Resistencia and Democracy in Honduras

There is in Honduras a grouping calling itself “the national popular resistance front against the coup d’état”, FNRP. Before scrutinizing their agenda I just have to comment on their name.

As is now known, the coup d’état was perpetrated by Manuel Zelaya, but it was stopped by the checks and balances, the democratic institutions of Honduras. However, it is not that coup d’état which this organization is referring to in their name. They are referring to the action to stop the coup d’état, when they say “coup d’état.” However, according to my analysis, it was a coup only in form, not in substance, as neither the constitution was changed, nor any president was put in place who would not have been president if all the formalities of the constitution had been followed to the letter.

One may describe the events with this similitude: Zelaya was in his office, and committed a crime. The court asked the military to fetch him. To prevent him from returning they booby-trapped the door. Micheletti was sworn to take care of business in Zelaya’s absence. He climbed in through a window, since the door was booby-trapped. Seeing this, the police was called, thinking he was a burglar. This is a relevant similitude, since the actions of the military prevented Micheletti from being made interim president in the appropriate way, but he still had an obligation to run the office in Zelaya’s absence – and Zelaya was not coming back since all he faced was his immediate arrest.

Nevertheless, FNRP considers Micheletti’s “climbing in through the window” to be a coup, and they consider the attempted overthrowing of the form of government by Zelaya not to be a crime.

What is the argument of FNRP?

Their argument is that the power of the Congress and the President emanates from the people, and is only delegated to them. Therefore, they argue, the people can take that power back. They claim that they, FNRP, is the true representative of the people, not Congress, nor the President. They argue that their self-appointed organization is more democratic than the will of the people as expressed in democratic elections every 4 years, latest on November 29, 2009.

Furthermore, they claim that the appointment of Roberto Micheletti as interim president on June 28, 2009, was a coup d’état, and as a result of that, they argue, the Constitution has ceased to be in force. Therefore, they continue, since there is no Constitution of the land, it is appropriate to hold a Constituting Constitutional Assembly in order to write a new Constitution from scratch.

For good measure, Zelaya is also asking the Inter-American Human Rights Commission of OAS to declare the replacement of Zelaya a coup d’état, and to order Honduras to hold a Constituting Constitutional Assembly.

What is the plan of FNRP?

They plan to create a new Constitution themselves. Regarding a planning meeting held March 12 to 14, English-language blogs write, “After a serious debate the various sections of a new constitution were laid out.”

Not able to find any such document online, I proceeded to seek information (through a mutual acquaintance) from Congresswoman Carolina Echeverría, from Depto Gracias a Dios. She was one of those liberal party congressmen and -women who objected to the way in which Micheletti was appointed interim president on June 28, and she is, I’ve been told, one of the top leaders of FNRP. I appreciate that she was willing to share some information with me for use on this modest blog.

According to Echeverría, a Constituting Constitutional Assembly is being prepared for June 28, 2010. A new constitution is being drafted by a working group. However, the process is not open. The general public does not have insight into what it may contain, nor can they contribute with input.

However, another source with a good connection network in FNRP has told me that they are at present discussing prolonging the maximum presidential period from 4 years at present, to somewhere between 8 and 16 years. This would entail to change one of the unchangeable paragraphs that are “cut in stone.”

What can FNRP hope to accomplish?

If the debate and the meeting are not open, then the whole process becomes a special-interest partisan effort that will have no impact on mainstream Honduras. The only way in which it can become relevant is if they force it on the rest of the population. Since this is unconstitutional, there are only three ways in which it can happen: A coup d’état, a revolution, and a foreign military intervention (cf. previous post).

I think we can rule out revolution and war, which leaves only the coup alternative. Is there any reason to suspect that the present president might attempt the same kind of coup as Zelaya did?

Unfortunately, the answer is not “no.” Pepe Lobo was sent by the Honduran communist party to study in the Soviet Union. He denies it, but a person I interviewed assured me he has talked to three persons who studied together with Lobo in Moscow, and although two of them are now dead, the third is still alive and can bear witness about it. What makes this suspicious is not that he studied there for a few months, but that he is assuring that he didn’t.

