Critics of Honduran President Manuel Zelaya were sheepishly joyful by his ouster from power, subtly setting aside esoteric questions related to whether the democratic process had been subverted or not. Some respected political pundits and citizens in their letters to editors pointed out that support by the Honduran people and its institutions was enough to justify the military ousting. Other critics, almost lamenting how world democracies stood up to defend the system they represent, expressed bewilderment about the extent of the uproar over an incident that has taken place many times before without generating so much criticism.
Zelaya’s actions reflected a crude ambition in his attempt to alter the electoral process. However, although forbidden by the Honduran constitution, his actions at the time of his ousting were far from attaining his objective. Zelaya would have undermined democracy only if he had succeeded through a military coup. Further, it is accurate to say that when it comes to defending democracy, President Zelaya is supported by friends who have little if any credibility; quite a few have subverted and weakened democracy in their own countries.
Critics of the U.S. decision to oppose Zelaya’s ouster point out that we should be supporting rulers who are friendly to us (apparently, regardless of how they come to power). In their view, leftist rulers present greater threats to democracy than middle of the road or rightist leaders. Nonetheless, advocating or justifying subordinating the rules of democracy to the foreign policy interests of our government, these critics undermine the democratic process at a time when the rest of the world seems to be taking a stand at strengthening it.
The type of democratic systems that prevails in constitutional republics around the world today has a few sacrosanct principles that distinguish it from other socio-political systems. Violating any of these would be tantamount to undermining the democratic process. Paramount among these principles, perhaps the most basic one, is the rule of law. The legal system that guides the entire socio-economic and political system in a democracy stems from the nation?s constitution; it comprises the Do’s and Don’ts of the nation’s politics.
Metaphorically speaking, the laws of a democratic nation are similar to the rules of a sporting game, say baseball. All teams and players agree beforehand to abide by the same rules. If a team or a player violates one of the rules, all other players and teams enjoying equal status would be justified in violating the same or any other rule; the outcome would be similar to the political chaos that existed in Latin American politics throughout much of its past history.
Among the most significant rules of a constitutional democracy are the transparent election of public officials by all eligible voters (universal suffrage), and the legitimate transition of political power and authority. While the former vests constitutional legitimacy upon the nation’s leaders, the latter prevents the rule of man from subverting the rule of law. Too often, unfortunately, supporters of democracy stress the legitimacy of the electoral process while disregarding how the system deals with and solves its political crises. We forget that the soundness of the democratic process lies not in its ability to prevent political crises from occurring–man is an ambitious animal–but rather in the capacity, skills, and discipline of its leaders to solve them by constitutionally-established rules.
All constitutional democracies have or must have established means to deal with improper or unconstitutional actions on the part of its leaders. They consist of two very basic and publicly held steps: impeachment, usually carried out by the legislative, which amounts to bringing forth charges against a government official, and conviction, either by the legislative or other legal entity. Once convicted, the public official is asked to step down. If necessary, in order to comply with the constitutional process, he or she may be removed by force. In Honduras, the process was reversed; President Zelaya was charged and seemingly convicted after being ousted by the military without a trial.
Zelaya had been undermining the democratic process, no doubt. Democracy, however, was subverted by those who short-circuited the process. At that particular time, the rule of man undermined the rule of law. It is worth noticing that the Honduran constitution does not provide the Supreme Court with the power to order the military to depose the president who happens to be the commander in chief of the armed forces.
Setting aside criticism from all sides, the following is well known although no one seems to be acknowledging it:
1) The Honduran Attorney General requested the Supreme Court to order the military to arrest President Zelaya at his home under charges of having violated the constitution.
2) A Supreme Court justice authorized the action.
3) The military apprehended Zelaya at his home and took him by plane to Costa Rica.
4) Article 102 of the Honduran Constitution states that no Honduran may be deported or surrendered to the authorities of another nation.
5) The Honduran Constitution has the means to bring about the impeachment and conviction of a president. Articles 205, 208, 305, 313, and 316 specifically address the issue of wrongdoing by a high-level government official.
6) Honduran political institutions–the Congress, the Supreme Court, and the military–opted for setting aside the above constitutionally-granted procedures.
7) The military violated Article 102 of the constitution.
8) No one within the military has been held legally accountable by the Attorney General, the Congress, or the Supreme Court for violation of Article 102.
It is quite possible that, had the impeachment procedure been followed (See Explanatory Note below), Congress would have found that Zelaya had committed impeachable offenses, namely having violated those articles related to holding a referendum without the approval of the Congress. Charges of intent to re-elect himself to office would have been more difficult to prove but, politically, Zelaya stood to lose. Such was the constitutional window of opportunity that was set aside by the political institutions.
Claims by Honduran politicians and the military that they removed Zelaya by force to prevent bloodshed does not provide, constitutionally and politically speaking, sufficient basis to violate the constitutional process. If subjective expectations of violence in democracies were to prompt public officials to violate the constitution the rule of man would prevail over the rule of law. Ironically, the action taken by the Supreme Court, the Congress, and the military may backfire bringing the nation to the brink of social and political unrest and/or civil war. If such violence materializes, it may provide other nations with excuses to intervene thereby adding unnecessary instability to the region.
In the end, those who supported the military coup should ask themselves why it is important for democracies around the world to defend their political systems regardless of who is in power. The answer is that infringements of the constitutional process tend to justify other violations, which in the end undermine the process itself. We must not forget that a constitutional democracy is, in principle at least, the highest form of moral government for it is the only system that upholds the freedom, rights, and dignity of each individual the same as all others.
