Tag Archives: constitution

U.S. Constitutional Amendment proposal

The occupation of Wall Street, or actually a park a few blocks away, has shed light on the democratic deficiency in USA. The main reason is the corruption of the politicians. Nobody can serve two masters, says the Bible, but the Congressmen are expected to serve both the tax payers who are paying their salaries, and the donors who are paying their election campaigns. Since the latter is the larger post, no wonder they get the lion part of the politicians’ attention. The focus of reform must therefore lie on ending the institutionalized political corruption in the legislative body of the union. This requires attention to several different details at the same time, which I will address in the form of a proposed text for a constitutional amendment.

Paragraph 1. The first ten Amendments of the Constitution shall be named collectively the “Bill of Human Rights” and the word “person” shall refer to all living human beings from the moment they are born. Comment: Since the 19th Century a Supreme Court precedent has given corporations the same constitutional rights as human beings. This article is designed to undo that precedent and return the power to the people.

Paragraph 2. Congress shall make no law relating to specific cases. All laws shall be of a general and universal nature, and apply equal for all cases where the circumstances are similar. Neither a chamber of Congress, nor an individual member of Congress, shall express an opinion on a specific case, nor on the application of bills decided on by congress once they have become law. The specifics shall be formulated in regulations emitted by the administrative agency charged with implementing the law. Comment: By removing the possibility for congressmen to influence specific cases, a significant reason for bribing them is eliminated.

Paragraph 3. An administrative court system shall be established by Congress. Individuals and legal persons shall be able to turn to this administrative court system to challenge the implementation of regulations based on laws, or the implementation of regulations in actual administrative practice, including in individual cases. Decisions shall be appealable to Appellate Administrative Courts, and the highest level of appeal shall be the President’s cabinet, subject to their approval of attending the case. Comment: This will replace the practice of turning to ones member of Congress in case of trouble with the federal government, a practice that invites corruption.

Paragraph 4. Every member of Congress has a right to an up or down vote on the floor of the chamber, in the same session, on all proposals submitted before noon on the 30th calendar day since the inauguration of a regular session of Congress. Comment: This is designed to force Congress to function better than today, by removing the possibility to indefinitely stall proposals. It removes the possibility for a single member to exert undue influence, and thus it eliminates the possibility for special interests to bribe a single member to do just that.

Paragraph 5. All legislative proposals intended to become law must be reviewed for constitutionality in its final form before an up or down vote is taken on the floor of a chamber of Congress. This review shall be made by a Constitutional Board, consisting of 6 members all holding research doctorate degrees in Law, proposed by the House and approved by the Senate for 12-year staggered terms with one replacement every second year. The board can only make written statements and may only express opinions on legislative proposals as a group. The board may not express opinions on bills that have already become law, that being the exclusive privilege of the judicial branch. Comment: This is designed to both fight corruption, and improve the function of Congress, and improve the judicial situation of the country by eliminating the possibility of unconstitutional bills becoming law. Since the final draft must be reviewed, it excludes the kind of last-minute additions that are the main method by which pork is inserted into bills as payback to campaign contributors.

Paragraph 6. The President of the union shall appoint a cabinet of no less than 5 and no more than 20 members, who shall be approved by the Senate, having the right to an up or down vote within 20 days after the nomination, counting only the weekdays when the Senate is in session. All decisions shall be taken by the cabinet in quorum with at least half of the cabinet members apart from the President required at the meeting to have a quorum. The only exception is in the case of a declared war or a state of emergency, in which case the President can decide on urgent matters alone. As soon as circumstances permit, but not later than 72 hours after the decision, the decision and the justification for it and the nature of its adoption shall be communicated to the members of the cabinet who were not present when it was taken. The Vice President shall be included as a cabinet member without portfolio. In the case of an equal number of votes for and against a proposal, the President has the deciding vote. Comment: This is designed to speed up the taking office of the new administration after a presidential election, as well as to make the executive decision-making more democratic, and less prone to errors of judgment of a single person.

Paragraph 7. Members of Congress represent all the people of the United States, and they all have a right to a reasonable contact with any member of Congress who is involved in a committee that deals with the policy issue that the person wants to discuss. This right extends to interest groups formed by individuals, provided they have only individuals as members, that the group has a democratically elected leadership according to the principle one member – one vote, and that the group does not accept donations from for-profit organizations. Corporations, corporate interest groups, or lobbyists employed by corporations may not discuss policy with members of congress in closed meetings, only in meetings open for the public. Comment: This is another way to make corruption harder.

