Asil insight

ASIL Insight
July 29, 2009
Volume 13, Issue 9
Print Version
Honduras: Coup d'Etat in Constitutional
Clothing?
By Doug Cassel
Introduction
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Legal confusion has clouded the recent de facto change of government in Honduras.
RELATED ASIL INSIGHTS
political debate over President Manuel Zelaya DOCUMENTS OF NOTE
and his de facto removal. Without enteringthat debate, this analysis addresses only Constitución de la República deHonduras questions of international law and related questions of law.
UN General AssemblyResolution on the Situation in In the early morning hours of Sunday, June 28, 2009, acting on a judicial warrant to arrest President Zelaya for alleged crimes, the nation's military stormed the presidential palace, and arrested the chief executive in his pajamas. Then, exceeding its warrant, and in violation of an express provision of the Honduran Constitution,[1] the military put the pajama-clad OAS General AssemblyResolution on Suspension of president on a plane to Costa Rica.[2] With Zelaya involuntarily exiled, the Honduran Congress met that afternoon, listened to a reading of a supposed letter of resignation from him, and promptly accepted it.[3] The Congress then issued a decree purporting to depose Zelaya on other grounds, and to replace him by the president of the Congress, Rigoberto Micheletti.[4] President Zelaya's removal and replacement were swiftly denounced as a coup d'état by governments throughout the region,[5] including by U.S.
President Obama,[6] and by the United Nations General Assembly,[7] the Inter-American Commission on Human Rights,[8] and the General Assemblyof the Organization of American States (OAS).
ORGANIZATIONS OF NOTE
Democratic Charter,[10] the OAS General Assembly termed the coup an "unconstitutional alteration of the democratic order,"[11] thus triggering the suspension of Honduras from participation in the OAS.[12] Although the United States joined in the 33-0 OAS vote,[13] the Obama Administration stopped short of deeming Zelaya's ouster a "military coup," which would trigger a statutorily mandated suspension of U.S. inter- governmental foreign assistance to Honduras.[14] Nonetheless, the Administration suspended military and inter-governmental development aid Copyright 2009 by The American
as a matter of policy.[15] At least one witness at a congressional hearing went Society of International Law
further, calling Zelaya's removal a "military coup" requiring an aid The purpose of ASIL Insights is
to provide concise and informed
background for developments of
By contrast, the removal and replacement of Zelaya were vigorously interest to the international
community. The American
defended by a broad, if not unanimous,[17] array of Honduran civil authorities Society of International Law
- including all 15 members of the Supreme Court,[18] the chief prosecutor,[19] does not take positions on
substantive issues, including the
an overwhelming majority of Congress,[20] and the new, de facto ones discussed in this Insight.
government.[21] In written communiqués, they insisted that his ouster was a Educational and news media
lawful and constitutional action to defend Honduran democracy and the rule copying is permitted with due
acknowledgement.
of law from a president who had defied both courts and Constitution, andwho was maneuvering to amend the Constitution to allow him to run for a The Insights Editorial Board
includes: Cymie Payne, UC
second term.[22] Similar views have been expressed by a number of Berkeley School of Law; Amelia
Porges, Sidley Austin LLP; and
David Kaye, UCLA School of
Law. Djurdja Lazic serves as the
On the day he was deposed, President Zelaya, in violation of a court order, managing editor.
was attempting to conduct a referendum on whether to call a constitutionalconvention.[24] His arrest that morning was pursuant to a judicial warrantfrom a civilian court,[25] for alleged crimes against the form of government,treason, abuse of authority and usurpation of functions.[26] The person laterselected by Congress to replace him - the president of the Congress -followed the constitutionally mandated line of succession.[27] Civilianauthorities remained in office after Zelaya's removal. The courts, theCongress, and the autonomous agencies, such as the chief prosecutor andthe human rights ombudsman, all continued operating normally. The onlychange in the government seems to have been the removal of Zelaya andmembers of his Administration, and their replacement by a new, civilianpresident and his team.
If this was a military coup, it bore little resemblance to the classic overthrowof civilian authorities by colonels and generals, followed by the rule of amilitary junta or caudillo, which has so marred Latin American history.[28] Butwas it nonetheless a coup d'état? There was an odd omission in the after-the-fact official communiqués: they did not even address whether theHonduran Constitution empowers Congress to remove a president in thesecircumstances. They made no reference to Zelaya's supposed letter ofresignation. They did not so much as cite the congressional decreepurporting to oust him.[29] Defenders of the change of government later attempted to fill the void byciting a supposedly "self-executing" provision of the Constitution.[30] Article239 provides that any official who proposes to reform the Constitution, inorder to allow a president to run for a second term, "immediately" ceases inthe exercise of his office.[31] Reading the Constitution to effectuate a "self-executing" removal of a president, however, with no prior hearing orprocedure, and no specification of who decides on the removal, or on whatevidentiary basis, would offend elemental concepts of due process of law.[32]In any event, this proposed justification was ex post facto: the congressionaldecree ousting Zelaya cited numerous provisions of the Constitution, butArticle 239 was not among them.
