Introduction. The Timetable and the Motives behind the Honduran Coup. This, the second of a multi-part series on the Honduran coup against Manuel Zelaya, seeks to understand how it was viewed by both supporters and opponents of Zelaya, develop a clear timeline of events, and examine the legal issues, including both Honduran and international law. While conclusions are left to the final section, this analysis does make it clear that the removal of Zelaya violated the Honduran Constitution, which was the threshold event triggering international involvement.

Also in this section, troubling questions of US involvement in the coup are surfaced. Additionally, politicization of the Library of Congress, which produces key research reports on which the US Congress depends, is demonstrated. Just as corrupt intelligence from the Office of Special Plans led the US into an unnecessary war and occupation in Iraq, research written with an agenda can deceive the Congress and the Administration into disastrous foreign policy decisions.

(Continued from Part 1. Crossposted at DailyKos by my MR co-blogger Charles Utwater.)

Whom the gods would destroy, part 2 (continued from part 1): The crisis in Honduras

                                By Charles Utwater II

The Timetable and the Motives behind the Coup.

a. Charges and countercharges. Reconstructing the causes, actors, and motives behind the coup is extraordinarily difficult. A number of theories have been put forward on why Zelaya was forced from office. Those in favor of the coup generally claim one or more of the following (and deny that Zelaya’s removal was a coup):

• Zelaya was trying to succeed himself in office, either by re-election or by seizing power, specifically by having a referendum (note the term) on whether to hold a Constitutional Convention

• Zelaya was mentally ill

• Zelaya had broken one or more "set-in-stone" articles of the Constitution, whose punishment is immediate removal from office

• Zelaya had committed numerous civil crimes and had to be removed from office

• Zelaya was a communist or, at least, an acolyte of Hugo Chavez, who wanted to turn Honduras into a new Venezuela or a new Cuba.

    To see a good example, consult Mary Anastasia O’Grady of the Wall Street Journal [24], who has served as the standard bearer of those who support the coup. Setting aside its veracity, that article makes the last four of the claims.  

    Those who oppose the coup generally ascribe the coup to one or more of the following:

• Zelaya had raised the minimum wage from about $1.20 per hour to $1.70 per hour, angering sweatshop owners, the restaurant owners, Chiquita, and others who rely on low wages (Honduran minimum wage laws are complex, and beyond the scope of the present work.)

• Zelaya had refused to illegalize the "morning after" pill, angering the Roman Catholic hierarchy, as well as most evangelicals

• Zelaya had resisted privatization of the electrical and phone companies, angering those who hoped to profit from privatization

• Zelaya had ended the Byzantine regulation of gasoline, which had boosted prices, obtaining cheap gas through Petrocaribe, and angering international oil companies and those who profited from the existing system

• Zelaya had joined the Bolivaran organization ALBA, which includes Cuba and Venezuela, providing a pretext to anti-communists to accuse him of communist sympathies

• Zelaya wanted to convert Palmerola airbase to civilian use (the runway at Toncontin airport is too short for civilian aircraft to safely land), angering the US military

• Zelaya wanted to fulfill the campaign rhetoric on an Asamblea Nacional Constituyente (Constitutional Convention), and was laying the framework by holding a non-binding poll to put political pressure on Congress to act. Since the power of the oligarchy requires that the political system frustrate any possible reform, this threatened their interests

    A good example of the coup opponent’s arguments is given by Gonzalo Sánchez [25], who lists military bases, ALBA, and the Constitutional Convention as the proximate causes of the coup. Additional information is found in a piece by Zelaya’s Minister of Culture [26], which adds these interesting allegations:

Already by late September of 2008, there were rumors of a Coup. General Romeo Vasquez appeared on a popular TV talk show and confessed he had been approached with the suggestion that he lead a Coup, but not by President Zelaya, as the opposition argued, in order to prolong his mandate, but by members of the opposition.

