Harvard law professor Noah Feldman has, together with co-authors, written a report to the Honduran Truth and Reconciliation Commission (CVR from its Spanish name) regarding the constitutionality of the events before, during, and after June 28, 2009, when the president of the republic, Manuel Zelaya Rosales, was removed from office and flown to Costa Rica. Following this blog’s tradition of archiving a copy of all important documents related to that event, the report is duplicated here: Reporte a la Comisión de la Verdad y la Reconciliación de Honduras: Asuntos constitucionales (English version). It is with a special interest that I read this report, since I proposed a truth commission back in July 2009, and Micheletti’s negotiators brought it up in their counter-offer.
After reading the executive summary I find the report to contain exactly what I had expected. First, that a lot of people kept their silence and didn’t reveal what they knew (the fact that CVR requested a meeting with me, whose only involvement has been writing this blog after the fact, amply illustrates that they have grasped at straws for getting to the truth). They have not been able to determine if the secret arrest warrant was issued the day it was dated, or afterwards in a CYA effort. This means that the report does not add any new facts, which is a pity. As for the legal analysis it is as could be expected, given that no new facts came out. Finally, since this is a legal and not a political study, they wisely refrain from evaluating what it means in political terms – something that I don’t have to refrain from here.
They identify three risks to modern democracy, not just in Honduras but generally, all exemplified from Honduras 2009. They are first that the executive office-holder abuses power and usurps powers from the other branches of government (it is clear that they see “modern democracy” as synonymous to “presidential republics”, because this is obviously something that cannot reasonably happen in a parliamentarian democracy). The second is that of an unconstitutional transfer of power, e.g. by military intervention. The third is the lack of clarity as regards the roles that the different institutional actors should assume in a crisis, due to poorly defined constitutions and laws. The report is structured along these three lines of analysis.
Zelaya made an “autogolpe”
In the executive summary they clearly state that president Mel Zelaya violated direct court orders before being deposed, and that the Supreme Court had a constitutional and legal method of deposing him. Having said this, they seem careful not to say that the president was obligated to obey the Supreme Court. In any constitutional democracy it is self-evident that the president is obligated to obey the Supreme Court, so by not stressing that point they are in fact implying that there is something wrong with the constitution of the Republic of Honduras – i.e., that it may give the president a position equivalent to an elected king with a one term limit. This is what I mean with them sticking to the legal and refraining from opinions on the political. Put in plain English: Anyone who is defending Zelaya’s actions and claiming that he should have been restored to power is implying that Honduras is not a constitutional democracy, since if it is a constitutional democracy, then Zelaya de facto made a coup d’état, an “autogolpe”. That is the political conclusion that the legal scholars refrain from expressing, but which can be read between the lines.
When it comes to the act of Congress to depose Zelaya, they stick to their task and discuss only the constitutionality or not thereof. Their conclusion is that Congress most likely did not have that authority, although the Constitution is vague and fails to clearly indicate which institution has what authority in this situation. Therefore it becomes necessary to make a political evaluation of intent, given the basic premise that Honduras is a constitutional democratic republic. At least in the executive resumé they do not consider the fact that Congress is the highest representative of the people between elections, given that Honduras is a representative democracy. In a constitutional crisis where the executive has violated the Constitution and failed to obey the Supreme Court, and there is a lack of clarity in the Constitution and laws of how to proceed, the one and only institution that can act independently is the Congress, since they “are” the people between elections, and all power emanates from the people.
Although the authors do not make this point, they imply it in the recommendation section. An important idea with the commission was to make recommendations of how to avoid a repetition of such a crisis, by strengthening the legal framework of the country. They recommend that the Supreme Court gets a clearer role as arbitrator between the different branches of government, and a stronger position visa-vi the executive. They further suggest that Congress should get an express role in the removal of the President.
It is interesting to note this, since the interim presidency all the time claimed that it already was that way. Here is a philosophical question: Does the relative power have to be set by laws, or can it be set by precedent? In the case of USA it was set by precedent, in 1803 (see “From strengthening institutions to a coup: Explaining the ouster of President Zelaya as an outcome of a game of institutional emergence“). All that it takes for this to become precedent is that it is accepted. To first say “no we don’t accept it because the law is not explicit” and then say “we should change the law so it explicitly becomes that way” is hypocritical. As long as the law is not explicitly forbidding it, it can be established by precedent, as was the case in Honduras 2009.
What will CVR say?
Their report is due any day. They ought to include the political analysis to the legal study. In this blog post I have indicated how I think their analysis should go. But the question is if they have the balls to challenge the entire global community, who called this a coup d’état. Do they dare? Can their careers survive it? That’s the question.
