Honduras Could Legally Depose Zelaya

We are now in the 9th month since president Manuel “Mel” Zelaya was deposed, the 5th month since the general elections were held under interim president Roberto Micheletti, and the 3rd month of Porfirio “Pepe” Lobo’s presidency. The deposing of Zelaya was condemned as a coup d’état by the UN General Assembly. It never reached the Security Council since it was not considered a threat to peace, but it was widely considered a threat to democracy, with some notable exceptions.

But where does it stand now?

The most exhaustive legal analysis so far is perhaps the report from Human Rights Foundation, The Facts and the Law behind the democratic crisis of Honduras, 2009 : A Constitutional and International Democracy Law Analysis (March, 2010). It is interesting to read the description of the facts, which with absolute clarity indicate how Zelaya was carrying out an autogolpe, a coup d’état against his own Constitution, with the informed consent of Insulza, who was and remains the secretary general of OAS. Still, the authors of the report, in the executive summary, stick to the politically correct terminology to call it a coup, even though they conclude that the Supreme Court had the authority to depose Zelaya based on what he had done.

If both sides of the argument are right, then there is a loophole in democracy law big enough for a South American caudillo to ride through at full gallop. This loophole has already been galloped through by Chavez, Morales, and Correa, but Honduras stopped Zelaya with a determination that has never before been seen in cases like this.

A key finding in the report was that rather than safeguarding democracy in Honduras, OAS and Insulza were agents for the would-be golpista Manuel Zelaya. They stopped just short of calling Zelaya golpista; a label they don’t give anyone for that matter.

The authors of the report did not use non-public statements or similar inside information. However, I have consistent information from several persons who were very close to Zelaya and his plans, and there is no doubt that he was planning a coup d’état on June 28th – just like the president of the Supreme Court told Insulza according to the report, and in agreement with what Zelaya’s representative told OAS on June 26 about Zelaya’s overt plans to overthrow the form of government.

The legal analysis is probably correct, but it falls short of recognizing the state of acute emergency, a condition that materially changes the analysis. It also fails to take into account the diplomatic situation, with not just OAS but also USA being on the side of Zelaya’s autogolpe. However, these conditions cannot be deduced from public information.

The Truth Commission is still needed, for that very reason. It can consider also non-public information, and even state secrets. It has now been formed; its report is expected in 8 months.

The HRF report concludes that the Supreme Court had the opportunity and the legal right to separate Zelaya from office already on June 26, but didn’t do so. Instead they mangled the legal process. Incompetence? Or something more nefarious?

My sources tell me that the original plan was to have Zelaya arrested based on the June 25 indictment, but that the plans were stopped when USA declared that it would not recognize any government resulting from such an action. Senator Kerry created this policy, Obama made it his, and ambassador Hugo Llorens conveyed it (cf. note 1 also).

Again, Human Rights Foundation writes that it would have been perfectly legal and constitutional for Honduras’s Supreme Court to have Zelaya arrested and removed from office June 26th.

And again, it was president Obama – and president Obama alone – who made sure that did not happen.

So here we are. Insulza supporting Zelaya’s autogolpe, and Obama making sure that the constitutional means for stopping the coup are not put in place. Until Honduras on June 28th says “full speed ahead, damn the torpedoes,” in essence.

Micheletti knew that he would never be recognized, but he also knew that he had no choice. Quite possibly they even knew that it was immaterial if they deposed of Zelaya legally or in a coup, as they would not be recognized in either case. That is what I read into this report, in combination with what I have learned from other sources.

Details

There seems to be a factual error in the report. [Correction 2010-04-19: There is no error, they reported the event but they did not have access to the supporting documents that I linked to below, and which I posted on this blog July 8th]. The error is in the events of Zelaya’s storming of the air force base and seizing the ballots that had been impounded by the court. It was thus a violent attack on a coequal branch of government, and probably the most obvious crime that Zelaya carried out while president.

The report mentions the storming on page 43 and dates it June 25th. On page 46 it is mentioned that the ballots and other material that they stole had been impounded by the Court, in a document that they claim was dated June 26, and made public June 28. Here are two documents seemingly relating to this act: Document from the Tribunal Supremo Electoral issued 2009-06-25 10:00 and received by the Administrative Court 2009-06-26, and a related act indicating that the order had been complied with, dated 2009-06-25 12:45.

If the material was stolen, why impound it; and if the documents are forgeries made after the fact, why write the wrong date? The only logical explanation is that the ballots were impounded before they were stolen. Perhaps the explanation of this seeming inconsistency is that the report is talking about a later order of destruction, and that it totally has missed the two documents I linked to above. [Correction: The report mentioned both the above first order but without supporting documents, and the later destruction order.]