and

Things came to a head clearly by January of this year when President Zelaya, availing himself of the "Law for the Minimum Salary…decided that minimum wage increases should … cover the basic cost of living (canasta básica) of the ordinary family, and decreed a 60% + increase, which then came to be $280 per month, and was still one of the lowest in the region…

All hell broke loose, and a very consistent theory came to the forefront of the pro-coup "national" press. President Zelaya was said to be an irresponsible populist who was fueling the fire of class division. He was an instrument of Hugo Chavez.

and

And then the last chapter opened….  There had been wide agreement, even since the 2005 campaign, that the Constitution guaranteed a monopoly of political representation to traditional parties and that it was in fact conceived as a straight jacket to assure privilege rather than as guideline of principles. But his political enemies immediately interpreted President Zelaya had only his continuity or reelection in mind. It was said again that he was imitating Chavez, and that he was betraying his mandate.

The President insisted many times every time that elections would be held as scheduled, but that a referendum should be held simultaneously, to see if people wanted to convene a new Constitutional Assembly, during the next presidential term. Since our present Constitution did not contemplate any solution to the predicament, he announced first a popular "consultation."

b. The events immediately prior to the coup.

    Taking the timeline presented by the Honduran Supreme Court [27], supplementing it with the writings of former Defense Minister Ángel Edmundo Orellana Mercado [14] and other sources, one can construct a timeline of how the rationale for the coup emerged. In this regard, a number of posts by HondurasCoup2009 are very helpful [28]. Eva Golinger’s blog (http://www.chavezcode.com) is also very much worth reading.

    In this, it should be understood that Article 5 of the Constitution indirectly, through the definition of process, reserves to the Congress the formulation of the consulta (ballot question), which may take the form of a referéndum (dealing with ordinary laws) or a plebiscito (dealing with Constitutional provisions). However, the President, Congressmen, or the citizens through petition may propose a consulta. Why the Congress would ever use a consulta when it already has the power necessary to amend laws or the Constitution is a mystery reserved to the elect.

    It should be noted that there is nothing in the Constitution to forbid the taking of an encuesta (non-binding poll or survey), although presumably the Congress could refuse to fund it. Finally, it should be understood that Zelaya, from the beginning, proposed to ask whether, in the general elections of 2009, there should be a ballot question on convening a Constitutional Convention. What he proposed clearly did not legally bind the country to convene a Constitutional Convention, only to holding a vote on whether to do so. In other words, what a coup prevented was not a Constitutional Convention, but letting people express their opinion on whether they wanted one.

                       Timeline of the coup

September, 2008:  According to Rodolfo Pastor Fasquelle [26], there are rumors of a coup, including a statement by General Romeo Vasquez Velasquez that he had been approached by opponents of Zelaya to conduct a coup.

November, 2008: By this time, a press campaign of defamation is in progress. To take two examples: La Prensa in a news article accuses Zelaya of "continuing in the footsteps of… Hugo Chávez, Evo Morales and Rafael Correa," then using Juan Ramón Martínez to question whether this was a "conspiracy against the country’s democratic institutions," and that there was an obvious danger that the constitutional order would be broken (a euphemism for a coup). He accused Zelaya of having claimed to have won through fraud and accused Chancellor Patricia Rodas of having claimed that it would be better to live in a dictatorship [29]. The accusation against Zelaya is, at best, tendentious [Zelaya said that there was fraud in the election of 2005, not that he was committing it]. I haven’t encountered the Rodas statement. Former President Rafael Leonardo Callejas accused Zelaya and Rodas of having invented a meeting with him to discuss the Constitutional Convention, and suggested that Zelaya was mentally ill [30]. Micheletti implied that Zelaya was planning a coup.

March 23, 2009: Presidential Decree PCM-05-2009 [31] is issued (but never officially enacted by publication in La Gaceta), ordering a "consulta" on whether to have a vote on whether to hold a Constitutional Convention. This is promptly challenged by the Public Minister.

