Thursday, July 30, 2009

Honduras and the Supreme Court

Similar in tone to his Wall Street Journal editorial, Roberto Micheletti is saying Mel Zelaya could possibly come back, as long as the San José Accord was modified to make it palatable to other state institutions. It could well be just another way to drag things out. Tucked in the Reuters article was this:

The Honduran Supreme Court, which ordered the army to oust Zelaya on June 28, is due to rule this week on Arias' proposal that Zelaya be allowed back to serve out the rest of his time, which ends early next year.

Two problems with this. First, the Supreme Court did not order the army to oust Zelaya. They only ordered his detention, but neither his exile nor removal from office. Second, since the Supreme Court never ruled that Zelaya should be removed from office (if there is a Supreme Court document I have missed, let me know) then I am not sure what it needs to decide. Nowhere did they indicate that their order entailed his removal from office.

In other words, it should not be too hard to uninvoke things that were not invoked in the first place.


Anonymous,  8:34 AM  

Legal question: can a president be arrested and retain the attributes of the presidency? For example could an arrested president still issue orders others would be legally bound to follow?

boz 8:39 AM  

Legal question: can a president be arrested and retain the attributes of the presidency?

From what I understand, in Honduras, the answer is probably a yes.

Nell 11:36 AM  

Greg, you have probably already seen this, but in case not, and for others reading here:

RAJ lays out what the Supreme Court has and has not ordered, translating and analyzing the key points of the Court's own documents.

Also at RAJ's, translation of a document purporting to be written by dissident military officers -- remarkable if genuine (and informative even if not).

Nell 11:39 AM  


Even if a president who had been arraigned on a charge or charges were legally required or chose to leave office, he would be replaced by his elected vice-president. His cabinet members would remain in their posts.

Anonymous,  12:10 PM  

Boz ,

i have a hard time beliving that's true. So an arrested president could order his troops to surround the place where a trial is held and they would legally have to obey? That makes no sense.


if a president is deposed he is succeeded by the next in line. In Honduras' case that was Micheletti, as head of Congress, since the VP had resigned months ago to run for the presidency. You did not know that?

Cabinet members serve at the pleasure of a president.

boz 1:37 PM  

If we've learned anything from this crisis, it's that the Honduras constitution has a few flaws and doesn't always make logical sense. But, as SG Insulza said at an event a few weeks ago, "it's not the constitution I would have written, but it's what we have to work with."

RAJ 10:11 PM  

Honduran legal systems were, up until the early years of the current decade, based on the presumption of guilt (Napoleonic code) and lacked a system for oral trials familiar in North America. Reforms in place in the past decade have changed the official version of legal systems, but scholars writing about this note that most practicing attorneys and judges still operate under the forms they originally learned, which include presumption of guilt, and trial and sentencing by judges without requirement of full oral trial. Thus, some of the confusion about what is and is not legal within Honduras and internationally has to do with this being a debated new terrain to which Hondurans are unaccustomed.

Within the Honduran legal system, high government officials have specialized standing and the requirements for their trial in case of accusation are different from those of most citizens. This is referenced in the Supreme Court document thread when on June 29 they issue an order changing the nature of their actions against President Zelaya because, they say, he no longer is acting as President and thus can be prosecuted through the "ordinary" system.

For high government officials, the procedure had been for the National Congress to determine there are grounds for impeachment, and the Supreme Court to act as the trial court. As a consequence of constitutional reform, the procedures for impeachment provided in the Constitution were changed. This is often characterized as there being no means of impeachment. In an upcoming blog post I will cover what actually happened to procedures for impeachment. But it is not really relevant, since the key issue here is about immunity, not impeachment.

As a high government official, President Zelaya has a degree of immunity from prosecution during his term of office for lower crimes (this is common in constitutional law and not peculiar to Honduras). I am tracking down precisely how far this immunity went. It is likely, however, that the actual offenses for which the Public Prosecutor sought to charge him were covered by immunity, since they consisted of violations of laws about administration: who in the government gets to do what. These had penalties of fines and possible imprisonment for relatively short terms (e.g. 2-6 years). In general constitutional law, a sitting government official is immune to prosecution for such crimes, but a case can be initiated and pursued after the end of his/her mandate.

What would normally not be covered by immunity would be high crimes such as treason. Hence the Public Prosecutor sought to claim that Zelaya's refusal to follow the order of the Court of Contentious Administrative Law amounted to treason. The constitutional law faculty weighing in on this point appear to be unanimous in judging that administrative disputes are not treason.