The act of Congress is mentioned and found wanting. Others, such as the Library of Congress in the US, have found that it was legal. That report has been debated extensively in comments also on this blog. I am no legal scholar, but my feeling is that this report from HRF is more stringent and clear, and that its description agrees better with what we – at least in Scandinavia – would expect from a legal or parliamentarian procedure. The act of Congress can not easily be defended based on law alone. Only if one considers the existential threat that the state of Honduras was under that day can one justify it. Recall that OAS – an organization created to defend democracy – was actively involved in carrying out a coup d’état in Honduras, and Congress knew this full well. They most certainly felt that they had no choice but to act swiftly and decisively to take over the reigns of the republic.

The report concludes that Congress did not have the right to replace Zelaya with Micheletti. Only the Supreme Court could depose Zelaya. In the analysis of the Court’s actions, the report concludes on page 75 that the indictment of June 25 had a formal fault, in that the Attorney General had not argued that Zelaya had refused to obey a writ of summons. However, the authors may not be aware that Zelaya publicly taunted the justice system, saying something to the effect of “let them come and arrest me.” It was thus public knowledge that he would not obey a writ, to appear without being arrested. The criticism of the court’s issuance of the arrest warrant is entirely on formal grounds; the report does not dispute that there was reason to arrest Zelaya – it was just not justified in the correct legal way in the decision.

The criticism of justice Valle’s arrest order is of the same kind, omitted details that may have been completely redundant and self-evident for all involved. This can be good advice for the next time, but cannot be grounds for declaring the procedure flawed. It’s just details, and they don’t detract from the conclusion that the legal proceeding was on track, and that Zelaya could have been jailed if he had been brought to court instead of to Costa Rica. In fact, the report concludes that had he not been exiled, he would most likely have been suspended from office awaiting trial – which would have meant that Roberto Micheletti would have become the interim president, completely legally and constitutionally, no debate.

Of course, there was also the problem with issuing the arrest warrant to the military instead of to the police. The reasoning is not documented other than saying that the police has a “conflict of interest”, but it is contrary to the law. I can only guess that it has to do with individuals in command position who were loyal to Zelaya, not to the court.

International Procedures

Leaving the NGO report and looking at real legal cases, Zelaya and his supporters wanted to get the International Criminal Court to investigate the matter. Based on the intelligence I have gathered, I believe that they have been active for a number of months in gathering information in order to determine if there is any reason for them to start an investigation, but that they most likely have decided not to get involved.

Perhaps an important factor in that decision was that Zelaya and Co. also reported Honduras to the CIDH, with the Spanish acronym (Comision Interamericano de Derechos Humanos, the Inter-American Human Rights Commission). Zelaya wants CIDH to find Honduras’s democratic institutions guilty of committing a coup d’état against him, and to order the nation to hold a Constituting Constitutional Assembly. The flip side is of course that CIDH can find that there is no case against Honduras, which would finally give them the international legal opinion of support that they wanted.

Addendum 2010-04-19

1) Mary O’Grady writes 2010-04-19 that 12 days ago US ambassador Hugo Llorens hosted a dinner party in his residence for half a dozen of president Lobo’s cabinet members. Also invited was Fulton Armstrong, who works for senator Kerry, and who is infamous for having worked at the National Intelligence Council with Ana Belen Montes, “the highest ranking Cuban spy ever to penetrate the Pentagon.”

2) The HRF report sharply criticizes OAS for its part in the crisis. Not only did they fail to act to stop the erosion of democracy under Zelaya, but they actively facilitated it, led by Insulza who is repeatedly portrayed as disingenuous. However, they also conclude that the events on June 28 was a military coup d’état, an impeachment coup d’état (when Congress unconstitutionally replaced Zelaya with Micheletti), and that the Supreme Court unconstitutionally condoned these coups rather than protecting the rule of law. Although this description might be factually correct on some level, the description can also be seen as disingenuous as it disregards not only political and military realities, but also, and crucially, intent and effect.

The HRF criticism is focused on that they did not follow correct procedure in safeguarding democracy. They acknowledge that the Supreme Court legally could have deposed Zelaya, and that Micheletti then would have become the constitutional interim president. Thus, the degree of harm that the errors of implementation caused was relatively minor, at the end of the day, but HRF does not seem to acknowledge this as a mitigating circumstance.

They are right, though, in pointing out how Insulza should and could have acted instead, engaging Congress and the Supreme Court in finding a democratic and constitutional solution. By noon June 28th such a solution was still very much within reach, and it was only Insulza’s disingenuous actions that prevented a harmonious solution. Still, it is never too late to correct some of the mistakes made, especially by the court. I have much less hope for OAS, as that organization now clearly has established itself as an enemy of democracy.