May 26: A new decree PCM-19-2009 [32] is issued. This decree, which became effective on June 25, 2009 by publication in La Gaceta, revoked Decree PCM-05-2009, even though that PCM-05-2009 had never become effective. A separate decree on the same date, PCM-20-2009 [33] orders an encuesta (non-binding survey) on whether to have a vote on whether to hold a Constitutional Convention.

May 27: The Juzgado de Letras de lo Contencioso Administrativo (Court of First Instance of Administrative Disputes) orders a stay delaying the effectuation of the consulta, but not ruling on its legality.

May 29: The same court "clarifies" the stay by banning any conceivable action that might result in a consulta.

June 3: The same court wrote to the President to order him to follow their directives of May 27th and May 29th.

June 4: El Heraldo reports that US Ambassador to Honduras Hugo Llorens is (inexplicably) weighing in on the issue of a Constitutional Convention. Noting that it is a Honduran internal matter, he says, "…whatever you do, it should be within the law, do it within the law, within the Constitution. One cannot violate the Constitution to create a Constitution, because if one doesn’t have a Constitution, one is living by the law of the jungle." He then refers to the 1980s, when Honduras was savaged by paramilitaries and death squads, as a happy time when the Honduran people’s love of democracy saved them all the sorrow suffered by El Salvador and Nicaragua, and closes with a paean to the democracy-loving Honduran military [34].

June 16: The Corte de Apelaciones de lo Contencioso Administrativo (Appellate Court superior to the preceding court) upholds the actions of the lower court.

June 18: The Court of First Instance of Administrative Disputes writes to the President again reiterating its order not to proceed toward a consulta and, separately, to direct that within 5 days the Executive respond as to what measures it had taken to comply.

June 24: President Zelaya dismisses his military Chief of Staff, General Romeo Orlando Vásquez Velásquez, who refused to carry out orders regarding the encuesta. The resignation of Defense Minister Ángel Edmundo Orellana Mercado was accepted, and the resignations of the Commanders of the Air Force, Naval Force, and Army were requested.  

June 25: Zelaya leads a group of people to the military base where the opinion survey forms are stored. Without violence of any kind, the forms are retrieved. Ironically, unarmed protestors confronting heavily armed troops is characterized by the American press as "mob violence."  

The Supreme Court of Justice refuses to accept the firing of General Romeo Orlando Vásquez Velásquez. It does not mention the consulta.

Separately, a complaint is issued by the Attorney General accusing Zelaya of :

• crimes against the form of government

• treason

• abuse of authority, and

• usurpation of functions.  

Also, La Gaceta prints PCM-19-2009 (repealing the call for a consulta) and PCM-20-2009 calling for an encuesta.

Also, the full Congress was convened to discuss removing Zelaya. A number of Congressmen protested and were excluded from the meeting of June 28th in which Zelaya was actually removed [35].

June 26:  The Supreme Court appoints a magistrate to review the process of indictment in its preparatory and intermediate stages. He apparently accepted the warrant and ordered the capture and raid, all on the same day. The raid is ordered to be only during the hours of 6AM and 6PM, as ordered by Article 99 of the Constitution, and—consistent with Articles 28 and 102—did not order his expatriation. Rather, the orders given to Lieutenant Colonel Rene Antonio Hepburn Bueso specify that Zelaya be delivered to the appropriate authority for the political crimes enumerated above.

Oddly, a separate authorization is given to General Romeo Vásquez Velásquez.

Also, the Court of First Instance of Administrative Disputes ordered the military not to take part in any consulta or encuesta. Members of the Central American Judicial Council were notified by the President of the Council and by the Supreme Court of the illegality of holding an encuesta (note the shift in language from consulta to encuesta).

June 28: Zelaya is seized at about 5 AM. While the details of the raid are difficult to document, Zelaya alleges that a large contingent of commandos machine-gunned the presidential palace, seized him while he was still in his bedclothes and bundled him into an airplane. Film available on the Internet generally supports this account. According to Palmerola commander Gen. Douglas Fraser, Zelaya was flown to the Palmerola airbase before being dumped on the tarmac in Costa Rica [36].

