Last week, the Honduran Truth and Reconciliation Commission (Commission) confirmed that the June 28, 2009 forced removal of former President of Honduras Manuel Zelaya was a coup d’état. This is good news. Unfortunately, the report goes on to recommend a series of unnecessary constitutional reforms intended to allow for a legal process to remove a president from power.
Problem is: procedures for a special trial against high-ranking state officials are already clearly and unambiguously articulated and regulated in the current constitution. They just weren’t followed. Amending the beleaguered Honduran constitution again to address this phantom problem will not only fail to address the fundamental issue behind the events of June 28th, they will further confuse and weaken Honduran rule of law.
The Commission’s report, “To Prevent These Events from Happening Again” claims (1) that “the Honduran system for checks on the executive power is problematic and has substantial omissions, along with contradictory and dispersed legal rules, open to a lax interpretation;” (2) that “a basic modern constitutional principle is that a president may not be removed by a court decision, but only by a resolution of Congress with due process of law;” (3) that “the constitutional crisis of June 28, 2009 demonstrated that Honduras lacks an impeachment process;” and (4) that “to prevent these events (the coup) from happening again, the constitution should create this procedure.”.
But these assertions are simply not true. Article 313(2)(c) of the Honduran Constitution gives the Supreme Court the power “to adjudicate on the legal actions brought against the highest state officials and congressmen.” Articles 414 to 417 of the current Code of Criminal Procedure outline each of the steps that a criminal suit against the president must follow.
According to these provisions, only the Supreme Court may administer the proceedings in a criminal suit against the president from beginning to end. First, the Supreme Court must designate one of its justices to initiate proceedings and make decisions throughout the preparatory and intermediate phases, which may include arrest, search warrants or precautionary measures.
Second, the Supreme Court, in full (en banc), must designate three justices and a fourth substitute to serve as a trial court, and among them, appoint one justice to preside over the trial. Finally, in response to the sentence by the trial court, the president may file an appeal, which would have to be decided unanimously by the criminal chamber of the Supreme Court. If the criminal chamber cannot reach a unanimous verdict, the Supreme Court sitting en banc must make the final decision.
In the case of a guilty verdict or conviction sentence, the Supreme Court can penalize the president with disqualification from office. The Court may also temporarily remove the president as a precautionary measure when charges include “crimes against the public administration.”
None of these steps were followed in Honduras.
Since 1825, Honduras has enacted 14 different constitutions and modified the constitutional provisions regarding presidential trials at least 15 times. The first Honduran Constitution was adopted in 1825, when Honduras was still a member state of the Federal Republic of Central America along with Guatemala, El Salvador, Nicaragua, and Costa Rica.
In the constitutions of 1839 to 1965, the Congress’s decision that there were “grounds for a cause of action against the president” automatically brought about his “suspension” from office. The suspension thus led to a presidential succession by “temporary absence” of the president, pending the Supreme Court’s ruling on the trial.
Currently, El Salvador and Venezuela have this model of presidential trials similar to that of pre-1965 Honduras. Under this system the congress cannot remove the president from office but can suspend him until the end of the trial before the Supreme Court.
In contrast to a system in which only the Supreme Court has the power to try a president (and congress only has the power to temporarily suspend him or her during the trial), in Argentina, Chile, Dominican Republic, Ecuador, Mexico, Paraguay, Panama , and Uruguay, the legislative branch has the power to remove the president. In Brazil, Colombia and Peru the legislative may remove or suspend the president.
This type of trial by the legislative power is known in Spanish as “juicio político” (political trial) and is inspired by the presidential impeachment trial in the United States, which is inspired by the British impeachment trial.
The Honduran Constitutions of 1965 and 1982 (currently in force) eliminated any reference to Congress’s power to suspend the president from office. Despite the elimination of this reference to suspension, both the constitutions of 1965 and 1982 did grant the Honduran Congress the significant power of authorizing or vetoing a presidential trial before the Supreme Court.
In this type of presidential trial, Congress’ decision lifts or upholds the “immunity” that protects the president from criminal suits arising from the performance of his or her duties. Today, countries like Bolivia, Costa Rica, Guatemala, and Nicaragua follow this model.
Finally, the constitutional reform of 2003 eliminated the Honduran Congress’s power to authorize or veto the trial against the president. As a high state official, however, the president still has the privilege to stand trial only before the highest court—the Supreme Court of Honduras.
If the Attorney General’s Office and the Supreme Court had carried out a criminal proceeding against President Zelaya, he could have been suspended from office in the proceeding’s initial hearing, as a result of the application of a precautionary measure, but not by the Congress. Indeed, President Zelaya’s utter disregard of various court decisions provided sufficient grounds for the Court to decree his temporary suspension from office; abuse of authority (court disobedience) is a crime that makes this precautionary measure applicable.
However, none of this took place because President Zelaya was suddenly rousted from bed at gunpoint and exiled to Costa Rica in his pajamas, and because the Supreme Court decided to stand idle instead of carrying out an ex officio constitutional review of the actions by both the armed forces and Congress. The truth is that the Honduran Supreme Court stood still as the Constitution was being treated as a piñata at a kid’s birthday.
Overall the Honduran Truth and Reconciliation Commission’s report was conclusive and balanced. Yet, it was wrong to claim that there is no presidential trial in Honduras, and it was wrong again to recommend that Honduras reforms its constitution in order to include such procedure.
The commission’s assertion that the solution for Honduras is yet another reform is plain misguided—if not dangerous. What’s really necessary “to prevent these events from happening again” (to quote the title of the report) is for Honduran politicians across the spectrum to uphold their country’s constitution, instead of violating—or changing it—every time it does not suit them.
Javier El-Hage is a guest blogger to AQ Online. He is General Counsel of the New York-based Human Rights Foundation and the author of HRF’s report, The Facts and the Law behind the Democratic Crisis of Honduras, 2009-2010.
June 1: This AQ-Efecto Naím segment looks at sustainable cities in the hemisphere.