Paragraph 8. Political parties have a right to a tax-funded campaign contribution that is proportional to their result in the previous election of the same kind, i.e., for the House, for the Senate, and for the President. The result shall be counted as the nationwide percentage of the votes, not as the seats won. The size of the contribution shall be proposed by the President before each election, and given an up or down vote by the Senate within 20 session days. The Parties shall be in charge of distributing this money to their candidates’ campaigns as they see fit, but ultimately it is the Parties themselves through their chairman who is responsible for making sure the public funds are used in accordance with election law. This shall be the only financing for the general election campaign except for new parties since they are not receiving any funds. Comment: This complements the measures against corruption by providing another way to finance a campaign.

Paragraph 9. Public servants in a position to make decisions on individual cases in which a regulation based on a law is implemented, have a personal responsibility to make sure the regulation and the law are being implemented justly and fairly as the lawmaker intended. Comment: This is designed to assure that the implementation of the laws are not arbitrary, as a complement to the administrative court system, to which the civil servants may have to answer if they misbehave. It is thus designed to prevent them from being corrupted instead of the politicians.

Paragraph 10. Cabinet members in charge of [key secretaries, maybe the 5 main ones] will appear individually before the House to answer questions at least once per congressional session, but no more than once per month. Comment: The purpose is to increase the transparency in governing, and to make the elected representatives more able to follow up on how laws are implemented.

Paragraph 11. Every U.S. citizen shall be entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information. The right of access to official documents may be restricted only if restriction is necessary with regard to: the security of the Union or its relations with a foreign nation or an international organization; the central fiscal, monetary or currency policy of the Union; the inspection, control or other supervisory activities of a public authority; the interests of preventing or prosecuting crime; the economic interests of the public institutions; the protection of the personal or economic circumstances of individuals; or the preservation of animal or plant species. Comment: This is to further transparency in governing. The wording is taken from the Swedish constitution where this provision has been seen as a central tenet since 1766.

That is my proposal, a draft. Note that there is not one single measure to end corruption, but a plethora of changes designed to circumvent the different practices and cheats that are being used, at the same time making it both difficult and rather meaningless to bribe a politician. I hope to receive comments, although I know it is hard to register (go to bottom, there is a tiny link; sorry for having to do that but the spam was killing the blog and I haven’t had the time to find a better solution). You can also comment on Facebook.

Saving Democracy in Latin America

Under the leadership of Venezuela’s president and former failed military coupster Hugo Chávez, self-declared Marxist, a number of Latin American countries in the ALBA alliance are moving towards what they call more “popular democracy.” Fidel Castro calls it communism, though.

The call for this “popular democracy” has reached also Honduras, where former president Manuel Zelaya argued that the people have a right to decide their own destiny, and therefore nobody should object when he was to hold a referendum that would lead to the constitution of the republic being thrown out. Never mind that the poll was fixed, and never mind that it had not been decided in democratic order. If The People does something, it has to be approved. And now the new president, Porfirio Lobo, is using the same arguments, the same words, while trying a different strategy that at the end of his term will lead to the same result: The constitution being thrown out so that he can be re-elected.

While neither of the two gentlemen say openly that their re-election is the one and only purpose of the maneuvers, one can deduce as much, since no other purpose would explain their acts.

I’m the first to admit that Honduras needs some reforms to decrease corruption and increase the rule of law and democracy. What these presidents are doing is, however, the polar opposite – while managing to convince part of the population that they are doing it to help them. It’s the classical trick of popular tyranny, practiced for thousands of years.

Forms of government, with Presidential Republic - the present form of government in Honduras - in the center.
Forms of government, with Presidential Republic - the present form of government in Honduras - in the center. Chávez, Zelaya, and the boys want to go left and make the parliament weaker. Experience shows more democracy is found to the right, with a stronger parliament. Click for full size.

Honduras – as most of Latin America – has a Presidential Republic form of government today (center in the illustration). Chávez’s “Socialism in the 21st Century” changes the constitutions to undermine the democratic institutions and introduce organizations that are outside institutional control (left in the image). Adolf Hitler did precisely the same thing to undermine the democratic checks and balances. They claim that it is done to give more popular democracy, but it is done at the expense of rule of law. The only one who really benefits is the president – now turned dictator.

A change that can be made totally legally in Honduras, without running afoul of the articles “cut in stone”, is to go to the right instead. A parliamentary democracy increases the rule of law and decreases corruption, there is empirical data to support that. It also provides a better protection against coups such as the one attempted by Zelaya.

The democracy can thus be strengthened by Congress, today, without changing the fundamental form of government. It will still be a Republic, the President will still be separate from Congress and elected directly by the people for a single four-year term. The only change is that his cabinet must be approved by Congress, and that Congress can fire them if they disapprove of their work. Also, the decisions must be taken by the Cabinet in a quorum, although formally it is the President as the head of the executive who will sign off on them.

Democracy in Latin America is under attack. With this little graph I hope that I have illustrated what can done to protect and improve democracy on the continent instead.