Also, the Supreme Court affirms that the seizure at gunpoint of Zelaya and his expulsion were based on legal orders.

Finally, in the Congress, a resignation letter, dated 6/25, supposedly from Zelaya but widely believed (including by the US State Department [37]) to be a forgery was read aloud. Bypassing the Constitutional requirement that the vice-president replace the President and in a session not legally convened, the Congress cited Constitutional articles 1, 2, 3, 4, 5, 40 (4), 205 (20), and 218 (3), 242, 321, 322, and 323 in Legislative Decree No. 141-2009 to censure Zelaya and replace him with Roberto Micheletti, who was head of the Congess. Not mentioned in the Decree is article 239 of the Constitution, which forbids anyone who has served as President to serve more than the allotted term, and allows for the immediate removal from office of anyone who even proposes to reform Article 239. Also not mentioned in the resolution is the letter of resignation.  

June 30. The Supreme Court removes the seal of secrecy from the arrest warrant.

July 2:  The Supreme Court of Justice releases documentation of its acts [27]. There are numerous peculiarities to the documentation [28, 38] (one minor peculiarity is the fact that the letter from the Supreme Court is undated; the date of July 2 is provided under the PDF properties tab).

    Certain important questions remain unanswered. Helene Cooper and Marc Lacey of The New York Times reported that [39]:

The White House and the State Department had Mr. Llorens "talk with the parties involved, to tell them, ‘You have to talk your way through this,’ " a senior administration official said Monday. " ‘You can’t do anything outside the bounds of your constitution.’

Still, administration officials said that they did not expect that the military would go so far as to carry out a coup. "There was talk of how they might remove the president from office, how he could be arrested, on whose authority they could do that," the administration official said. But the official said that the speculation had focused on legal maneuvers to remove the president, not a coup.

    The first paragraph apparently refers to the El Heraldo report of June 4th. Presumably, then, Llorens had these talks on June 3rd or earlier. The second paragraph presumably refers to events after June 4th. Despite the denials, the implication that the State Department may have been involved in the coup is inescapable.

    Another question that remains unanswered is the role of the US military in the coup. General Fraser’s denial of knowledge that Zelaya passed through Palmerola is not credible. If he really didn’t know, there are serious problems with US intelligence. But read carefully this press briefing from August 17th [40]:

QUESTION: There have been some charges that the U.S. knew about the planned coup of President Zelaya because the plane that was carrying him stopped at the air base that houses U.S. troops. Can you respond to those charges?

MR. CROWLEY: Soto Cano Air Base belongs to Honduras. It was run by and operated by the Honduran Air Force, and they make decisions about its use. Military personnel were not involved in the flight that carried President Zelaya to Costa Rica on June 28th. Task Force Bravo members had no knowledge of or any part in the decisions made for the plane to land, refuel, or take off.

In light of the June 20th coup, the 600 American soldiers, sailors, and airmen based at Soto Cano as part of JTF Bravo have ceased conducting joint operations and exercises with the Honduran military.

QUESTION: So you – so the U.S. troops on the air base didn’t – and the Administration didn’t know about the flight until after President Zelaya had already taken off from the air base?

MR. CROWLEY: I think that to the extent that we were concerned about the emerging crisis in Honduras, I think at the ambassadorial level we expressed our concerns to Honduran authorities prior to the coup. I don’t think we had any advance knowledge of what took place.

    First, it’s a plain admission that Zelaya was flown through Palmerola (Soto Cano) and an admission that the US government believed that a coup was likely (Crowley only denies advance knowledge). Second, the assertion that the "Honduran Air Force … make[s] decisions about its [Palmerola’s] use," is misleading to the point of being false. Clearly the United States also makes decision about its use.  

