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.

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