed by the Chief Prosecutor (Fiscal General de la República) against President José Manuel Zelaya Rosales. On June 26, 2009, the Supreme Court, upon the Chief Prosecutor’s complaint, accepted the case and unanimously voted to appoint one of its Justices to hear the complaint in the preparatory and intermediate phases. The appointed Justice carried out the request to issue an arrest and raid warrant.10
The Chief Prosecutor’s complaint before the Supreme Court was based on an administrative procedure filed before the Court of Administrative Litigation (Juzgado de Letras
5 Decree 38-2001 of Apr. 16, 2001, LA GACETA, May 29, 2001, at 2 (translated by the author).
6 Decreto No. 175-2003 del 28 de Octubre del 2003, supra note 1, art. 2.
7 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 304.
8 Id. art. 313, § 2.
9 Código Procesal Penal, arts. 414-417 (Editora Casablanca, Tegucigalpa, 2006).
10 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available at the Judiciary website,
http://www.poderjudicial.gob.hn (last visited July 8, 2009).
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -3
de lo Contencioso Administrativo), which was presented to the Supreme Court to support the complaint. This documentation may be summarized as follows:
On March 23, 2009, President Zelaya issued Executive Decree PCM-05 2009 ordering a public consultation (Consulta Popular, or referendum) throughout the national territory so that
the Honduran people could express their opinion as to whether, during the 2009 general elections, a fourth ballot box should be installed at the polling stations to decide whether to
convene a National Constituent Assembly for the purpose of drafting a new political Constitution. The same Decree gave a mandate to the National Institute of Statistics (INE) to
take charge of the survey.11
On May 8, 2009, the Chief Prosecutor, acting as guarantor of the Constitution, filed a law suit before the Court of Administrative Litigation requesting that the Court declare the illegality and nullity of the administrative act carried out by the Executive Branch under the Executive Decree.12
On May 26, President Zelaya issued another Executive Decree PCM-19-2009, rescinding the previous Decree and ordering a national poll (under the new title of Encuesta de Opinión
Pública) on the same issue to be conducted on June 28, 2009.13 The next day, the Court of Administrative Litigation issued a ruling ordering the President to suspend the Public Consultation and all acts in its support.14
On May 29, the Court of Administrative Litigation clarified its ruling, stating that: suspension of the consultation ordered on March 23, 2009, includes any other administrative act, whether general or particular, which has been issued or might be issued, whether explicitly or implicitly, by publication or lack thereof in the Official Gazette, which might be conducive to the same administrative act which has been suspended, as any other procedural consultation or question which may be designed to avoid obeying this ruling .15
The same day, May 29, President Zelaya informed the Honduran people through the Secretary of Defense, that he had issued Executive Accord No. 027-2009, by which he ordered that a national public opinion poll be carried out by the National Institute of Statistics. The President also ordered the armed forces to lend logistical and all other necessary support to the
National Institute of Statistics.16
11 Expediente Judicial, Requerimiento Fiscal, Documentación Soporte – Punto No. 8, at 2, available at the Judiciary website, http://www.poderjudicial.gob.hn/ejes/Comunicados / (last visited Aug. 5, 2009).
12 Id. at 2.
13 Id. at 3.
14 Id.
15 Id.
16 Id. at 3-4.
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -4
On June 3, the Court of Administrative Litigation issued the first judicial communication, through the State Secretary for the Presidency, asking the President to abide by the Court’s
ruling.17
On June 16, the Court of Appeals for Administrative Disputes unanimously ruled inadmissible the appeal filed by President Zelaya, who was represented by a private attorney, against the May 27 ruling of the Court of Administrative Litigation and the May 29 clarification.18
On June 19, the Court of Administrative Litigation issued a second judicial notification, through the State Secretary for the Presidency, to the President, requesting that he abstain from conducting any kind of public consultation that might violate the Court’s rulings of May 27 and May 29.19 On the same day, the Administrative Court issued a third judicial notification to the President, through the State Secretary for the Presidency, giving him five days to inform the court what measures he had taken in order to abide by the court ruling. No answer was received by the Court.20
On June 26, the Chief Prosecutor filed a Criminal Complaint before the Supreme Court of Justice, requesting that Zelaya be arrested under an accusation of the crimes of acting against
the established form of government, treason against the country, abuse of authority, and usurpation of functions.21 On the same day, the Supreme Court of Justice unanimously voted to
appoint one of its Justices to hear the process in its preparatory and intermediate phases; that Justice carried out the request, issuing an arrest and raid warrant.22 Two days later, on June 28, 2009, Zelaya was arrested.23
After his arrest, on June 28, the military, acting apparently beyond the terms of the arrest warrant,24 took Zelaya out of the country.25 Under the Honduran Constitution, “o Honduran
may be expatriated nor handed over to the authorities of a foreign State.”26
http://www.poderjudicial.gob.hn (last visited July 18, 2009).