    Also, the specification of which unit "had no knowledge of or any part in the decisions" is disingenuous. Task Force Bravo is not the only unit at Palmerola. According to the Joint Task Force Bravo website, the 1st Batallion of the 228th Aviation Regiment is also stationed there as a support unit [41], as doubtless are certain other military or CIA units that JTF-B doesn’t advertise. The statement that "Military personnel were not involved in the flight…" is as close to definitive as the statement gets, but even there, there it does not deny knowledge. If General Fraser did not know that Manuel Zelaya was being flown through Palmerola, it was almost certainly because the Ambassador or someone of higher rank ordered him not to know what was going on.  

    There are questions about whether certain documents may have been forged or backdated. Certainly the letter of resignation is a forgery, since it would make no sense for the Congress to remove Zelaya if he had previously resigned. But some of the documents released by the Supreme Court are questionable as well [38, 42, 43]. For example, why are there two separate orders to seize Zelaya? Why does the order directed to Col. Bueso lack a typed signature? Has that order been backdated?

    Finally, there are also legal questions, the chief of which is whether the Juzgado de Letras de lo Contencioso Administrativo overreached by banning any conceivable action by Zelaya. Was there not an appeal above the level of the Corte de Apelaciones de lo Contencioso Administrativo?,If so, where is it? Why were the Congress, and especially the courts, usually the most leisurely branch of government, suddenly in a rush after May 29th? Why remove Zelaya rather than indict him and try him or wait him out? These are some of many questions that would have been asked had there been proper due process.    

c. International Law and the Expulsion of Zelaya. International law is perhaps best viewed in a different light than conventional criminal and civil law. Ordinary lawbreakers are under the direct power of the courts of the nations in which they reside. Nations, however, are not usually under the direct power of other nations. Nations cannot be imprisoned or executed. So, international law is concerned primarily with defining accepted norms of behavior, so that when nations cease to abide by those norms, it is easier to organize the international community in the imposition of sanctions. Granted, international law may be "honored more in the breach than in the observance," as Hamlet puts it, but it is also our highest expression of universal human values. Like our own Constitution once was for nations aspiring to become democratic, international law is a lamp to the nations.  

    International involvement was triggered by Zelaya’s expulsion. Expulsion was a direct violation of Article 102 of the Honduran Constitution ("No Honduran may be expatriated or sent by authorities to a foreign state" without due process.) This article of the Honduran Constitution is, as it must be, in harmony with the international treaties to which Honduras is a signatory, notably Article 9 of the UN Universal Declaration of Human Rights [44] ("No one shall be subjected to arbitrary arrest, detention or exile") and Article 20 of the American Convention of Human Rights "Pact of San Jose, Costa Rica" [45] ("Every person has the right to a nationality.") Accordingly, both the OAS and the UN had jurisdiction over the matter, and the OAS took the point on setting it right. By defining the removal of Zelaya as a coup, the OAS defined the Micheletti government as a dictatorship, a designation that has been confirmed by the United Nations.  

    In the course of the just the first three months of the crisis, the Honduran dictatorship managed to break numerous other points of international law, but for the moment, let us focus on an analysis of the situation as of the completion of the coup presented by Doug Cassel, Professor of Law and Director of the Center for Civil and Human Rights at Notre Dame Law School [46]. Cassel points out that the appearance of some sort of legalistic process made it problematic for the OAS to invoke Article 9 of the OAS Charter [47], dealing with the overthrow of a government by force, but Article 21 of the Inter-American Democratic Charter [48] allows for the situation in which there has been "unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state." The OAS therefore must interpret whether a country has obeyed its own constitution.  

    The operative portion of the Legislative Decree purporting to replace Zelaya after the fact reads as follows [14]:

ARTICLE 1. The National Congress in applying Articles 1, 2, 3, 4, 5, 40 number 4, 205 number 20, and 218 number 3, 242, 321, 322, and 323 of the Constitution of the Republic agrees:

1. To censure the conduct of the President of the Republic, citizen JOSE MANUEL ZELAYA ROSALES, for repeated violations of the Constitution of the Republic and the laws and failure to observe the resolutions and verdicts of the organs of legal authority, and

1. to separate citizen JOSE MANUEL ZELAYA ROSALES from the post of Constitutional President of the Republic of Honduras.