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Explanatory Note: In the aftermath of Zelaya’s removal from office, two U.S. Government documents were published analyzing the event. The Law Library of Congress issued its report, “Honduras: Constitutional Law Issues,” in August 2009, while the Congressional Research Service (CRS) published its own version, “Honduran-U.S. Relations,” on October 6, 2009.
The CRS report is uniquely detached and objective and it does not arrive to any conclusion regarding the constitutionality of Zelaya’s removal. Instead, it allows the reader to interpret the chronology of events as they occurred.
The report by the Law Library was published in reply to a request by U.S. Congressman Rep. Aaron Schock, R-Ill., who had inquired whether the Honduran Government had proceeded in accordance with the law in removing President Zelaya from power. This report was criticized by those who opposed the incident for “over-reading” of the Honduran Constitution while those who supported Zelaya’s removal used the document to criticize the Obama administration’s stand on the issue and to side with anti-Chavez forces inside and outside of Honduras.
The point I sought to make in the above article is that, despite having the necessary constitutional powers to bring Zelaya to trial and likely to remove him from office, the National Congress chose not to rely on the “impeachment-like” procedures at its disposal. Note: The Law Report correctly states that while specific impeachment legislation no longer exists, the constitution does enumerate various powers residing in the hands of the Congress and the Supreme Court that may accomplish the same objective. I cite several of these powers in the article.
Three important points, however, need to be made. First, conflictive inquiries issued at the request of members of Congress need to be read between the lines. For example, the Law Report states, “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” (emphasis added). The statement suggests that the analyst did not have all pertinent information at hand; only what the Honduran Government had released. A correct interpretation of this statement might be that the Honduran authorities responsible for removing Zelaya from office were of the opinion that their actions were in conformity with constitutional and statutory law.
This apparent partiality initially appears in the report’s Executive Summary as it adds that, “The Constitution … gives Congress the power to interpret the Constitution.” While nothing in politics is impossible, it is dubious that a republican constitution would allow those who write the law to interpret it, too. If so, this may be one reason why so much chaos has been created by those who removed Zelaya from power.
Further ambiguity expressed by the Law Report analyst attests to the uncertainty of the constitutional question. The analyst states, “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” (emphasis added). In the end, the analyst, in a show of proper research and analysis techniques, concludes, “The question of which Constitutional provision gives the National Congress the power to remove the President still remains.” In addition, as if to further qualify the constitutionality of Zelaya’s forceful exile in Costa Rica, the Executive Summary concludes quite tersely, “The Constitution prohibits the expatriation of Honduran citizens.”
The second point pertains to the question the Law Report asks regarding the constitutionality of Zelaya’s removal: “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?” (Emphasis added).
The question incorrectly indicates “findings” by the National Congress and the Human Rights Ombudsman. Only the Attorney General had brought charges against Zelaya prior to his removal from office, which the Supreme Court agreed with. The National Congress, as well as other social and political institutions had expressed political opposition to Zelaya’s actions but there had been no formal “findings” other than the decisions by Attorney General and the Supreme Court.
Perhaps, the most egregious unconstitutional action throughout the entire Honduran affair, which went unnoticed by the Law Report, is the timing of the judgment the National Congress issued against President Zelaya. The CRS Report states—and the Law Report agrees—that, “Following Zelaya’s removal …, the Congress then passed a decree that disapproved of Zelaya’s conduct for ‘repeated violations against the Constitution and laws of the Republic and nonobservance of the resolutions and rulings of the judicial organs,’ removed Zelaya from office, and named Roberto Micheletti—the Head of Congress and the next in line constitutionally—the president of Honduras for the remainder of Zelaya’s term…”
Such disapproval was precisely the charge that the National Congress was constitutionally mandated to issue prior to Zelaya’s removal from office as a means to request the Supreme Court to review the charges and take action. However, as the CRS Report indicates, the action by the National Congress was taken retroactively. Indeed, Zelaya had been charged and found guilty after he had been removed and sent to Costa Rica. He never underwent a trial as mandated by the constitution. News of the so-called “extensive investigation” that the National Congress relied on “to disapprove of the conduct of the President,” as stated in the Law Report’s Executive Summary, was made public after Zelaya’s removal.
Other errors in the Law Report are worth mentioning. The report states that, “Two days later, on June 28, 2009, Zelaya was arrested. Nonetheless, Zelaya was never arrested. The Supreme Court had issued a warrant for his arrest; however, someone undercut this decision and instead the Army took Zelaya by force to a foreign State in violation of Article 102 of the constitution. Note: In reference to my statement that the Supreme Court does not have the power to order the military to depose the president, it is correct that the Supreme Court is empowered to rely on the Armed Forces to adjudicate its decisions. In this case, however, it was the National Police that was empowered to have Zelaya arrested, according to documentation presented by the Attorney General. Someone made the decision to circumvent this procedure.
Further, the Law Report did not give much value to other constitutional violations by the National Congress, the Supreme Court and/or the Armed Forces, despite its veiled acknowledgement. The report states, “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. However, someone decided to shortcut the Attorney General’s requests, as, according to the information provided by the Honduran Government, only the first two requests were implemented.
Inasmuch as it seems that President Zelaya had violated the constitution, and probably would have been found guilty if properly judged, in lieu of the above, it is constitutionally challenging at best to argue if his removal was legal. In the end, the democratic process became the unintended victim.
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