Judiciary website, http://www.poderjudicial.gob.hn/ejes/Comunicados / (last visited Aug. 5, 2009).
17 Id. at 4.
18 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 2, available at the Judiciary website,
19 Expediente Judicial, Requerimiento Fiscal, Documentación Soporte – Punto No. 8, at 5, available at the
20 Id.
21 Id. at 1, 15.
22 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available at
http://www.poderjudicial.gob.hn .
23 Id. at 5.
24 Assessment by the author based on the facts and the law. The ruling of the Supreme Court consisted
only of an arrest and raid warrant. Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available
at http://www.poderjudicial.gob.hn .
25 The Crisis in Honduras, 111th Cong. 4 (July 10, 2009) (statement of the Hon. Guillermo Pérez-Cadalso before the U.S. House Committee on International Affairs, Subcommittee on the Western Hemisphere). Mr. Pérez-Cadalso, who is a former Honduran Supreme Court Justice and Secretary of Foreign Relations, testified before
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -5
B. The authority of the Supreme Court to order the public forces (fuerza pública) to carry out an arrest warrant against a sitting President Article 304 of the Constitution grants the courts the authority to apply laws to specific cases and to adjudicate and enforce judgments.27 Article 306 states that the courts may request the assistance of the public forces (fuerza pública) to obtain enforcement of their rulings.28 Under this legal authority, the Supreme Court ordered the Chief of the Joint Chiefs of Staff to implement the arrest warrant.
III. Did the Honduran National Congress properly approve Articles of Impeachment of the President as provided for by the Honduran Constitution? As stated above, the concept of the political procedure known as impeachment, previously contained in Article 205, Section 15 of the Honduran Constitution, was repealed by Decree 175-2003.29 The Constitution does not contain an express provision giving the National Congress the authority to remove a President from office. Nonetheless, the National Congress apparently used several other constitutional powers to remove President Zelaya from office.
Among them are the following:
• Article 205, Section 20 of the Constitution gives the National Congress the power to “approve or disapprove” the administrative conduct of the Executive and Judicial Branches, the National Tribunal of Elections, and many other high officers of the State;
• Article 218, Section 3 reaffirms this power by stating that the decrees issued by the National Congress in reference to the conduct of the Executive Branch cannot be vetoed by the President;
• Article 205, Section 21 authorizes the National Congress to appoint special commissions for the investigation of matters of national interest;
• Article 208, Section 5 grants power to the Permanent Commission of the National Congress to receive complaints of violations of the Constitution;
• Article 205, Section 10 grants the power to the National Congress to interpret the Constitution;
• Article 218, Section 9 reaffirms the Congressional power to interpret the Constitution by stating that Congressional resolutions issuing constitutional interpretations cannot be
vetoed by the President; and Congress as “a concerned Honduran citizen” and not as a government representative. Id. (printed copy of the statement in the collection of the author.
26 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 102.
27 Id. art. 304.
28 Id. art. 306.
29 Decreto No. 175-2003 del 28 de Octubre del 2003 art. 1, LA GACETA, Dec. 19, 2003. The provision
basically stated that Congress had the power to declare if cause existed to file charges against the President and other high officers of the three branches of government. It did not, however, provide a procedure to follow. Decreto No. 412-2002 del 13 de Noviembre de 2002, LA GACETA, Feb. 20, 2003, ratified by Decreto 154-2003, del 23 de Septiembre de 2003, LA GACETA, Dec. 1, 2003. Article 205. The following Powers are assigned to the National Congress:
<[ When lines break off, it's becuase they are footnotes continued to the bottom of the next page.>]
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -6
• Article 205, Section 12 gives the National Congress the power to receive the constitutional oath of the President and Vice-President of the Republic and to fill their vacancies where any of the officers were absolutely unable to discharge the powers and duties of the office .30
Article 242 of the Constitution, which provides the line of succession for the Presidency, and Article 205, Sections 12, 20, and 10, and Article 218, Section 9, referred to above, are
translated below due to their relevance (the order in which they appear is based on the relevance of the subject matter):
Article 242. In the temporary absence of the President of the Republic, the Vice-President shall replace him in his functions. If the absence of the President were permanent, the Vice-President shall exercise and hold Executive Power for the time that remains to complete the constitutional term. But if the Vice-President were also permanently absent, the Executive Power shall be exercised by the President of the National Congress, and, where the President of the National Congress is absent, by the President of the Supreme Court, for the time that remains to complete the constitutional term.31
Section 12: To receive the constitutional oath of the Office of President and Vice-President of the Republic declared “elect,” and the rest of the officers for whom it chooses to grant leave and to accept or reject their resignation and to fill the vacancies in the case where any of the officers were absolutely
unable to discharge the powers and duties of the office .32
Section 20: To approve or disapprove the administrative conduct of the Executive Power, the Judicial Power, the Electoral Supreme Tribunal, the Comptroller General of the Republic, the Attorney General of the Republic, the Environmental Attorney Office, the Chief Prosecutor, the Ombudsman, the National Registry of Persons, and decentralized and auxiliary institutions of the State.33
Section 10: To interpret the Constitution of the Republic in ordinary sessions in a single term, with a two-thirds vote of all its members. Articles 373 and 374 of the Constitution may not be interpreted through this procedure.34
3 & 9.