ARTICLE 2. To promote citizen ROBERTO MICHELETTI BAIN, currently President of the National Congress, to the post of Constitutional President of the Republic, for the time which remains to complete the term of office and which expires on the 27th of January 2010.

ARTICLE 3. The present decree becomes effective at the end of the approval of two-thirds of the vote of members who belong to the National Congress and thereupon the execution is immediate.

Cassel cites four examples of how Congress’s expulsion of Zelaya breached the Honduran constitution:

• The Honduran Constitution lacks a provision for impeachment by Congress, one of its many defects.

• The resignation letter was, apparently, "no more than an embarrassing ploy" and therefore a fraud committed by the Congress,

• There was an absence of due process,

• The expulsion of Zelaya from the territory of Honduras directly violated the Constitution

    By declaring in the resolution that Zelaya had committed treason, an apparent reference to Articles 2 (usurpation of powers) and 4 (extending the term of office beyond one term) of the Constitution, the Congress made it a matter for the Supreme Court, which has jurisdiction to try allegations of treason; Congress does not. Article 205(20) permits the Congress to censure but not to remove the president. Article 242 allows the Congress to replace a president who is permanently absent. It has nothing to do with impeachment.

    Edmundo Orellana [14], a legal scholar and a reasonably neutral voice, confirms many of the points raised by Cassel and delves even more deeply. The provision that the Congress might have invoked without entangling itself too deeply in the need for due process was Article 239 ("anyone who proposes to reform the constitutional ban on re-election of a president, and those who help him, ‘will cease immediately in the exercise of their respective positions.’"). The Congress specifically did not cite this. Similarly, there is a provision of the penal code that they might have mentioned—but then their intrusion into sitting in the place of judges might have been too obvious.

    The legal recourse open to Congress was to accuse Zelaya of crimes and ask the Supreme Court to try him. Indeed, the Supreme Court did begin the process of indictment. However, their process did not proceed beyond the indictment stage, and even that is clouded by questions regarding the backdating of one of the two orders to seize Zelaya. To achieve even the semblance of due process, the Court would have had to hale Zelaya before it and allow him to tell his side of the story before arriving at a judgment. Even such a minimal show of respect for the law was denied by the impatience of the directors of the coup.

    The Congress was also caught in its own web by the designation of succession indicated in the Constitution. Zelaya could not be declared to be permanently absent without being convicted of a crime. In a temporary absence, the President’s designee would be placed in office. Rather than execute due process—accuse Zelaya of crimes and try him—the Congress simply broke the law.

d. The scandalous Law Library Report: the Library of Congress corrupted

    In August of 2009, Norma C. Gutiérrez, a researcher at the Law Library in the Library of Congress, released to Congressman Aaron Schock report LL File No. 2009-002965 titled Honduras: Constitutional Law Issues [49]. This became the basis for right-wing claims that the removal of Zelaya from office, though not his expulsion from Honduras, was legal.

    It is not an exaggeration to call this report an offense to scholarship and a disgrace to the Library of Congress. One need not be a legal scholar to appreciate the fact that conclusions for key issues need to be based on diverse, objective, and verifiable sources. This is especially true for controversial issues, and triply so when the reputation of the Library of Congress would be jeopardized by reckless disregard for scholarly principles. Gutiérrez is a seasoned researcher, who has capably handled issues as politically explosive as the case of Elian, and she knows this.

    But legal scholars have also eviscerated Gutiérrez’s conclusions, independent of her sourcing. Since the Library of Congress has, to the best of my knowledge, not acted to clean up this mess, despite the request of Representative Howard Berman and Senator John Kerry that the report be withdrawn [50], it is not unreasonable to suspect that the institution has become politicized. Just as with the Iraq intelligence, concocted by the Office of Special Plans, corrupt research is feeding misguided policy.

    The Gutiérrez report arrives at two conclusions:

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.