Furthermore, Lobo was initially positive to Zelaya’s plans, until the wind turned against it. Finally, an FNRP-connected source has told me that the party of Lobo, the Nacionalistas, are participating in the drafting of the new constitution.

Here I should point out, that if any elected politician in any way proposes or facilitates changing the presidential term limit, they would immediately lose their elected office, and be ineligible to hold any elected office for 10 years, according to §239 in the Honduran Constitution.

Therefore, they have every reason to hide their participation in this process. The Nacionalistas don’t just have the presidency at present, they also have a majority in Congress. The only branch they don’t control is the Supreme Court.

A coup scenario

Assuming that the above is correct, what may happen in the worst case scenario is that the Nacionalistas decide to vote in Congress on a motion that simply recognizes that the present Constitution is null and void (by being violated by the alleged coup last year, that they themselves voted for incidentally, but what says they have to be logical and consistent?). The next step would then be to vote to recognize the legitimacy of the Constituting Constitutional Assembly and the new constitution. That constitution would obviously throw out the present Supreme Court, since that is the only institution capable of stopping such a coup.

If the military obeys the president (who has replaced the entire leadership of that organization since the coup attempt by Zelaya), then this might succeed.

Is this likely to happen? No. But if it happens, it would be a big setback for democracy and the rule of law.

How can the threat be diminished?

First we have the legal means. Already now, any elected official that in any way, shape, or form violates §239, should be indicted and separated from office awaiting trial. Since contributing to drafting this new constitution would be a violation of §239 (and more), this may be the reason why the process is not open to the public. However, even advocating the holding of a Constituting Constitutional Assembly may violate that paragraph. The problem with this method is that it may backfire seriously in the field of public relations.

Therefore, I would advocate primarily using political means. Members of Congress who are opposed to constitutional coups can deflate any popular support the FNRP might have, by taking the initiative in the efforts to (legally) reform the constitution. Indeed, Congress itself can start an open and transparent process with citizen participation. It could take the form of a website for debating the need for, and proposals for, constitutional reform. Since only Congress is authorized to change the Constitution, it only makes sense if Congress itself does this. Of course, they should use experts in designing the user interface, but staff or representatives should engage in the debate and the wording of proposals.

Although there are some unchangeable paragraphs in Honduras’s Constitution, I don’t understand how those points in any way could prevent progress. There can be no democratic reason to write a new Constitution, as reforming the old one is perfectly adequate. Anyone who argues otherwise must be suspected to be an anti-democrat.

If Congress takes the initiative, the undemocratic forces can be marginalized so they no longer can prey on popular discontent. Undemocratic forces on both extremes need to be separated from the mainstream, so a civil debate can take place within the mainstream.

Personally I am quite optimistic about the possibility to do this in Honduras. I believe that many of those who most loudly claim that it is impossible, are the very extremists who we must marginalize. Those are not the ones to listen to, they should be turned off – or just switch channel.

Defending a Coup d’État, Can You?

My argument is based on self defense. Just like we don’t call a person who kills his would-be murderor a murderor, we should not call someone a coupster for using the methods of a coup d’état to foil a coup d’état, in order to save the State in an emergency.

A source of confusion, and an origin of different interpretations of the legality of the events in Honduras in June, 2009, is the fact that the term coup d’état (golpe de Estado) is widely used but not defined. I have some news to report on the ongoing activities of the self-denominated “resistance against the coup d’état,” but before doing that it is convenient to analyze what the term coup d’état really means. Of course, this is strictly speaking redundant since there are legal terms for all these crimes, but since coup is so widely used in common speech it may still serve a purpose.

The Human Rights Foundation has tabulated a number of definitions in their report The Facts and the Law behind the democratic crisis of Honduras, 2009 : A Constitutional and International Democracy Law Analysis (March, 2010; pp. 96-98). In my humble opinion, they are virtually all wrong, though, in that they consider that in order to be a coup, the victim must be the chief executive. Parenthetically they do not even consider the possibility of a parliamentarian system with a separate head of state and head of government: which of the two is the chief executive for the purpose of the coup? Only one source listed any branch of government as the victim.