30 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 205, §§ 20, 21, 10 & 12; art. 208,
§ 5; & art. 218, §§
31 Id. art. 242 (translated by the author).
32 Id. art. 205, § 12. (translated by the author).
33 Id. art. 205, § 20.
34 Id. art. 205, § 10 (translated by the author).
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -7
Article 218. Authorization shall not be necessary, nor shall the
Executive Power be entitled to veto the following cases and resolutions:
…
Section 9: In the interpretations to the Constitution of the Republic enacted by the National Congress.35
On June 29, the National Congress, after hearing a special report prepared and submitted by a special congressional commission on Zelaya’s actions, which was based on an extensive
investigation prepared by the same commission,36 issued a decree in which many articles of the Constitution were invoked; key among them was Article 205, Section 20,37 translated above.
The Decree provided that the National Congress:
(1) Disapproved the President’s conduct of repeated violations of the Constitution and laws of the country and his disregard of the rulings and resolutions of the judicial authorities;
(2) Removed President Zelaya from the office of the Presidency; and (3) Nominated the next person in the line of succession for the presidency, according to
Article 242 of the Constitution. This person was the then- President of the National Congress, Roberto Micheletti, since the Vice-President had resigned from office six months earlier.38
The question of which Constitutional provision gives the National Congress the power to remove the President still remains. As noted above, Article 242 does not grant the National
Congress the power to remove the President, but does state the line of succession.39 Although Article 205, Section 12 was not invoked in the Decree, that Section gives intrinsic power to the
National Congress and must be analyzed. Article 205, Section 12 does not grant Congress the power to remove the President, but only to receive the Constitutional oath of the President and
other high officers and to fill vacancies in the case that any of the officers were absolutely unable to discharge the powers and duties of the falta absoluta.
The only other article germane to this issue is Article 205, Section 20, giving the National Congress the power to approve or disapprove of the administrative conduct of the Executive
Power. The reading of Article 205, Section 20 raises the issue of the meaning and scope of the
35 Id. art. 218, § 9 (translated by the author).
36 The report was read by Ricardo Rodríguez, a deputy of the Liberal Party. Congreso Destituye a Manuel Zelaya, LA TRIBUNA, June 29, 2009, available at http://www.latribuna.hn/web2.0/?p=14265&print=1 .
37 There is an apparent typographical error in the Decree in which art. 220, § 20 was cited. However, art. 220 has no subsections, and in addition, it is not relevant to the issues at hand. Therefore, it is logical to consider that the reference was in regard to art. 205, § 20, which is applicable.
38 An official copy of the text of the Decree is not available to date. An unofficial version was published in Congreso Destituye a Manuel Zelaya, supra note 36. See also Statement of the Hon. Guillermo Pérez-Cadalso, supra note 25, at 4.
39 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 242, supra note 4.
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -8
word “disapprove,” whether a congressional disapproval of the President of the Republic can be limited to censure or may also encompass the possibility of removal from office. An analysis of
the facts of the case and the aforementioned constitutional provisions leads one to the conclusion that the National Congress made use of its constitutional prerogative to interpret the Constitution and interpreted the word “disapprove” to include also the removal from office.40
A systematic reading of the different constitutional provisions dealing with the right of Congress to interpret the Constitution (such as Article 205, Section 10 and Article 218, Section 9) also indicates that the Honduran National Congress has the power to interpret the Constitution with general effect. This task is performed through interpretative laws, decrees, or other acts.41 One may conclude that the National Congress implicitly exercised its power of constitutional
interpretation in the case of Zelaya when it decided that its power to “disapprove” the President’s actions encompassed the power to remove him.