In short, after being forced out of the country in breach of the Constitution,President Zelaya was formally deposed by a Congress with no clearconstitutional power to remove him in the circumstances at hand, let alonesummarily, without so much as a hint of due process of law. This was indeeda coup d'état (even if the relative degrees of responsibility of the civilian and military authorities for the coup remain unclear).
Unconstitutional Alteration of the Democratic Order
On September 11, 2001, the OAS General Assembly unanimously adoptedthe Inter-American Democratic Charter.[33] Although the Democratic Charteris not a treaty, it may be viewed as an authoritative interpretation of the OASCharter[34] by the parties to that treaty, and thus to have binding legaleffect.[35] Article 9 of the OAS Charter authorizes the General Assembly to suspend amember state from participation in the OAS when its "democraticallyconstituted government has been overthrown by force." If that were the onlyapplicable norm, the Honduras case would be debatable: althoughPresident Zelaya was forcibly taken out of the country, and forciblyprevented from returning,[36] his formal removal from office and replacementwere accomplished peacefully in Congress.
The Democratic Charter, however, goes further. Article 20 authorizes aspecial session of the OAS General Assembly whenever there is an"unconstitutional alteration of the constitutional regime that seriously impairsthe democratic order in a member state." If initial diplomatic efforts fail,Article 21 authorizes the General Assembly to suspend a member state fromparticipating in the OAS if there has been an "unconstitutional interruption ofthe democratic order." This poses a challenge for international lawyers. Ordinarily international lawimposes its own, autonomous norms for the permissible conduct of agovernment. Questions of domestic law - including constitutionality - are leftto domestic authorities, both as a matter of their sovereign entitlements, andbecause they are presumed better able to interpret their own constitution.
The Democratic Charter is an exception. In order to create a collectiveregional safeguard for democracy in each country, it sets internationalstandards which demand (among other things) that each nation comply withits own constitution. To the extent that democracy depends onconstitutionalism, this incorporation of domestic law into international law isunavoidable.
But this requires international lawyers - and other OAS member states - toconsider whether domestic authorities have breached their own constitution,in order to evaluate whether they meet their international commitments. Thistask should be undertaken with humility and respect for domestic expertise.
But it cannot be avoided, lest de facto regimes be given carte blanche tofabricate their constitutionality. On close questions of constitutional law,deference should be paid to domestic authorities. But where the breach isclear and its effect undemocratic, the international whistle must be blown.[37] In the Honduran case, several elements combine to make out a clear case ofunconstitutionality. First was the forced expatriation of President Zelaya, anaction whose constitutionality - in the face of an express constitutionalprohibition of expatriation[38] - has few if any defenders.[39] Second was the immediate congressional acceptance of his purported letter of "resignation" - when it was known that he had been forcibly exiled toCosta Rica that very morning. President Zelaya promptly denied writing theletter, and the U.S. State Department publicly doubted its authenticity.[40]Perhaps reflecting doubts, the congressional decree deposing Zelaya makesno mention of his "resignation." Nor do the subsequent officialcommuniqués. The "resignation" now appears to have been nothing morethan an embarrassing ploy.
Third is the evident lack of congressional power to depose Zelaya in thecircumstances. With one exception, none of the constitutional articles citedby the congressional decree purport to grant Congress power to remove orreplace a president.
The first four articles cited by Congress - Articles 1-4 - do not even mentionCongress, let alone grant it any powers. Article 1 provides that Honduras is ademocratic state under the rule of law.[41] Article 2 states that usurpation ofpowers is treason,[42] while Article 4 provides that alternation in thepresidency is obligatory and that violation of that norm constitutestreason.[43] But a determination of whether or not Zelaya committed treason is a matterfor the Honduran Supreme Court, not Congress. Unlike common lawconstitutions, the Honduran Constitution does not provide for impeachmentand trial of a president by the legislature. Instead, like most civil lawconstitutions in Latin America, it grants Congress the initial power todetermine whether there are grounds to accuse the president of a crime.[44]Once Congress makes that determination, however, the HonduranConstitution mandates that the case be adjudicated by the Supreme Court,not by Congress.[45] Article 3 of the Constitution provides that no one need obey a governmentwhich engages in usurpation or uses unconstitutional means; its actions arenull, and the people have a right to engage in insurrection.[46] Butinsurrection is a right of the people, not a power of Congress. And thepeople of Honduras - as shown by the large crowds who came to the airportin the capital in order to try to welcome President Zelaya home[47] - areclearly divided in their sympathies.
Article 205, paragraph 20, gives Congress power to "approve or disapprove"administrative conduct,[48] while Article 218 bars the president from vetoingcertain legislation, including bills that refer to the conduct of the executive.[49]Neither article says anything about removal. Articles 321-23 are generalprovisions providing that no official is above the law, and that they take anoath to obey the law.[50] None purports to empower Congress to do anything,much less to remove and replace a president.
