After all the talk about a constituting constitutional assembly, maybe it would be worthwhile to take a serious look at Honduras’s problems. Let me just first point out that to propose, promote, or assist in prolonging the presidential term limit, or allowing presidential re-election, causes a citizen to permanently lose his civil rights, according to article 42 of the constitution. Many in Honduras are now openly violating that paragraph. The fact is, that holding a “constituyente” is and remains treasonous. Furthermore, there are only 6 articles that cannot be changed legally. They are:
§4, which says that the form of government is republican, democratic, and representative.
§9, which defines the boundaries of the republic.
§239, which says that no president can be re-elected.
§373, which says that changes to the constitution can only be made by Congress by a 2/3 majority, and that two successive legislative sessions must approve the change for it to take effect.
§374, which lists the articles that cannot be changed under any circumstances.
§375, which says that if the constitution is supposedly changed by any other means it will still be in effect. This means that in the case of military surrender and occupation, revolution, or coup d’état that results in a new constitution (as when holding a constituyente), the old one is still in effect, and every citizen of Honduras has an obligation to collaborate in bringing it back in force. This is the final article in the Honduran constitution.
Rather than discussing if those paragraphs should be changed or not, it may be convenient to start from the other end: To first identify the problems to be solved. Next we look for the potential solutions to the problems. Finally we check what constitutional changes are required.
1. There is a lack of domestic peace.
Domestic peace means that different groups in society cooperate for the welfare of all, and compete with other countries in the world economy, rather than fighting each other. It means to make the Honduran cake larger, rather than trying to get oneself a bigger piece of a very small cake.
2. There is rampant corruption.
Honduras has a culture of corruption, which has to change. It has to become socially unacceptable to take or give bribes, or to take advantage of ones position. Of course, for those outside of government it already is, so if there was total transparency and accountability there could be no corruption.
Other issues are crime, and the apparent inability of the justice system to provide equal justice to rich and poor. The fact that some professions don’t pay tax is an apparent injustice, and may violate the constitutional provision for equality under the law (which, incidentally, any Honduran could file a case about at the Supreme Court of Justice if they wanted). There are many, many issues, but in my opinion, the rule of law and to establish domestic peace are fundamental, so I limit the problem list to those two.
Point 1 can be addressed in a similar way as Sweden did in the Saltsjöbaden Agreement in 1938. The Wikipedia description mentions the rules for strikes and lockouts, but omits some key points, namely what motivated the various groups to sign on to it. Every side got something of value to them:
– The party got all union members as party members, which gave them a financial advantage of huge proportions.
– The unions became in charge of unemployment insurance, which gave them members since all employees would join the union.
– The capitalists got peace on the labor market, but moreover, they got the unions as partners rather than opponents. With the huge funds the unions managed, they now have a vested interest in the capitalist system. The same goes for the social democratic party; they, too, were now totally committed to capitalism. (They tried a form of creeping nationalization of companies in the 1980’s, “löntagarfonder”, but that became their downfall and the end of their political hegemony in Sweden.)
The solution for Honduras may not look the same, but it should give something to all major actors that make them all work for the long-term good of the economic system of the country, and that eliminates wild strikes. This social contract can be created totally without legislation, if the unions and employer organizations are strong enough so that they can reign in the extremists on both sides.
Point 2 requires, in my opinion, that there is a stronger separation of powers in the government. Laws and regulations should be required to be general, and never to go into specifics. Congress and its members should be expressly forbidden to interfere in a specific case. In fact, they should not even be allowed to have a publicly stated opinion about how a law or regulation should be interpreted in a specific case. They should only be allowed to speak in generalities; anything else is “minister rule” – a very objectionable state of affairs.
This means that there must be only one power that passes laws, and that power must be absolutely banned from interpreting the laws. Already here we see that the constitution must be changed, since article 205 says: “Corresponden al Congreso Nacional las atribuciones siguientes: 1. Crear, decretar, interpretar, reformar y derogar las leyes;” The word “interpret” must be taken out, and other wording added to forbid “minister rule”.
Article 205 gives a long list of things that falls on Congress, and article 206 says that all but one of these cannot be delegated. Many of these deal with approving or disapproving individual acts of the Executive. The problem is that this opens the door for corruption, since Congressmen may be tempted to act in a way that benefits a certain constituent in return for a campaign contribution. By only allowing the Congress to dismiss the cabinet, for whatever reason, a greater separation is created. This is essentially the idea of parliamentarianism: That the parliament (congress) can fire the cabinet.
This proposal is based on changing the system from a presidential republic to a parliamentarian republic, since that gives more separation of powers, which helps combat corruption, and since it also gives greater stability by separating the roles of head of state and head of government. Case in point, if Honduras had been a parliamentarian republic on June 28, 2009, the Congress could have dismissed the head of government without any consequences for the diplomatic relations with other countries (and the president would not have had enough authority to challenge congress or the supreme court in the first place).
Head of State: President
He (or she) would be elected by the people just like today, and the article that says the president cannot be re-elected can stand as it is (§239). All that needs to change is that some of the responsibilities, as listed in article 245, would be moved to the Prime Minister (PM). The president’s main role would be to represent the country internationally, as a figure head mostly, and to handle the formalities of creating and dissolving cabinets.
Head of Government: The Prime Minister and the Cabinet
The executive is in this system divided on two persons, and the head of government is the prime minister. To his help the PM has a cabinet of ministers (consejo de ministros, consisting of the secretarios de estado). All decisions must be taken by the cabinet in session, not by the PM or any minster personally. All items to vote on must be on an agenda distributed a certain time in advance, about 2 days, to give a chance for reflection. It may be convenient to have the President to preside over the meeting of the cabinet, with its 13 members (1 PM plus 12 state secretaries, or ministers), but without giving the President any vote except as a tie breaker.
