Monday, June 29, 2009

Zelaya and the law

So what does Honduran law say about what Congress and the courts should have done if they believed Zelaya was breaking the law? (I mean, besides kidnapping him in his pajamas.)

The answer is not clear--both Matthew Shugart and Steven Taylor take a look, and get to the point of finding reference to a decree that derogated a relevant part of the constitution, but they cannot find the text of the decree in question. I can't either, and now a Google search for the text of the decree brings up Steven's post that he can't find it!

Here is the constitution itself. I have been critical of the constant constitution writing/amending in Latin America, but I must say this one is ripe for rethinking. It is one of the most confusing constitutions I have read.


Gabriel,  9:52 AM  

Don't you think you are a bit unrealistic?

I fully agree that this should have been handled differently but you can't simply look at what happened yesterday without looking at the context.

At its best Honduras' political institutions are very, very weak. Then comes this president who ignores the rulings of Congress, the Supreme Court, and the Electoral Tribunal. Not only does he ignore them but he decides to storm a military base in clear violation of judicial rulings, backed by thousands of supporters. He fires military heads who refuse to follow his orders, orders that were decalred illegal by the Supreme Court. He clearly sent the message that separation of powers was for others, not for him.

Ideally the reaction would have been different. But given Honduras' history it's hard to imagine why we should expect that.

Gabriel,  10:06 AM  

Some views from Hondurans:

Steven Taylor 10:46 AM  

It is one of the most confusing constitutions I have read.


Greg Weeks 10:51 AM  

Nothing justifies the kidnap and overthrow of a freely elected president. Period.

Gabriel,  11:00 AM  

Can we say that nothing justifies a president threatening to overthrow the country's weak institutions, period?

Once Zelaya got the snowball rolling it was too late to complain about avalanches.

Greg Weeks 11:06 AM  

Since Zelaya hasn't threatened to overthrow anything, that is irrelevant, but my answer would still be that overthrow is worse than anything else. We can say that any president deemed to be acting outside the constitution should be subject to impeachment and should be able to defend him/herself.

Gabriel,  11:19 AM  

I see your point and I agree that the reaction was wrong and too much, but I don't agree that Zelaya didn't threaten to overthrow anything. He made clear, and said os in the local press, that he wanted to run for reelection ad would do so if the people asked him for that. He was clearly told his actions were illegal. he ignored that. He ignored all separation of powers.

In the end he made clear he was planning on following on Correa's and Chavez's footsteps, and a good chunk of Honduras's institutions don't want that.

leftside 1:40 PM  

Gabriel, where did zelaya say he was interested in ending term limits?All I can find are the many times he said he was not interested in reelection.

Fraklt of would have been absurd for him to have seriously suggested reelection because he was not very popular of late.

Tambopaxi 3:35 PM  


I agree with Gabriel's point that Zelaya's firing has to be seen in the context of his recent actions. I can understand your being upset about the sacking of Zelaya, but he had become an obvious threat to constitutional order in Honduras. Zelaya had clearly and repeatedly shown that he was willing to ignore the Constitution and the orders of other branches of government. His most recent actions (the storming of the military base to break out the referendum vote materials, and the firing of the military commanders because they obeyed legal orders from the Electoral Tribunal and the Supreme Court)made it crystal clear that he was willing to do anything to pull of an election action that's Constitutionally forbidden.

In light of this, Greg, do you honestly think that Zelaya would have been willing to sit still for impeachment proceedings?

Since he'd already clearly broken with Constitutional order, I would bet no, decir, against Zelaya - and it's clear that that's what members of the other branches of government thought too.

None of this would have happened if Zelaya had stayed within the bounds of the Honduran Constitution and law, and by the same token, I'd guess that the Honduran Congress, Electoral Tribunal, Supreme Court and military were not/not spoiling for a coup nor the world-wide opproprium they've brought down on themselves.