However, removal of President Zelaya from the country by the military is in direct violation of the Article 102 of the Constitution, and apparently this action is currently under investigation by the Honduran authorities

    The latter conclusion is self-evident. The fact that no report has been issued by the Honduran government is telling. So it is the former conclusion that is at issue. Parse it: who were the Honduran authorities who judged that the judicial and legislative branches applied the law properly? Why, the same ones who executed the coup!

    And who are the "available sources" that Gutiérrez used? It turns out that there is only one primary source: "Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations." This is the Guillermo Pérez-Cadalso who served as a lobbyist for the coup [51]! He is cited in one-tenth of the footnotes (#25, #38, #40, #43, and #50). Almost a third of the other footnotes are to the Honduran Constitution. Not one of the remaining footnotes is to Cassel, Orellana, or the other many good sources that were available at the time that Gutiérrez wrote her report. And did Pérez-Cadalso prepare a legal brief or any form of writing for her? No. This was all done by telephone!

    The indispensable item that Pérez-Cadalso supplied was a bizarre legal theory as to what the Honduran Congress was thinking as it voted to remove Zelaya:

A systematic reading of the different constitutional provisions dealing with the right of Congress to interpret the Constitution (such as Article 205, Section 10 and Article 218, Section 9) also indicates that the Honduran National Congress has the power to interpret the Constitution with general effect. This task is performed through interpretative laws, decrees, or other acts. One may conclude that the National Congress implicitly exercised its power of constitutional interpretation in the case of Zelaya when it decided that its power to "disapprove" the President’s actions encompassed the power to remove him. [emphasis added]

    This arrogation of the powers of the courts to interpret the laws to the Congress is not legal even in Honduras. As Krsticevic and Mendez [52], lawyers both, tartly replied:

Dubious legal reasoning aside, it is doubtful that the Honduran Congress has the power to interpret the country’s constitution. In fact, one of the provisions the report cites to support the existence of such authority does not exist. The provision in question–Article 218, section 9 of the constitution–was struck down by the Honduran Supreme Court more than six years ago.

Citing the U.S. Supreme Court’s seminal Marbury v. Madison decision, the Honduran Supreme Court affirmed the rather basic principle that for true separation of powers to exist, the courts–rather than the legislature–must have ultimate authority to interpret the constitution. This principle is further enshrined in the 2004 Law on Constitutional Justice.

    They add that Gutiérrez managed to miss all of the violations of basic due process inherent in using commandos to seize a man at 5AM, bundle him into a plane, and summarily deport him.

    As a coda to this sorry tale of mis/malfeasance at the Library of Congress, a very interesting interchange took place on HondurasCoup2009 with a defender of impeachment that served to expose the issues of Honduran law involved in the separations of powers question [53]. Article 205(10) of the Constitution, which eventually replaced Article 218(9) claims for the Congress the power to interpret laws. This was proposed in 2002 (Decreto 276-2002), and ratified in 2004 (Decreto 241-2003), entering the Constitution on March 10, 2004 by publication in La Gaceta. Alas, on May 7, 2003, the Honduran Supreme Court had very appropriately declared this to be unconstitutional. The Congress refused to allow the Court’s rebuke to be published, creating the illusion that it had a right to interpret law, and thereby arrogated unto itself powers that no democracy can permit it to have: the power to both make and interpret the law.

    This illustrates a useful point. In not submitting meekly to the courts, Manuel Zelaya clearly did push the envelope. In Honduran politics, pushing the envelope is not unusual. For that matter, there was once a president of the United States who pretended to make laws through signing statements and Executive Orders, ignored court orders, and otherwise pushed the envelope. As far as I am aware, no American recommended that he be seized by the military and deported. So, perhaps we could apply a little humility in judging President Zelaya.

    The next section will review the State Department response, human rights violations by the dictatorship, and the present situation.