The cabinet, but not the president, can propose laws to Congress, and submits a budget for congressional approval every year.
The president invites one person to form a cabinet, and thus be PM, normally the leader of the biggest party after the election. If this person is unable to get support by a majority of Congress, he or she will report the failure to the president, who will then charge someone else with trying, until a cabinet has been formed. The cabinet will sit until it no longer has the support by the majority of Congress. This could come after an election loss, or if a majority of the members of Congress vote against the Cabinet’s request on some important issue (most important of which is the budget). The President will then have to ask someone else to form a new cabinet. In some countries a new election is usually held in this case, but not in e.g. Sweden. An interim cabinet, even a minority one, can there rule until the next ordinary election. This seems to work well.
This is the new feature compared to the present system. Most of the President’s responsibilities, and possibly some of Congress’s, would be moved to the Cabinet.
Judicial power: The Supreme Court
The court should be the only power authorized to interpret laws. They should not be allowed to write laws, but should be expected to comment on proposed laws. This is pretty much how it is today. It may be convenient, though, to create (if it doesn’t exist) some administrative court system, charged exclusively with overseeing the way the government administration implements laws and regulations visa-vi individuals and companies.
In the US and I suppose in Honduras, constituents can turn to their elected politician for help against the government if need be, the idea being that if the politician does not help he or she can be voted out. Obviously this system does not work very well. Therefore I propose to instead use the Swedish system, in which the politicians are expressly forbidden to intervene, but there is instead a judicial review of the actions – at no cost to the plaintiff, obviously. This creates a much better separation of powers and is thus more in line with the ideology of Count Montesquieu.
Legislative power: Congress
The legislature adopts laws, the state budget, and decides taxes. Laws must be general in nature, and no law can be created for a specific purpose. The Congress cannot interpret the laws it creates. A separate Constitutional Commission reviews all proposed laws to assure that they agree with the constitution before they are voted on. All bills are presented publicly in their final form for an up or down vote at least, say, 7 days before the vote, except in a national emergency.
The Congress should get the new power to be able to expressly fire the prime minister (in other words, the cabinet).
Is it Possible?
In my judgment, YES, since the form of government will remain “republican, democratic, and representative.” It will in addition to that be parliamentarian, but that is a sub-category of “republican, democratic, and representative” so it should pose no problem with article 4. The other 5 unchangeable paragraphs are quite obviously not affected, so this would be constitutional as I see it.
What needs to be changed?
The changes are probably limited to Title V, the powers of the state. Most of the changes will be in Chapter VI, the executive power, but there should be changes, as mentioned, also to the legislative, and probably also to the judicial.
The path towards accomplishing this is long. The first step should be to write a report on the background, and explain in clear detail what the objective is with the change. This should involve or be followed by a national debate, on various levels.
The next step is to turn those objectives into a draft new constitution, by proposing the exact changes to be made to the existing one. In this step it may be appropriate to hold an academic conference with international participation, to gather the brightest constitutional scholars from around the world to scrutinize the proposed changes. The purpose is to find potential loopholes and flaws, so that the text may be refined as much as possible.
The final step is for Congress to vote on the change, as per article 373.
What about the Constituyente?
If this is possible, then why do some segments in Honduras argue that it is necessary to hold a constituting constitutional assembly (which as we have seen is patently unconstitutional)? What is it that they deem necessary to change, and that cannot be changed without such a, frankly, coup d’état?
They will not say. They offer no arguments. Their draft of a new constitution is not made available for scrutiny. However, we can deduce that it simply has to include making the president re-electable, since everything else that has any significance can be changed constitutionally. This matches what I have been told via a source in that group: They are discussing prolonging the maximum terms to between 8 and 16 years, from 4 today.
So which is better (disregarding the constitutionality for a moment)? A president is similar to an elected king in Medieval Scandinavia, I’ve heard (I wasn’t around). They both had a cabinet and a congress, but the congress could not dismiss neither the head of state nor his cabinet. Scandinavian republics (Iceland and Finland) have chosen not to return to that system, but instead to base their constitution on the parliamentarian monarchy as model, just replacing a hereditary kingship with an elected president. It retains more power to the people’s representatives, the parliamentarians, the congressmen. It allows for the immediate dismissal of the government for political reasons, unlike the present system in Honduras (the same as the US). All four countries in the top of the league when it comes to low corruption (New Zealand, Denmark, Singapore, Sweden) have a parliamentarian system of government.
It sure seems that if democracy is the goal, parliamentarianism is the way to go. This leads to the inevitable conclusion that those advocating for a constituyente in Honduras are – apart from traitors to the constitution – simple demagogues who are just out to enrich themselves, taking advantage of the people who don’t understand better.
I have argued for years and years that Honduras needs reform, and possibly also constitutional reform, and that the extreme social differences constitutes fertile ground for demagogues to come in. I have warned of revolution, since the situation was similar to that in Finland when my grandfather grew up, with the fighting between the red and the white around 1905. In 2009 the events in Honduras proved me right, unfortunately. The good thing about it, is that there is now a general acceptance of the need for reform. The ground is fertile for improving conditions now. The rich understand that they have to negotiate, give and take.
The time for a new social pact is now. This is a golden opportunity for Honduras.
The leaders of the workers and other groups would be well advised to cease the opportunity. Those that argue for confrontation are not your friends! They are demagogues who just want to fill their own pockets.
Hondurans, you will know your friends this way: They will try to create peace and justice, they will fight corruption, and they will try to establish a social pact that makes everyone the winner.
If the majority supports those goals, Honduras will be among the 40 richest countries in the world within 40 years, of that I am certain.