An earlier post on a similar topic: http://blog.erlingsson.com/?p=3319

Why Parliamentary Republics beat Presidential Republics

Parliamentary republics have separated the roles of head of state  and head of government. They are thus quite  similar to parliamentary monarchies, but the head of state is an elected president rather than a king or queen. Parliamentary constitutions are based on the premise that all power emanates from the people, and that the power is vested in their elected representatives in congress between the elections – just like the shareholders of a corporation elect a board of directors to manage business between the annual meetings.

Parliamentary constitutions are based on the principle of the sovereignty of the people, whereas presidential republics are based on the principle of separation of powers.

In practice this means that the government is dependent on the support of the congress, since the congress has the power to dismiss the head of government (and thus all of his cabinet). While in a presidential republic it would take a recall vote to depose the president (and thus all of his cabinet) for political reasons, in a parliamentary republic the cabinet can be dismissed by a vote in the parliament on short notice. This gives more political control over the government, and gives a voice to a larger segment of society.

The parliamentarians are elected in such a way as to represent the full range of diversity in the country, and proportional to the actual situation in the electorate. This is important; there cannot be one-person districts, because if so, a large percentage of the constituents may end up lacking representation. How large? Well over 50%, perhaps up to 67% or so, thanks to gerrymandering. If one third rules over two thirds, is that democracy? In a parliamentarian system with proportional representation, all parties larger than some 5% of the electorate can be represented in the parliament in proportion to their actual support.

A president only needs 50.01% of the electorate to win, and less if the vote counting is not proportional (as in the USA). Furthermore, presidential republics tend to be two party systems, just one up from one party systems. Thus, to buy the presidency it is enough to buy two candidates. It is self-evident that it is much harder to buy the government in a parliamentarian system, since you would have to buy the support of a majority of the congressmen.

Empirical Evidence

In a report from the World Bank titled “Accountability and Corruption – Political Institutions Matter” (World Bank Policy Research Working Paper No. 2708, 2001) the authors conclude that:

“The main results show that political institutions seem to be extremely important in determining the prevalence of corruption. In short, democracies, parliamentary systems, political stability, and freedom of press are all associated with lower corruption. Additionally, we show that common results of the previous empirical literature on the determinants of corruption – related to openness and legal tradition – do not hold once political variables are taken into account.” (my emphasis)

Also the political stability is higher in parliamentary systems. In How Democratic is the American Constitution? (2001), Robert A. Dahl writes that since 1950, only 22 nations have managed to remain stable with no coups or other discontinuity of the constitutional order. Of those 22, only 2 are presidential republics (USA and Costa Rica). The remaining 20 are parliamentary, 11 republics and 9 monarchies.

As for rule of law, see a previous post on Rule of Law Index 2010.

There is thus empirical evidence that parliamentary democracies:

  • offer better protection against coup d’états
  • foster less corruption
  • foster more rule of law

Amend the 14th amendment!

The 14th amendment to the constitution of USA says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”

The reason for the text passed 1868 was to explicitly make former slaves citizens, but the problem now is that it acts like a carrot, attracting illegal immigrants from Latin America. The immigrants figure that even if they have to live as illegals in the US their entire life, at least their children will become citizens and can stay legally. It is thus an immigration loophole. When the normal process takes upwards of 20 years, the difference is not so big to this illegal process. Even if it takes a generation, a generation is only about 20 years or so, right?

It also flies in the face of international law. International law, valid in the US as well, states that every child gets the citizenship of his or her parents. For instance, a child born to a woman with US citizenship abroad will still get US citizenship. Thus, the US applies that principle, which now is the international norm. There is no reason to hold on to the rule from 1868.

Thus, since there are strong reasons to abandon it, and no reason to keep it, a constitutional amendment should be introduced to change the rule of citizenship explicitly to be determined by the parents’ citizenship(s), not the country of birth. (Note that amendment 14 contains also other provisions and sections, that serve a purpose.)

Reforming Honduras Without a “Constituyente”

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.

Potential Solutions

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.

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.

Truth Commission in Honduras

The Guatemalan ex vice president Stein, who Pepe Lobo put in charge of forming the Truth Commission that is to investigate what exactly happened in the crisis that started some time in early 2009, culminated on June 25 to 28, and ended either with the November 29 elections or the January 27 inauguration, depending on how you view it.

However, words of caution have been raised today saying that Stein was too close to Zelaya, that he may be a stooge for Insulza in OAS, and that his recent words that the objective of the commission is to propose changes to the Constitution, risks making him appear as little more than a continuation of the “Cuarta Urna”-project. That is the term used for the referendum on creating a Constituting Assembly, something the Supreme Court of Justice in Honduras has found unconstitutional.