So is Mel Zelaya a victim? Not if you ask me. He was just a servant to his people, elected to work for them. He can impossibly be a victim in his capacity as president (only as an individual person whose human rights were violated, e.g., by being arrested without due process). The president is an abstract function, the holder of an office, not a person of flesh and blood. Make this mental experiment: Assume that we could develop a robot that could fill the role of president, and that a coup was made against it. Would that robot then have human rights? Of course not. We have to separate person from office. There is a dangerous and strong tendency today (at least in the U.S.) not to do so. That path leads to monarchy. Do we want to go there?

Therefore we must conclude that the victim of a coup is not a single person, or even a group of persons. Literally, the victim of a coup d’état is the state. This is exactly what coup d’état means: A strike against the state (golpe de estado). And what defines the state? –The Constitution.

Having defined that a coup d’état is directed against the constitution, and neither against an individual nor against an office, things get clearer conceptually. Unless the following events result from a revolution or a foreign occupation (in which case they are typically declared null and void by the constitution anyway), they would qualify as a coup d’état:

  1. Changing the constitution by means not allowed for by the constitution
  2. Someone occupying the top level of any independent branch of government who should not hold that position if the constitution had been followed

It seems to me that these two points capture all cases. As to manner of execution, the use of either force, coercion, or fraud may be part of a coup, but at the very least a swiftness that overruns the checks and balances and puts them before a fait accompli. Coups are a threat to all democratic organizations, not just states. It is to avoid coups that certain meeting rules exist, such as stipulating that for a decision to be valid all participants must have been informed a certain time in advance, and that no decision can be taken on an item not on the distributed agenda.

The ways a constitution can legally be changed are:

  1. By any means explicitly allowed for in the constitution itself, or
  2. the state fails to the point where it ceases to exist, why a constituting assembly is held to re-establish it.

It should be noted that point 2 refers to cases where there are no legitimate office-holders, and no constitutional way to re-populate the offices.

Some of the unconstitutional ways to change a constitution are:

  1. The constitution is overthrown by an insurrection (popularly known as a revolution),
  2. the constitution is changed while under foreign occupation after a war, and
  3. it is altered by the sitting government in ways not expressly allowed for by the constitution itself.

Point 3 would be an autogolpe, or self-coup, but a self-coup could also be to violate the constitution by sitting beyond term limits, without formally changing it. Points 1 and 2 are typically explicitly illegal in mature constitutions.

If we look at Latin America in recent years, several countries have gone around the presidential term limit by first changing the constitution. As long as this change is permissible, it is legal, but if the change was illegal then the old constitution would still be the valid one, and a coup d’état would have occurred.

Applied to Honduras

If we apply this to the Honduran political crisis of 2009, we see that then-president Manuel Zelaya overtly tried to bring about a constituting constitutional assembly, knowing full well that it was unconstitutional. He was thus attempting to commit a coup d’état, but his plans were foiled.  Manuel Zelaya was the coupster in Honduras June 28, 2009.

The crucial days were from June 24. Until then he had (or he believed he had) the support of the military for implementing the unconstitutional national vote that he had labeled a poll. However, June 24 the military had run out of rope; they had to inform the president that they were unable to obey since their orders were illegal.

Until June 24th Zelaya had been attempting to steamroll the other branches of government by using the threat of military force. In fact, he had started threatening force already to try to stack the Supreme Court early in the year, but backed down in the face-off with Micheletti, then the president of Congress. This was most fortunate indeed, since if Zelaya had succeeded, there might have been no legal way to stop his coup.

As things developed, the Supreme Court put legal pressure on the military, and that way they were able to remove Zelaya’s ability to use the threat of force in his coup plans. Incidentally, the new president, Lobo, has now removed the chief justice who stopped Zelaya’s coup.

While Zelaya tried to change the constitution illegally (and he openly admits to his plans, although he doesn’t call his attempted coup a coup), Micheletti has been accused of having come to power in a way not allowed for by the constitution, in a “military coup d’état.” As I linked to in the previous entry, although the events and formalities were those of a military coup, followed by an unconstitutional change of president by Congress (i.e., an impeachment coup), followed by a tacit approval by the Supreme Court, the HRF report concludes that the exact same thing could have been accomplished completely legally and constitutionally.

If all actors had done their duty and dealt with the coupsters according to the law, the result would have been the same: Micheletti would have become interim president.

