Wednesday, July 1, 2009

Honduras' Constitution and its army

By Donald Sensing


Translation by Google (yeah, I know). Since I was once reasonably fluent in Spanish, I have massaged it a little herein; my glosses are in brackets [ ].

Let's consider the following facts seriatim (italics are mine throughout):

  • Chapter VI, Article 237: "The presidential term is four years... ." There is no provision for self succession.

  • Article 42 forbids inciting, encouraging or supporting the re-election of a president, which Zelaya was unambiguously doing.

  • The Honduran constitution makes no provision for impeachment as we understand the process. However, Article 239 provides that,
    No citizen who has already served as head of the Executive Branch can be President or Vice-President.
  • This re-emphasizes that a president may not succeed himself in office - having "already served as head of the Executive Branch," Zelaya was constitutionally inelegible to remain in office after his term expired.

  • Article 239 continues,
  • Whoever violates this law or proposes its reform [Sp.: reforma, or amendment], as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.
    Since the constitution strictly prescribes a single term for the president, and since Zelaya was openly campaigning for a second term, the country's supreme court properly ruled, on purely constitutional grounds, that Zelaya must "immediately cease" in his function as president.

  • Chapter 10, Article 272:
  • The Armed Forces of Honduras are ... established to defend the territorial integrity and sovereignty of the Republic, keep the peace, public order and the rule of the Constitution, the principles of free suffrage and alternation in the presidency of the Republic.
    Consitutionally, it is the military that is charged, in concert with civilian organs of government, to ensure that the one-term limit of the presidency is enforced. It is the military that is constitutionally charged with ensuring the intregrity of national elections.

    Therefore, the removal of Zelaya from office by the army was not merely appropriate, it was constitutionally required that the army do so. Why does the army have such responsibilities? See my post, "The role of the Honduran military," in the country's history.

  • Furthermore, when the army's chief of staff refused to send Zelaya's ballots to polling places, Zelaya personally led a mob to the warehouse, stole the ballots and had his minions start to distribute them. This act also violated the constitution because only the army has the constitutional authority to do so.

    Yet somehow, the American MSM, the White House and State Department don't do the simple research to see what Honduran law and constitutionality have to say about recent events. Instead, they knee jerked from the beginning and kept on doing it. Their ineptitude is, sadly, no longer surprising. At least I hope it's mere ineptitude, which can be overcome. The alternative is explained by Roger Simon, and it ain't good.


    The role of the Honduran military

    Reuters and AP - Intentional irony?

    "You are wrong about Honduras"

    Americans at risk in Honduras?

  • Update: Carlos Alberto Montaner, writing in the Miami Herald:
    Almost by unanimity, the Honduran Congress, supported by the Supreme Court, had removed him for breaking the law and ignoring the rulings of the Electoral Tribunal. But that was a technical excuse. The deep truth is a lot more dramatic: Zelaya, obstinate and rash, intent on being reelected at any cost, heedless of all the warnings of the judiciary and the legislature, intended to drag the nation in the direction of Chávez, something that in Honduras would have been the beginning of a huge economic and social Via Crucis. ...

    What we're seeing in Honduras is not a clash between uniformed men and civilians, or between putschists and innocent functionaries. Nor is it a return to the lamentable past of military governments. We are witnessing a conflict between two ways of understanding the function of the state and the role of the political leaders. Chávez's way -- an incipient ruling concept that Zelaya irresponsibly assumed in Honduras -- is a variant of state-run collectivism, a political stream that does away with the separation of powers that is part and parcel of republics. It exalts the personalist style, eliminates replacement of the leader, and adopts anti-Western positions that are expressed in dangerous alliances with countries like Iran and North Korea.
    As I have written, what happened last week in Honduras was the salvation of democracy and the sovereignty of the Honduran people (also guaranteed by its constitution). Zelaya was a Chavez protege. What would that have meant for Honduran democracy? Well, here's Chavez's record.


    Anonymous said...

    "Article 42 forbids inciting, encouraging or supporting the re-election of a president, which Zelaya was unambiguously doing."

    "since Zelaya was openly campaigning for a second term"

    Are you sure of that?

    By what I have read about Honduras, the critics of Zelaya say that he was planning to institute reelection, but I have the impression that Zelaya himself never talked openly about reelection.

    Donald Sensing said...

    Zelaya let the cat out of the bag when he told Honduran media that he would serve another term if the people wanted him to. Constitutionally, of course, it doesn't matter what "the people want," since until/unless the constitution is amended there can't be a second term no matter what. No one doubts that Zelaya was going to use the referendum to claim the people wanted him to stay in office and to demand that the constitution be amended to allow it.

    Rick said...

    "until/unless the constitution is amended there can't be a second term no matter what."

    As I understand, the constitution cannot be amended to extend the term. It is unconstitutional to even attempt to amend the term of the president.

    Donald Sensing said...

    Yes, that's my understanding, too, but not to the point of certainty. But I believe you are correct.

    Mike Lief said...

    Donald, the failure of the media to do the most basic research as to what the Honduran constitution says is unbelievable. Your post was the first I'd seen that looked to Honduran law. Congrats.

    Micajah said...

    If I recall correctly, one of the initial news reports stated that the legislature is the branch of government which can initiate a constitutional amendment--including a referendum to seek voter approval of the proposed amendment. The president cannot initiate the amendment, nor can he order a referendum--which, of course, he did in spite of the law.