____________________________________________________

Blogs that you probably aren’t reading and should be:

http://www.hondurascoup2009.blogspot.com

http://www.quotha.net

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References

…

1. Edmundo Orellana, Coup D’état in Honduras. A Juridical Analysis, http://quotha.net/…

…

1. Gonzalo Sánchez, Historia del golpe de estado, desde la llegada de Zelaya al gobierno hasta la reunión del presidente legítimo con los golpistas. De la cuarta urna al genocidio en Honduras, 11/7/09, Rebelión, http://www.rebelion.org/…

1. Rodolfo Pastor Fasquelle, The short story of the Coup (a lecture presented at Harvard), 10/3/09, http://quotha.net/…

1. Honduran Supreme Court, Special Communique, http://www.poderjudicial.gob.hn/…

1. RAJ, What the Honduran Supreme Court Authorized…, 7/8/09,  http://www.hondurascoup2009.blogspot…

1. Unsigned, Mel propone plebiscito para instalar Constituyente. El presidente Manuel Zelaya sigue los mismo pasos de la extrema izquierda de Suramérica, La Prensa , 11/21/08, http://www.laprensahn.com/…

1. Unsigned, "Ésa es la mayor imbecilidad que oí"Callejas niega haberse reunido con Zelaya para hablar de una Constituyente, La Prensa, 11/21/08,      http://www.laprensahn.com/…

1. unofficial copy of PCM-005-2009 Presidential Decree of March 30, 2009 http://www.elsoca.org/…

1. A partial copy of this is available at http://www.laverdadenhonduras.com/…  

1. Presidential decree PCM-020-2009 http://www.latribuna.hn/… and ~/gaceta-2-1000.jpg

1. Agustín Lagos, Lo que se haga debe ser legal y constitucional, 6/4/09, El Heraldo, http://www.elheraldo.hn/…

1. M. Valente, El Parlamento no convocó a todos los diputados para destituir a Zelaya, Diario Vasco, 7/6/09 http://www.diariovasco.com/…

1. Tiempo, Avión que llevaba secuestrado a Mel Zelaya se aterrizó en Palmerola, 9/3/09, http://www.tiempo.hn/…

1. State Department briefing, 6/29/09, http://www.state.gov/…

1. RAJ, The Honduran Supreme Court: In its own words, 7/29, http://hondurascoup2009.blogspot.com…

1. Helene Cooper and Marc Lacey, In a Coup in Honduras, Ghosts of Past U.S. Policies, 6/30/09, New York Times, http://www.nytimes.com/…

1. Philip J. Crowley, State Department Press Briefing, 8/17/09, http://www.state.gov/…

1. Joint Task Force Bravo/Southcom Website, viewed 11/25/09,  http://www.jtfb.southcom.mil/…

1. RAJ, The Public Prosecutor’s Accusations of President Zelaya, 8/4/09, http://hondurascoup2009.blogspot.com…

1. RAJ, A Supreme Exit? 9/18/09, http://hondurascoup2009.blogspot.com…

1. The Universal Declaration of Human Rights, http://www.un.org/…

1. American Convention on Human Rights Pact of San Jose, Costa Rica http://www.oas.org/…

1. By Doug Cassel, Honduras: Coup d’Etat in Constitutional Clothing, 7/29/09, American Society of International Law, 13(9) 2009.  

http://www.asil.org/…

1. Charter of the Organization of American States, http://www.oas.org/…

1. Inter-American Democratic Charter, Lima, 9/11/2001, http://www.oas.org/…

1. Norma C. Gutiérrez, Honduras: Constitutional Law Issues, 8/09, Library of Congress, LL File No. 2009-002965, http://schock.house.gov/…

1. Letter, Senator John Kerry, http://hondurascoup2009.blogspot.com…

1. Kevin Bogardus, Hondurans lobby against deposed leader The Hill, 7/9/09, http://thehill.com/…

1. Viviana Krsticevic and Juan Mendez, Was the presidential ouster legal?, 10/22/09,  Forbes Magazine, http://www.forbes.com/…

1. RAJ, Congress versus the Supreme Court (a long story), 10/3/09, http://hondurascoup2009.blogspot.com…

Continued from part 1

© 2009, Charles Utwater II

(included simply so that I can re-publish it elsewhere)