Specifically, Stein mentioned that the role of the military in Honduras’s Constitution might need to be looked at. As is well-known, the deposed president, Zelaya, had turned to the military for help with police work, rather than giving the necessary resources to the police for doing their job. This is allowed in Honduras, but Zelaya made it the norm rather than the exception. It is frowned upon internationally, since the military are not trained in the human rights issues that the police must be well versed in. Still, judging from TV footage the military has routinely been more passive than the police in the riots after June 28.

Constitutional Crisis

In fact, in my personal opinion, the passivity of the military may actually be the singular cause of this crisis going international. The Supreme Court impounded the illegal ballots and left them in the custody of the military. On June 26, Zelaya went with a mob to retrieve them, and the military did not offer any resistance.

If the military had done their duty on that occasion, and prevented that the president took the ballots by any means necessary, as they were supposed to, including staring down death if it came to that, then the crisis would have ended very differently.

What actually happened was that Zelaya took the ballots, and his followers distributed them for the illegal referendum on June 28. This forced the Attorney General to request, and the Supreme Court to issue, an arrest warrant for Zelaya. He was arrested at dawn, just after daybreak as can be seen on photos, on June 28. The military as a cautionary action exiled him, which the Supreme Court in January declared justified as an action of national self defence. Congress swore in a new president. This ended the constitutional crisis in Honduras on June 28, but it created an international problem for the country, since the rest of the world declared it a coup and froze the diplomatic relations.

What could have happened if the military stopped them from taking the ballots is that no referendum could have been held, and thus Zelaya would have remained in office, Honduras would have remained recognized internationally, but the constitutional crisis would have continued. Zelaya had already violated the Constitution in such a way that there was ground for his arrest and immediate removal from power, but the U.S. had stated that they would consider any such act a coup, no matter how legal it was under Honduran law. So status quo would have continued, with a bankrupt economy, no budget, and a general election approaching. The fact that there was no budget for the general election was a big concern for all parties.

However, the above hypothetical peaceful scenario is very unlikely. It is well known among people with close insight into the Zelaya presidential palace that they were not preparing to leave power in only 7 months. It is just completely unbelievable that Zelaya and that mob would have left the air force base and the ballots peacefully. There would have been a bloodbath, and Zelaya would have blamed it on the military in an attempt at getting rid of those who did not obey him.

One must not forget that when the present Supreme Court was appointed in early 2009 (they sit for 7 years), Zelaya was not happy with the candidates to the 15 seats. He demanded that he appoint justices, but Micheletti among others refused to give in to his demands – even as he threatened to send out the tanks on the streets. Yes, Zelaya threatened to make a military auto-coup! His most outrageous demand was that the wife of his Minister of the Presidency was made chief justice in the Supreme Court.

The Congress did not yield. If they had, there would have been no way of legally stopping Zelaya’s violations of the Constitution in June, or him dissolving the Constitution and creating a Constituting Assembly with him as president and thus supreme ruler of the country. Of course, he would have used newspeak to describe those actions, since the world apparently only cares about words, not legal realities.

In conclusion, even though it theoretically would have been possible for the military to prevent having to do the action to prevent a coup on June 28, by resisting Zelaya on June 26, a final showdown would probably have been inevitable. From a military strategic perspective they acted correctly, refusing to take the fight on the enemies terms, and instead taking the fight on their terms two days later.

The only way in which things could have been better in this aspect is if the court had left the ballots in the custody of the police instead, and or the police had arrested Zelaya. But this does not require a change of the Constitution.

Diplomatic Crisis

Let us look now at the diplomatic crisis. It started the same day as the constitutional crisis ended, June 28. The reason for it was that the world mistook the action to end the constitutional crisis and the coup attempt by Zelaya for a military coup in itself. The world thus saw a successful white coup when in reality it was an unsuccessful red coup.

Could this have been avoided if the Constitution had been different? Yes, most certainly. Namely if the country would have had a parliamentarian system of government, as is common in Europe. The president in a parliamentarian republic is the head of state, and is thus representing the country internationally, but it is the prime minister who is head of government. In such a system Zelaya as president would not have had the power to create the Constitutional crisis that he created, and as prime minister he could have been dismissed without causing any diplomatic crisis.

If the president in a parliamentarian republic would be thrown out like Zelaya was, it would of course have caused a similar reaction internationally. The key to avoid that from happening, is not to give the president very much authority. If he cannot cause problems there is little reason to depose him. That is the way it is a monarchy such as the Kingdom of Sweden; the King (or Queen) has no power at all. Thus there cannot be any reasonable reason to dethrone him.

I must admit that I still haven’t read the entire Constitution of Honduras (it is quite long and not that well organized), so I don’t know if such a change would be possible. But that’s another story, one that I will probably have reason to return to when the Truth Commission starts working.

Media: Latin America News Dispatch. Statement from the Honduran NGO Pro-Justicia, pointing out biases and concluding that Hondurans have to be alert to defend their democracy and freedom without having confidence in that their government does it, like the previous one did.