Still, I don't believe that they (members of the other branches of government) had any doubt that Zelaya wanted to become another hyper-Presidente, a la Chavez or Correa who control the other branches of government; while it's true that he hadn't yet overthrown the other branches of government, they were smart enough to see where the whole thing was going, and they didn't wait around for Zelaya to do away with them, as has happened elsewhere.

In the end, Zelaya's own actions betrayed him and put his country in a very bad spot. It's sad that now the rest of the world will work to punish the other democratic insitutions in Honduras for having reacted as they did to defend themselves...

Greg Weeks 3:38 PM  

Your argument is that if we don't think he would "sit still" for impeachment, we should not bother but rather should simply grab him and throw him out of the country. I do not agree.

What I want to see is the publication of all the laws and rulings used in his ouster.

Justin Delacour 6:56 PM  

He made clear, and said so in the local press, that he wanted to run for reelection ad would do so if the people asked him for that.

Supposing that this is true, it is rather odd for someone to mouth apologetics for a coup on account of what a president has said to the press.

The bottom line is that there are always institutional channels for resolving disputes between the different branches of government. A coup is not an institutional channel.

He fires military heads who refuse to follow his orders

Aren't military heads supposed to follow presidential orders? Why do you think Truman canned MacArthur?

Gabriel 8:10 PM  

Zelaya made it clear with his actions there really weren't many institutional channels to resolve this. Hence the outcome.

No comparison with Truman, in this case the order was judged illegal.

Greg Weeks 8:12 PM  

I just want someone to point to the specific laws used to justify these actions. That is more important than guessing what Zelaya intended.

Gabriel 8:17 PM  


maybe this helps?

Greg Weeks 9:55 PM  

Congress can decree the president's ouster? What is the constitutional basis of the decree? What is the number and text of the decree?

And the article mentions the fake resignation, which at this point no one believes.

This is like Chile, where they are still dealing with secret laws passed during the dictatorship, the text of which are not public.

Justin Delacour 9:58 PM  

Zelaya made it clear with his actions there really weren't many institutional channels to resolve this. Hence the outcome.

So you're gonna tell me that some non-binding referendum left the Honduran establishment no other choice but to carry out a ham-fisted military coup?

I guess will just have to agree to disagree.

Gabriel 9:59 PM  

Well, there's a certain circularity to all of this. If Honduras had the kind of institutions that could handle a legal and transparent impeachment, chances are this would never had happened. Institutions are weak and once you unsettle it things go crazy. That's why the main culprit here is Zelaya and the main victim is democracy.

Gabriel 10:01 PM  

It wasn't the referendum Justin. It was how Zelaya was acting. If that's not clear by now...

Justin Delacour 10:01 PM  

And the article mentions the fake resignation, which at this point no one believes.

Yeah, that was really bizarre. There's nothing like a fake presidential resignation letter to win over the hemisphere's sympathy for a coup.

Justin Delacour 10:16 PM  

It wasn't the referendum Justin. It was how Zelaya was acting.

You're all over the place, Gabriel. One minute you say you don't support a coup. The next minute you say the Honduran establishment had no other choice but to carry out a coup.

It's all just a bit confusing.

Gabriel 10:20 PM  

I know you find it confusing. It's OK.


Noel Maurer 9:23 AM  

The decree you're looking for is simple: all it says is that Article 205, clause 15 is repealed. That's how the Honduran constitution is amended.

The inital text of the clause is:

Declarar si ha lugar o no a formación de causa contra el Presidente, Designados a la Presidencia, Diputados al Congreso Nacional, Magistrados de la Corte Suprema de Justicia, Miembros del Tribunal Nacional de Elecciones Jefe de las Fuerzas Armadas, Secretarios y Subsecretarios de Estado, Jefes de Misiones Diplomáticas, Contralor y Subcontralor, Procurador y Subprocurador de la República y Director y Subdirector de Probidad Administrativa.

Noel Maurer 9:25 AM  

But you can find the text of the decree here:

Greg Weeks 11:03 AM  

Thanks for the link, though unfortunately it is not useful for understanding the legality of detaining the president and taking him out of the country.

  © Blogger templates The Professional Template by 2008

Back to TOP