Hence, what the Supreme Court ordered was Zelaya's detention (not actually arrest) because it was claimed by the Public Prosecutor that he was a flight risk; and that his statement on the charges (of violating administrative court decrees) be taken.

As a result of the same reforms that instituted a presumption of innocence and a right to oral trial in Honduras, both the Supreme Court and Public Prosecutor are now appointed by the National Congress, for seven-year terms. The Supreme Court was re-appointed this year. This reform, intended to depoliticize these bodies, has not been successful; it has merely shifted control over them to the Legislative Branch from the Executive Branch.

Nell 2:51 PM  


Aristide Mejia was the Vice President of Honduras at the time of the coup, and is today (he represented Zelaya at the Tuxtla summit on Wednesday).

Mejia spoke at a UN conference in New York just a few days before the coup. I've been unable to confirm whether or not he had returned to Honduras before masked special forces soldiers shot their way into the presidential house early Sunday morning June 28, forced Zelaya onto a plane in his pajamas, and dumped him on the runway in Costa Rica.

This sequence of events in no way makes Micheletti the legitimate "successor" to Zelaya .

Nell 7:44 PM  

I was struck at the time he made it by Anonymous' confidence in the (completely inaccurate) assertion that the office of Vice President was vacant at the time of the coup. Today, in the course of looking up something else, I happened across the passage on which it's probably based, in a Miami Herald profile of Micheletti by Jim Wyss published July 10:

When Zelaya was toppled two weeks ago, there was no sitting vice president. His second in command, Elvin Santos, had stepped down months earlier to run as the Liberal Party candidate in the November presidential elections. Indeed, it was Santos who beat Micheletti for the spot on the ticket. But that twist of fate left Micheletti, as president of congress, the next in line of succession.

This "twist of fate" bit is a flat lie. I have no doubt Wyss was told it by some coup supporter, but he discredits himself as a journalist by having neglected to do even a minimal fact check. The U.S. State Department official country profile for Honduras, dated February 2009, shows Aristide Mejia as Vice President.

Anonymous,  8:31 PM  


You are quite wrong.

Once the previous VP resigned Zelaya did not have the right to name a new one. It's not in the Constitution. Zelaya did not have the legal right.

That's why Aristides Mejia said he was not going to be VP, just do the job of VP. That means that he was never Constitutionally next-in-line.

Nell 4:43 PM  

Uh huh. And the constitution also says vice presidents can't run for president, but somehow Elvin Santos did it -- and no one's looking to bundle him off to another country in the early morning. RAJ today has an account of the sequence of events from last summer onward, which casts a cold light on the hypocrisy of the coup supporters' huffing and puffing about adherence to the sacred constitution.

If VPs can resign (or if they die or become incapacitated), then there has to be a way for a president to appoint a new one who can fill all the functions of the office, which includes finishing a president's term if s/he becomes unavailable (dies, resigns, is impeached).

Just another reason for constitutional reform.

Nell 4:45 PM  

Forgot link to RAJ's post on the VP-resigning-running-for-pres events, in which the Supreme Court, Congress, and Santos make a mockery of the law.

Nell 4:49 PM  

RAJ's post, which makes clear that if you're someone of whom the oligarchs approve, "do-overs" are just fine.

When they don't, the inadequacies and complexities of the current setup will be used against you at every turn.

Anonymous,  6:26 PM  


It would help if you rceognized when you made a mistake. There was no VP at the time of the coup. The Zelaya admin admitted that when they named Mejia. They accepted he was not the VP, that he would just carry out his functions. That's why they called him VP comisionado. So no, he was not next in line.

As for RAJ I've learned not to trust his analyses. Among other things he wrote, he claimed Zelaya did no wrong when he stormed a base to get the ballots despite a court order since Zelaya had another interpretation of the law.. Gee, Maddoff could have used that defense!

Since you mentioned the Constitution, did you know what Mejia did before? Defense minister. Check what the Constitution says about that.

Zelaya supporters never address the key legal point, which is that the courts, and not Zelaya, are the arbiters of what is legal or not. Once the courts spoke Zelaya had to obey.

Greg Weeks 6:52 PM  

Anon--RAJ is male?

Nell 1:31 PM  

Fine; I'm wrong. There was a "vice president" functionary, not a vice president who could succeed Zelaya.

As I said above, that's just one of the many serious flaws in the Honduran constitution. No matter what happens between now and the November elections, and in those elections, there is going to continue to be a popular demand for constitutional reform.

rozydesouza 6:59 AM  

good one ...thanks for sahring...

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