Wednesday, October 07, 2009

Honduras :a new argument

For anyone who supported the ouster of Mel Zelaya, there are a variety of legal problems, but one is insurmountable. His forced exile was unconstitutional.

ARTICULO 102.- Ningún hondureño podrá ser expatriado ni entregado por las autoridades a un Estado extranjero

No Honduran can be expatriated or handed over by authorities to a foreign state.

That, of course, is exactly what the military did. Roberto Micheletti typically refers to this violation of the constitution as an "error." Oops, sorry about that.

But Senator Jim DeMint now claims he was told the following by the Honduran Supreme Court:

DEMINT: They did it right. The only thing they know that is not specifically according to the Constitution was taking Zelaya...

VAN SUSTEREN: Putting them on the plane and throwing them out of the country.

DEMINT: They said the Constitution allows for exceptional situations, and they felt like he had presented a danger to people because of his ability to use Chavez's money to instill riots.

The coup government is therefore desperate enough to lie to a U.S. senator. There is no constitutional exception to the prohibition of exile.

18 comments:

Eduardo 9:37 AM  

Strictly speaking, it can be argued that his removal was legal. The constitution stipulates that laws can be broken for a "Greater Good." And Z has this nasty habit of drawing mobs, even before this whole mess.

RAJ 12:22 PM  

This claim is repeated often. Csn you cite the section of the Constitution on which you are basing this claim?

The article Greg is citing is part of the guarantees of basic civil rights. When there are exceptional circumstances that can allow a (always temporary) suspension of one or more rights, the specific article says so. The article cited guarantees an absolute right not to be expatriated. It does not contain any clause identifying exceptional circumstances.

Article 102 is not listed as one of the civil rights that can be suspended, enumerated in Article 187 which deals with suspensions of civil rights.

In the absence of either a specific statement in the Article of conditions under which it can be suspended, or its enumeration in Article 187, and given that the language says it is "inviolable", claiming it can be violated or laws broken for the "greater good" is empty rhetoric. The vagueness of such claims is diagnostic of a lack of constitutional basis.

As a form of summary judgment without trial, based on presuming guilt, the expatriation also violates Articles 82, 89, 90, 94.

Suzanne 12:53 PM  

I understand that Zelaya's removal from Honduras was unconstitutional. What I don't understand is why the msm seems to only point the finger at the current government for this, while ignoring entirely all of the illegal, unconstitutional, treasonous things that Zelaya did first. Does this one error erase all of Zelaya's crimes? I think not.

We need to look at how to move forward from here, instead of just looking back and pointing fingers. Justice needs to be served for all who have done wrong. Zelaya was legally removed from office (not Honduras), so that should be the starting point. Zelaya can not return to office, Micheletti can not run again in the election (nor has he made any attempt to), and the 6 candidates in the running were selected by the people before this whole mess.

The election in November is the solution to the political crisis. Then the courts can decide what to do with the legal crisis surrounding Zelaya and his ouster.

Greg Weeks 1:19 PM  

Yes, I keep forgetting that accusations of crimes are actually the same as convictions. Personally, I oppose the very idea of due process. Who needs it?

Eduardo 1:44 PM  

Mayhap people should stop judging events in other countries based on their own laws.
Legality and morality are two different things, so are ethics and morality. Morality, by nature, is mercurial, and, while it can safely be stated that legal systems are inherently argumentative, any legal justifications are owed to the country in which the actions took place, not to the international community.
Z's destitution was statutory. He promoted multiple terms for presidency (video in Spanish: http://www.youtube.com/watch?v=wEKQZdUudHY), interestingly enough, by those very actions he forfeits his citizenship.
Honduran Law doesn't allow for an impeachment process per se, there is no room for the trying of a president, the only recourse when dealing with a rogue public official, short of small metal objects finding their way into their more vital areas, is immediate destitution.
Honduran Penal Code article 24 specifically alludes to a "State of Necessity" which frees from penal responsibility any citizen that through his actions breaks a law to safeguard him/herself or others, this article allows for the argument to take place. Which isn't to say I agree with how it was handled (knowing what I know now, perhaps it would've been preferable to deal with him in a more permanent manner, but that's neither here nor there, sanctity of human life and whatnot).

Greg Weeks 1:48 PM  

If there is no room for trial, then you need to tell the Honduran Supreme Court because their own documents make very clear they wanted Zelaya detained to face charges.

Eduardo 1:57 PM  

The trial would be for crimes committed under common law (embezzlement etc.) not for political crimes which would lead to his being removed from the presidency which occur under statutory law.

Greg Weeks 2:03 PM  

Then I guess you disagree with the Honduran Supreme Court. That is fine, but does not make for a compelling argument.

Justin Delacour 2:13 PM  

The constitution stipulates that laws can be broken for a "Greater Good."

What good would a constitution be if the state could arbitrarily violate it in the name of the "greater good"? That would be akin to having no constitution at all.

Eduardo 2:17 PM  

Most sane people disagree in some ways with their respective legal bodies.
My point is, however, not to extol the actions of the current government, but to establish that while their actions aren't necessarily faultless, a lot of them were necessary. I won't go so far as asserting that the ends justify the means, but everyone makes the decisions one feels are right. I would happily defend those involved in Z's expatriation after seeing what his presence unleashed in the country (I live not two-blocks from the Brazilian embassy). I would certainly describe it as a crime of necessity.
I have thrown my lot behind the interim government, for good or ill, not because I feel Micheletti (not particularly fond of him, either) is the second coming, but because Zelaya had to be removed, not because he is evil but because he is an exceptionally greedy lunatic.

Eduardo 2:18 PM  

My bad, Justin, I meant the penal code, not the Constitution.