The fact that the National Congress did not cite all of the constitutional provisions granting it intrinsic powers,42 such as those mentioned in Articles 205, Sections 10, 12, and 21,
does not imply that it surrendered or relinquished its constitutional powers. In other words, it must be assumed that when the National Congress issued its Decree removing President Zelaya from office, it used its powers as needed.
Although the National Congress unanimously approved an alleged letter of resignation by Zelaya, dated four days before his arrest, no mention of this letter was made in the Decree issued
by Congress removing the President from office.43
IV. Did the Supreme Court follow up by holding a proper, constitutionally mandated trial of the President?
As stated in the answer to question II(a), above, the Supreme Court, based on its constitutional powers, heard the case against Zelaya and applied the appropriate procedure mandated by the Code of Criminal Procedure.
40 This line of analysis was confirmed in an August 3, 2009, telephone interview with Mr. Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations.
41 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS arts. 205, § 10 & 218, § 9.
42 It is well recognized that the branches of government exercise their powers according to their constitutional mandate. Therefore, one of the branches may not exercise powers not expressly conferred by the Constitution. Likewise, a branch of government may neither delegate its constitutionally-mandated powers to the other branches of government, nor refrain from exercising them in the absence of an express constitutional provision.
43 Congreso Destituye a Manuel Zelaya, supra note 36. It is believed by some in Honduras that Zelaya signed the letter on June 24, before his arrest, to make use of it after the referendum, when presumably the National Constituent Assembly was going to be initiated, on June 29, because Zelaya anticipated that he would be elected President of the Assembly. It also generally understood that that the letter was not included in the Congressional Decree because Zelaya denied writing the letter. Telephone Interview with Mr. Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations (Aug. 3, 2009).
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Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -9
The Chief Prosecutor filed a complaint (requerimiento fiscal) against President Zelaya before the Supreme Court on June 26, 2009. The complaint: (1) accused the President of acting
against the established form of government, treason against the country, abuse of authority, and usurpation of functions; (2) requested that the Court order the arrest of the President; (3) requested that the Court notify the President of the facts alleged against him; (4) requested that the President’s testimony be heard; and (5) requested that the President be suspended from office.44
The Supreme Court, based on its constitutional45 and statutory46 powers, appointed one of its Justices to hear the process in the preparatory and intermediate stages. Following the procedure, the Justice admitted the complaint and issued an arrest and raid warrant.47 The process at the Supreme Court did not continue due to the events that occurred after Zelaya’s
arrest.
In light of the fact that Zelaya was formally removed from office on June 28 by the Congressional Decree described above, on June 29, the Supreme Court unanimously ordered that
the proceedings be forwarded to the Unified District Trial Court48 to continue through the ordinary proceedings established by the Code of Criminal Procedure, “given that citizen José Manuel Zelaya Rosales is no longer a high-ranking government official.”49 These ordinary proceedings are the ones applied to regular citizens in criminal cases.
Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the
Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.
However, removal of President Zelaya from the country by the military is in direct violation of the Article 102 of the Constitution, and apparently this action is currently under
investigation by the Honduran authorities.50
V. Was the removal of Honduran President Zelaya legal, in accordance with Honduran constitutional and statutory law?
44 Expediente Judicial, Requerimiento Fiscal, Documentación Soporte – Punto No. 8, at 1, available at the
45 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 313, Sec. 2, supra note 4.
46 CÓDIGO PROCESAL PENAL art. 416.
47 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available at
48 The vernacular name of the court is Juzgado de Letras Penal Unificado.
49 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 5.
50 Telephone Interview with Mr. Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as
Judiciary
website, http://www.poderjudicial.gob.hn/ejes/Comunicados / (last visited Aug. 5, 2009).
http://www.poderjudicial.gob.hn .
Supreme Court Justice and Secretary of Foreign Relations (Aug. 3, 2009).
- - -
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -10
Prepared by Norma C. Gutiérrez
Senior Foreign Law Specialist
August 2009
Kathleen Moore
HABEAS CORPUS CANADA
The Official Legal Challenge
To North American Union
www.habeascorpuscanada.com
MY OWN VIDEOS: http://hccvideocatalog.blogspot.com
MY PRINCIPAL VIDEOS EVERY CANADIAN SHOULD SEE:
* 1. Whisper (Part I): http://www.youtube.com/watch?v=nFMzhuRpDew
Supporting docs: http://www.scribd.com/doc/17583203/In-the-Eye-of-the-Eagle-The-Secret-Co...