Reading the main text of the analysis, the report appears even more in line with the thinking of the supporters of the interim presidency. Could it be that the executive summary is adopted for political reasons to agree more with the official opinion of OAS and others? If so it is a shame. A truth commission should not look over its shoulder, but be the standard-bearer for independent analysis. In my humble opinion their conclusions are precisely what I have concluded since the very first posts on this blog. But now it is official.
“Concluimos que la utilización del Instituto Nacional de Estadísticas para el propósito previsto en estos decretos fue ilegal bajo las leyes de Honduras.” (We conclude that the use of the National Institute of Statistics for the purpose of these decrees [holding a referendum] was illegal under the laws of Honduras.)
“Adicionalmente el Acuerdo 027-2009 violaba la normativa constitucional y legal relacionada a la utilización de la Fuerzas Armadas.” (Additionally the agreement 027-2009 violated the constitutional and legal norms for the use of the armed forces.)
“También concluimos que los Decretos Ejecutivos y el Acuerdo llamando a la “consulta” o “encuesta” probablemente no fueron conforme a derecho.” (We also conclude that the executive decrees and agreement calling for the referendum or poll probably were not in agreement with the law.)
“Estos artículos parecerían prohibir una Asamblea Nacional Constituyente bajo el orden constitucional actual.” (These [constitutional] articles would seem to forbid a national constitutional assembly under the present constitution.)
“Nosotros concluimos que el Presidente Zelaya Rosales ilegalmente incumplió con las órdenes judiciales del Juzgado Contencioso Administrativo.” (We conclude that president Zelaya Rosales illegally disobeyed the judicial orders from the contentious-administrative court.)
“Al menos algunos de los cargos contra Zelaya Rosales parecen estar bien fundamentados.” (At least some of the accusations against Zelaya Rosales appear to be well founded.) [They exemplify with abuse of authority for disobeying a court order.]
“Nuestro análisis aquí concluye que el intento legislativo de destituir a Zelaya Rosales de su cargo probablemente violó la Constitución.” (Our analysis here concludes that the legislative intent to depose Zelaya Rosales probably violated the Constitution.)
“Por lo tanto el nombramiento [de Roberto Micheletti Bain] siguió lo establecido en la sucesión constitucional especificad en el artículo 242.” (Therefore the appointment [of Roberto Micheletti Bain] followed the constitutional succession order established in article 242.)
About the Armed Forces
“Por lo tanto, los comandantes de las Fuerzas Armadas observaron la ley cuando rehusaron a asistir con la Cuarta Urna.” (Therefore, the commanders of the armed forces were following the law when they refused to assist with holding the [referendum].)
“Las Fuerzas Armadas violaron el artículo 102 de la Constitución cuando expatriaron a Zelaya Rosales.” (The armed forces violated article 102 of the constitution when they expatriated Zelaya Rosales.)
“También dejamos nota que los oficiales militares fueron exonerados de su acusación penal en enero de 2010. No expresamos ninguna opinión con relación a este caso penal. Nuestro caso está limitado a la discusión de la legalidad de las acciones. La pregunta sobre si los oficiales militares son responsables criminalmente por la expatriación de Zelaya Rosales es distinta a la pregunta de si la expatriación fue legal.” (We also take note that the military officers were exonerated from their criminal accusations in January of 2010. We are not expressing any opinion in relation to this criminal case. Our task is limited to discussing the legality of the actions. The question of whether the military officers are criminally responsible for the expatriation of Zelaya Rosales is a different question from that of whether the expatriation was legal.)
After reading the analysis of the constitutionality of the events, it appears to be the conclusion of the authors that president Zelaya Rosales was clearly acting outside the Constitution and the laws, as were the military when they expatriated him, but that the Congress was balancing near the margin of the Constitution (“probably violated”). Note again that this analysis is strictly based on the constitutional legality, and does not include neither a political analysis, nor a criminal analysis.
For a political analysis one has to evaluate the alternatives, and consider what they would likely have led to – in this case, and as a precedent. Failure to stop Manuel Zelaya Rosales would have led to the executive being above the law. He had amply demonstrated that he was not going to accept any order from anyone. There was no other tool at the disposal of Congress and the Courts than the use of force. The report finds that the Supreme Court had the legal right and due cause for having Zelaya arrested, and that the arrest order to the military was constitutional.