If we accept the legal analysis of HRF’s report, by their definition this was a coup because of the manner in which Micheletti was appointed. However, this is just a formality. If the democratic institutions had corrected their errors, Micheletti would still have become the interim president. It’s a coup in form, not in substance. With my definition above, if the Supreme Court corrects themselves, there will have been no coup since the definition focuses on substance, not form. (Congress’s report says that the appointment was constitutional and thus no coup at all.)

So why the error in form when it was not necessary, just harmful to the country?

There was surely a degree of panic. Their main ally, the U.S., had seemingly abandoned them and thrown their support behind the coupster, who in turn was a front man for Chávez, an ally of Castro.

There was also uncertainty about who could be trusted. If neither the OAS nor the U.S. could be trusted, then who?

Time was running out. At 6 AM on June 28th the illegal poll would start. It was expected that Zelaya, knowing that time was working against his coup plans, would jump a couple of steps and appoint the Constituyente immediately after the close of the poll – and that the result of the poll was pre-determined. This was later confirmed when fake poll results were found. Furthermore, inside sources have told me that Zelaya planned to appoint Patricia Rodas to arrange the constituting assembly, and that she would return the favor by appointing Zelaya as the Constituyente – in other words, a chief executive that is above all laws.

Does this sound absurd? Well, read websites reporting on the activities of the self-denominated resistance movement. They argue that this is legal. They don’t see any illegality in it. People I have talked to in Honduras who support the “resistencia” have completely swallowed the rhetoric from Radio Globo and others, this new-speak. They fail to recognize that it is demagoguery as old as democracy itself, used already by the old Greeks whenever a tyrant conspired to take over a democracy with the support of the poorly educated people, a mob turned against their own self-interest.

Returning to the events June 24 to 28, the military had opposed Zelaya. Given how they had taken a public stand, failure was not an option. In combination with the uncertainty of who the enemy was (wolves in sheep’s clothing, corrupt officials, and the risk of foreign armed infiltrators), it is understandable that they trusted nobody but themselves with making sure Zelaya could not exert influence in Honduras – which surely is why they exiled him.

From their point of view their mission was to defend the State against a coup d’état by their own commander in chief. This was not a situation of normal police work; this was an existential threat to the State. Therefore I think the decision of the Supreme Court to free the military leadership of responsibility for having sent Zelaya abroad instead of to jail was correct. If the military had followed orders and arrested him, there was a real risk that the coup d’état would have succeeded, given the powerful friends that Zelaya appeared to have (not primarily Chávez, but OAS and USA), who could quite likely have used their influence to free him.

The impeachment coup that HRF concludes that Congress committed has to be seen in the same vein. In the face of an imminent threat (including a military threat by Venezuela), it was imperative that an interim president immediately take control over the government, so that the State could defend itself. With Zelaya in Costa Rica the Supreme Court could not follow procedure in the criminal case against him. This, I presume, created a situation in which ad hoc solutions were taken without much contemplation over the consequences. Bringing up the letter that Zelaya presumably wrote June 25 when an attempt was made to make him resign, is a prime example of an ad hoc solution that back-fired.

Like Javier El-Hage, the author of the HRF report, I used to think that a coup is never justified. However, the case can be argued. Consider murder. Shooting someone in self-defense as a last resort is allowed in every jurisdiction I am aware of. The same standard has to be applied to coup d’états. We have to allow a coup d’état in order to stop a coup d’état, if the threat is imminent and there is no other realistic defense.

I never thought I’d ever say this, but yes, I have concluded that a coup can be defended if done in defense of the State against a hostile coup. This was the case in Honduras; the military on the face of it committed a coup, and according to the HRF report, Congress then committed an impeachment coup, but the objective in both cases was only to defend the Constitution, and nothing they did resulted in anything but making sure that the order of succession was honored, and that the Constitution remained in force.

How can anyone object to that?

PS. As I stated initially this is really of academic interest only, since coup is not a legal term. The legal violations that allegedly were carried out on June 28th in defense of democracy must be weighed against the context of the situation. Also, if neither the constitution was changed (criterion 1 above), nor any office-holder was appointed contrary to the constitution (criterion 2), can it then really be said to have been a coup, regardless of formalities?

Published 2010-04-20 16:40, last edited 2010-04-22 21:00.