* 2. 1968 Press Conference of Rene Levesque to replace Canada: http://www.youtube.com/watch?v=vV-s0B0TmvY
* 3. While You Were Sleeping: http://www.youtube.com/watch?v=khtYGYpJPj8
* 4. Model Parliament for North America: http://www.youtube.com/watch?v=aYsHm_ly0Bs
* 5. http://nauresistance.org/2009/09/ekos-the-annexation-survey/
HONDURAS BLOGS AND COMMENTS:
http://nauresistance.org/2009/08/zelaya-ouster-not-a-military-coup reposted from:
http://honduras-not-a-military-coup.blogspot.com
* Recommended reading: http://nauresistance.org/2009/09/honduran-sovereignty-who-has-jurisdiction
* The FARC's Honduran Friends - http://online.wsj.com/article/SB1000142405297020425140457434057096045655...
* Hillary's Honduran Obsession - http://online.wsj.com/article/SB1000142405297020451850457442357082898080...
* http://nauresistance.org/2009/08/zelaya-ouster-not-a-military-coup/
Recommended reading: * http://nauresistance.org/2009/09/honduran-sovereignty-who-has-jurisdiction/
Recommended reading: * Report For Congress, Library of Congress: Zelaya Removal Constitutional - http://media.sfexaminer.com/documents/2009-002965HNRPT.pdf
CANADA BLOGS:
* http://canadian-state-of-the-union.blogspot.com
* http://habeascorpuscanadacomments.blogspot.com
CONTRIBUTOR STATUS:
* http://nauresistance.org
* http://nauresistance.org/2009/09/ekos-the-annexation-survey/
* http://nauresistance.org/2009/09/while-you-were-sleeping-canada-08-elect...
BANNERS AND SEALS:
* http://theplannedendofcanada.blogspot.com
HAVE A LAUGH: Communists and Theocratic Globalists want to "save Canada": http://canadiansovietactionparty.50webs.com
"Soviet" supporting documents for that spoof site are here: http://northamericansovietunion.blogspot.com
1941 COMMUNIST WORLD PLANNING MAP - CONTINENTAL UNIONS MERGED UNDER WORLD GOVERNMENT:
* http://www.scribd.com/doc/13846978/1942-POSTWAR-NEW-WORLD-MAP-by-Maurice...
* http://www.scribd.com/doc/13848564/1942-New-World-Order-Map-Contains-No-...
Source: The United States Library of Congress: http://www.scribd.com/doc/13848839/United-States-Library-of-Congress-Gom...
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* http://www.youtube.com/user/crazyforcanada * http://www.myspace.com/393788437
ARTISTIC ACTIVISM:
* http://vids.myspace.com/index.cfm?fuseaction=vids.individual&videoid=375...
* Poems to print: http://www.scribd.com/doc/14010647/Selected-Poems-for-Kids-livelinked-Vi...
* Canadian Web Award: http://www.scribd.com/doc/14009980/Selected-Poems-for-Kids-2008-Canadian...
* http://www.youtube.com/user/brightpathwaypoems
* http://brightpathway.webng.com [Poems] (linked to Habeas Corpus Canada site)
* http://kathleenmoore.webng.com [Photography] (linked to Habeas Corpus Canada site)
GALLERY:
* http://www.imagekind.com/GalleryProfile.aspx?gid=208d0dd3-d012-4380-a2f6...
CHRISTMAS E-CARDS IN FRENCH AND IN ENGLISH (CANADIAN-STYLE!)
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SUPPORT THE RESEARCH - BUY A "NORTH AMERICAN SOVIET UNION" T-SHIRT:
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DRAFT PROJECT: CONSTITUTIONAL CLUBS OF CANADA - SITE UNDER DEVELOPMENT (SEP-OCT 2009):
http://constitutionalclubsofcanada.50webs.com/
http://constitutionalclubsofcanada.50webs.com/lawresources.html
Rough Draft French pages:
http://constitutionalclubsofcanada.50webs.com/index-f.html
http://constitutionalclubsofcanada.50webs.com/ressources-en-droit.html
Author's response
My apologies for the very delayed response. For those following this thread who would like to see my response, please see the linked article: http://www.foreignpolicy.com/articles/2009/11/02/calling_a_coup_a_coup