The point where the constitutional order was broken (after it was broken by Zelaya) was when the military expatriated him. It left the Congress and the Supreme Court with a very difficult situation to handle, in which both the president, and those charged with arresting the president, were acting unconstitutionally. It was a fundamentally political crisis, not legal, at that point. Consider the alternative to allow Zelaya back as president. He would surely not have agreed to return without having all his adversaries arrested first. The legal case against him would have been dead. The expatriation of him put the entire establishment before a fait accomplis: the military had figuratively burned the ships. From their perspective this was desirable, since they had openly defied him, refused to obey his orders. They knew that if he remained president their careers would be over. They had a personal interest in making sure that there was no chance for Zelaya to survive the crisis in office.
Personally I would not be surprised if they got tacit support from different individuals, within and even outside the country. It is no secret that Zelaya is allied with one of the greatest threats to peace in the Western Hemisphere: Hugo Rafael Chávez Frías. It is furthermore no secret that Chávez Frías has conspired to overthrow a number of democracies using the same unconstitutional method as Zelaya Rosales attempted in Honduras (starting with Venezuela in 1999). In none of the other cases has the democratic checks and balances managed to defend the constitutional order. Although one would have preferred that Honduras’s military officers had stuck to the legal route of actions, one must therefore have a certain sympathy for their reasoning that “attack is the best defense”. There is no guarantee that the law would have prevailed if they had followed it.
Whatever one thinks about the military’s actions they did not assume power, and the actions of Congress are defensible under the circumstances as a precedent for a case not contemplated under the Constitution. That is the bottom line that emerges from a political analysis of this legal report, and that makes it perfectly clear that the deposal of Zelaya Rosales was not a coup d’état. (While the authors of this report have not been able to determine if the secret arrest orders were issued the days they are dated, or created when they were made public in order to cover up a military coup, I am assuming that they were for real, for 3 reasons: First, because they had legal backing and it would be illogical to use extra-legal methods when one has legal methods at ones disposal. Second and third, because I have it from two different sources, who don’t know each other, that they knew about the secret arrest order already June 25 or 26; both are family members of people involved in the events. Of course they could be lying, but what sense would that make when they had the law on their side? Therefore I consider it far fetched to believe that it was a military coup that they were trying to cover up.)
When the Truth and Reconciliation Commission report is published, the last chapter of the events of June 28, 2009, will be written. That marks the end of the political events, the final step in the implementation of the Guaymuras-dialogue agreement, the San José-Tegucigalpa Accord. It has been implemented meticulously by first interim president Micheletti, then president Lobo, even though ex-president Zelaya backed away from it when he realized that Congress would not vote him back as president.
What remains is to learn from this event. Honduras has already amended its constitution as regards popular referendum, but as this report points out in its recommendation section, also the new wording is insufficiently clear. The recommendations in this report should be taken very seriously by the Congress in Tegucigalpa, both those regarding crisis solution, regarding the removal of a high office-holder especially the president, those regarding changing the constitution, and those regarding popular referendum. All of those parts were involved in the crisis of 2009, and all of them are important to protect the democracy against the kind of attacks launched by Hugo Chávez and his Cuban allies; their goal is to take over all countries in Latin America, installing Quisling regimes that are beholden to “Socialism of the 21st Century” (i.e., communism).
The strategy of Castro and Chávez is to win democratic elections with the financial backing of the Venezuelan state (oil revenues), and then once in office call for a national constitutional assembly to rewrite the constitution, creating a structure that will enable their Quisling to stay in power indefinitely. Only when the power is secured will they complete the transformation to communism, as they appear to follow Trotsky’s strategy of spreading their power first before consolidating communism. (In fact, in 2007 Chávez himself confessed to being a Trotskyist!)
Honduras was the first major set-back in their plan. The attacks continue unabated, and the war is not yet won. Millions of dollars are still being spent to try to bribe their way in. It is a dangerous and volatile situation, and the more the world punished Honduras economically after the alleged “coup”, the more they pushed Honduras into Castro’s and Chávez’s fold. The wise thing to do now, when this legal report is out, is to acknowledge that Manuel Zelaya Rosales was in clear violation of the Constitution, that he had to be arrested and removed from office to preserve constitutional democracy, and that while a clear error of judgment was made in expatriating him it, it does not change the equation: Zelaya could not be left in office. We have to separate the two issues, the expatriation and the removal from office. We can condemn one while applauding the other. It was, frankly, stupid to expatriate Zelaya Rosales, but the action of Congress can be defended as attempting to find a way out of an impossible situation not contemplated by the Constitution, setting a precedent that can well be codified in a constitutional amendment now, following the recommendations of this report.
Published 13:37 June 9, last updated 07:59 June 10.