    What you've posted here reinforces that news report's version of the law. It seems clear beyond cavil that the Honduran constitution is set up to make it darn near impossible for a would-be dictator to keep power without the support of the legislature.

    I wonder why the president of the USA doesn't ask someone in his administration to inform him about the Honduran constitution's provisions before he makes any statements based on ignorance.

    Avenir labs said...

    i think you are true!!! honduran cinstitutional is wrong

    Alex Newton said...

    That was a well thought out and researched article. My Honduran friends tell me that the government's actions are strongly supported by a majority of the people.

    Let's give the new government a chance. I'm optimistic that they will continue to follow their constitution and preserve their democracy. If not, there will be time to condemn them.

    2164th said...

    I copied your main points over at The Elephant Bar Blog. Good work.

    2164th said...

    I put you on our blogroll.

    Anonymous said...

    In addition to your greatly-welcome clear-eyed analysis I have a couple of observations:
    1): If it were a coup would they have welcomed a member of the US press corps into their president's office without an appointment and without a military guard or minder?

    2): Article 240 makes it plainly clear why the government waited until now to remove Zelaya from office: If they'd removed him back in March when he first started talking about his "willingness" to serve "indefinitely" he'd have been able to press claims of his elegibility to stand for election to the office in November. By waiting until now--and until the presence of indisputable proof of his acting in contravention of the Honduran Constitution and in violation of the civil law their Supreme Court and Congress were--intentionally or not--providing themselves with fall-back cover to prevent Zelaya from seeking the office again in the next election--and any that follows.


    V Cubed said...

    All that said, and it's great you read the Honduran Constitution:
    1 - Why didn't the legislators organize to simply beat the referendum?
    2 - Why didn't legislators and the Supreme Court enforce their orders to the military, which the military freely admits they violated by marching the president out at gunpoint, and finally
    3 - Why did legislators not only not enforce their orders to the military, but give the military a carte blanche and "forgiveness" with no legal process?

    Also, practically speaking, Honduras is the only nation in the Americas with a four-year one-term limit. Mexico has a one-term limit, but it's for six years to avert possible frequent political turmoil. We amended our own Constitution to impose term-limits. It is not unreasonable to leave a possibility open to do so, if it is the will of the people, expressed through their legislators.

    The legislators seem downright lazy or disorganized or both. A reliance on the military, and bowing down to illegal acts by the military, is not a responsible way for a legislative body to do business.

    Speaking of business, business leaders are now open to compromise to reinstate Pres. Zelaya, as obviously all trade and tourism is at a standstill. Pres. Zelaya has stated he's willing to only serve his term and no longer call for a referendum.

    And as icing on this disastrous diplomatic, economic and military fiasco, the newly-appointed Foreign Minister has called our President of the United States "that little black man" ( The FM's critique was generally about the constitutionality of their actions, but his [lack of] diplomatic skills rival only those of Chavez and our own former UN Ambassador Bolton.

    tony_la said...

    My understanding is that although the Constitution itself is not amendable by referendum, a referendum on writing a NEW constitution is nowhere prohibited in it, and that is what the ballot measure was asking for.

    We do have a charter here that was written in 1982 and has over 300 amendments - it is longer than the US constitution. It was written at a different time and much has changed since then. I think a simplification and modernization process, i.e. a new constitution, was probably in order anyway.

    I don't doubt that Zelaya had designs in mind to move in the direction of Chavez et al, and was going to use the constitutional convention to promote extension of the presidential term limits (and who knows what else), but if those opposing his politics truly believe in democracy, they had the opportunity to participate in the process and either moderate the content of the new constitution, or mobilize the votes against its adoption.

    It seems to me that the proper action the legislative and judicial branches should have taken should have started months ago when he apparently started violating articles of the current constitution.

    Marty Lund said...

    Remember the old adage: "Democracy must be something more than two wolves and a sheep voting on who to have for dinner."

    Zelaya tried to walk the Chavez / Castro path: stuff a ballot box for a single election, have your black-shirts bust heads, then "democratically" invest yourself with supreme executive power and eliminate all checks and balances on the power of your office.

    He clearly violated the Constitution of Honduras. The Constitution prescribes a clear penalty. Both the Legislature and the Judiciary found him guilty. The Military did its explicitly enumerated job to remove the ex-president from office.

    The fact that he used ballots from Hugo Chavez and lead a mob that broke into government property and stole the ballots to run a referendum contrary to the process laid down by the Constitution and the orders of the other branches of government is unforgivable.

    In the early days of the U.S.A. such antics would get a president impeached, tried by the senate, removed from office - and then likely hanged in public.

    People who are trying to claim some moral ground supporting the notion that you should be able to subvert the entire rule of law whenever you please by having a mockery of an election really need to bone up on what separates free republics from totalitarian messes like Cuba, China, Venezuela, or even the old class - the Roman Empire.

    51% of the population voting to murder the other 49% and take their stuff can be argued to be "democratic" - that doesn't make it right.

    La Gringa said...

    V-cubed, I think that I answer your #1 here

    As for why the congress didn't act sooner, they tried. Every time they made a move, he changed some aspect of his plan and they had to start over. This was a president out of control. He specifically stated that "only God or the Virgin Suyapa can stop me."