Justin Delacour 2:20 PM  

knowing what I know now, perhaps it would've been preferable to deal with him in a more permanent manner, but that's neither here nor there, sanctity of human life and whatnot

What?

Do you have any idea as to what the political ramifications of executing Zelaya would have been? What could you possibly deem "preferable" about such a course of action?

Eduardo 2:55 PM  

Yes, Justin, I am painfully aware of what the ramifications could've been, hence the "perhaps". I was just musing, I'm not currently polishing my sniper rifle and positioning myself near a window (even though the most primitive, savage part of my brain would probably celebrate such an act). I just wanted to stress the fact that it could've been dealt with more savagely, "simply" executing everyone who stood by Z's ideals.
Also I'm a angry with Z. So I was just expressing that.

leftside 3:24 PM  

interestingly enough, by those very actions (seen in the you tube vide) he forfeits his citizenship.

Come on. Even with my terrible Spanish I can see that he did not "promote multiple terms for Presidency." He answered a question on the topic by noting that the people ought to have the final authority on all matters - something the Constitution makes clear. "All power eminates from the people." Plus the Supreme Court did not take this argument seriously. They did not invoke the requisite Article 239 in any of their written arguments at the time. This was something others latched onto after the fact by lopes like you.

leftside 6:14 PM  

New poll results show Hondurans oppose the coup by a 3:1 margin and favor Zelaya's reinstatement 3:2.

RAJ 2:00 AM  

The cited article from the Honduran Penal Code does not justify expatriation. Published in La Gaceta in its current form as Decreto 225-2004, revised Article 24 of the Penal Code. I invite interested parties to download the original themselves.

This Article gives protection from prosecution for individual citizens who, in self-defense against illegitimate aggression on their persons or personal property, use deadly force. The requirement for self-defense is that someone has to be committing active aggression against you, and the level of force you use in response has to be proportionate. The person defending him or herself also has to avoided provoking the aggression.

The article is very clear, and it is not a general pre-approval of ignoring the law when it is inconvenient. It is frightening that the political confrontation in Honduras has brought out this kind of creepy theorizing about ignoring the law and committing violence when there are in fact perfectly fine legal remeedies.

When Eduardo claims that

Honduran Law doesn't allow for an impeachment process per se, there is no room for the trying of a president, the only recourse when dealing with a rogue public official, short of small metal objects finding their way into their more vital areas, is immediate destitution

he of course is merely echoing coup apologists' arguments which are completely false.

The Honduran Constitution no longer has a process of impeachment because there is a mechanism in the penal processual code to try high government officials in the Supreme Court. This was the process that was initiated June 26, and allowing it to go forward would have included giving President Zelaya his rights of due process-- presumption of innocence, right to confront his accusers, right to present a defense, right to appeal in the event of a guilty verdict-- all rights that Greg points out to Suzanne and Eduardo need to be followed through under Honduran law (no need to apply international standards, Honduran law says no one is guilty until a trial is concluded).

The Supreme Court had started that process not on "embezzlement etc.", because-- contrary to coup apologists' arguments Eduardo has heard-- no one has filed charges of embezzlement (I cannot say about "etc.").

The Supreme Court process was taking up the charge of "treason" that Suzanne thinks the mainstream media are somehow ignoring; and as Greg notes, she also is ignoring the requirement in Honduran law of due process and the presumption of innocence. We will never know what would have happened in the legal procedure that was truncated by the illegal expatriation; but Honduran legal scholars such as Edmundo Orellana have published multiple commentaries arguing that the charges laid out were inappropriate to the actual actions of President Zelaya, that the form of the charges was legally flawed, and that a legal process should have resulted in clearing President Zelaya of exaggerated charges of treason and the like.

Finally, while I agree that Honduras has to look forward, like most international commentators and many scholars in Honduras, I see no way that the country can move forward by having an election in an atmosphere of repression of free speech, free assembly, and other civil liberties.

Nell 11:27 AM  

I'm pleased to see leftside's mention here of the recent Honduran poll results published by Al Giordano, which have not yet gotten the wide visibility they deserve.

RAJ posted on them at her site. Greg has linked in his 'quick clips' secton to boz's bloggings of the poll, which contains this passage:

Even though some people will spin this poll as pro-Zelaya, it's worth noting less than half the population supports Zelaya. He's gained a few sympathy points since the coup, but he and his policies are not overwhelmingly popular (as his supporters would like to believe).

I've read anti-coup websites closely since June 28, and can't think of anyone who's said that Zelaya and his policies are overwhelmingly popular; maybe boz can say who he's referring to.

But it takes a bunch of spin to characterize these solid poll results as anything but pro-restoration, anti-coup, and pro-Zelaya.

51.6% support Zelaya's restoration to office, with 33% opposed.

Among the long list of Honduran public and political figures, Pres. Zelaya and Xiomara Castro de Zelaya are viewed significantly more favorably than any other: 44.7 excellent/good opinion to 25.7 unfavorable. They're more than ten points ahead of the nearest politicians, Eduardo Maldonado (31.4 pos, 23.2 neg) and Pepe Lobo (30.5 pos, 34.1 neg).

These results come after months of non-stop vilification of Zelaya in the majority of Honduran media.

In the Honduran context, where there is substantial and warranted distrust of virtually all those in political office, Pres. Zelaya is what passes for popular. He is also the legitimate, elected president, and the majority of Hondurans want to see him restored to office for the remainder of his term.

MSS 4:42 PM  

Oh, but see, neither the military nor the Supreme Court had any authority to exile Zelaya. Therefore, he was not sent out of the country by "authorities."

Ergo, the coup--er, I mean, the operation to defend the constitution--was perfectly legal!

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