The only article invoked by the decree that grants Congress a relevant poweris Article 242.[51] It empowers Congress to replace an absent presidentwhose absence or incapacity is permanent or indefinite.[52] But Congresswell knew that Zelaya's absence was involuntary, and that he wanted toreturn immediately. To force a president out of the country in violation of theConstitution, to deny him reentry, and then to replace him on the groundthat he is "absent," illustrates the sort of constitutional chicanery the Inter- American Democratic Charter is designed to condemn.[53] Defenders of the de facto government later invoked a different provision tojustify the removal of President Zelaya.[54] Article 239 provides that anyonewho proposes to reform the constitutional ban on re-election of a president,and those who help him, "will cease immediately in the exercise of theirrespective positions."[55] But to treat this provision as "self-executing" isproblematic. For example, if President Zelaya violated Article 239, when didhe cease to be president? Months ago, when he openly began to advocate aconstitutional reform to allow his re-election?[56] And who is to say? Do thecourts decide? Does the Congress? What if they disagree? What if thepresident disputes their accusation? What is the evidentiary standard? Howand when does Honduras know that it no longer has a lawfully electedpresident? Plainly Article 239 is unworkable without some procedure toimplement it. And in any case, Article 239 was not the basis on whichCongress purported to depose Zelaya.
A fourth flaw in the removal of the president was the absence of due processof law. Under the American Convention on Human Rights,[57] to whichHonduras is a party,[58] and which under the Honduran Constitution prevailsover domestic law,[59] high officials are entitled to due process of law beforebeing removed from office.[60] Not only does President Zelaya enjoy this rightas a matter of fairness to him, but the voters who elected him also have aright not to be deprived of the fruits of their electoral victory, without somereasonable process for removal.
The Honduran Congress chose not to exercise its only relevant constitutionalpower - to find that there are grounds to prosecute the president, and thento refer his case to the Supreme Court for adjudication.[61] Presumably it wasnot content to await the outcome of a criminal trial before the SupremeCourt. Instead, it summarily removed the president without so much as ahearing. If interpreted as self-executing, Article 239 would do the same.
Either avenue of summary removal is inconsistent with Honduras' treatyobligations, violative of due process of law, and anti-democratic.
Conclusion
Despite the condemnation of the coup d'état by the United Nations, the Inter-American Commission on Human Rights, and the OAS, and by manygovernments including the United States, and despite suspension ofHonduras from receipt of U.S. and European aid,[62] and from participation inthe OAS, diplomatic efforts to return President Zelaya to Honduras have notsucceeded as of the date of this writing.[63] Most recently, the U.S. hasrevoked the diplomatic visas of four persons associated with the de factoregime, and has many more visas under review.[64] As diplomatic efforts andpolitical debates continue, at least the threshold legal question should beput to rest: the purported removal and replacement of President Zelayawere, in the words of the Inter-American Democratic Charter, an"unconstitutional interruption of the democratic order." Whatever one's viewsof the president and his prior conduct, the June 28 coup was an assault onconstitutional order. If allowed to stand, it will become a menacing precedentfor democracy, not only in Honduras, but throughout the hemisphere.
About the Author
Doug Cassel, an ASIL member and former member of the ASIL ExecutiveCouncil, is Professor of Law and Director of the Center for Civil and HumanRights at Notre Dame Law School. He has long experience in Latin America.
He is President of the Due Process of Law Foundation, which promotesjudicial reform in the region, and was twice elected by the Organization ofAmerican States to the Board of the Justice Studies Center of the Americas,which he served as President.
Endnotes
[1] Constitución de la República de Honduras, art. 102 ("Ningún hondureñopodrá ser expatriado ni entregado por las autoridades a un Estadoextranjero") [hereinafter "Constitution"]. Unofficial translation: "No Hondurancan be expatriated or delivered by the authorities to a foreign State." (Thisand all other translations of the Constitution in this essay are unofficialtranslations by the author).
[2] William Booth & Juan Forero, Honduran Military Ousts President; ZelayaFlown to Costa Rica; Congress Votes Him Out, Names Successor, WASH.
POST, June 29, 2009, at A1.
[3] Congreso destituye a Manuel Zelaya, LA TRIBUNA, June 29, 2009,available at http://www.latribuna.hn/web2.0/?p=14265 (last visited July 26,2009).
[4] Decreto de Destitución de Zelaya, June 28, 2009, reprinted in id. Theauthor has not found a copy of the decree on the Honduran Congresswebsite, and relies on the text (subject to one obvious correction in note 48infra) as published in LA TRIBUNA.
[5] See, e.g., WASH. POST, supra note 2.
[6] Remarks by President Obama and President Uribe of Colombia in JointPress Availability, June 29, 2009 (President Obama remarked: "We believethat the coup was not legal and that President Zelaya remains the Presidentof Honduras, the democratically elected President there"), available athttp://www.whitehouse.gov/the_press_office/Remarks-by-President-Obama-and-President-Uribe-of-Colombia-in-Joint-Press-Availability/ (last visited July26, 2009).
[7] G.A. Res. 63/301, U.N. Doc. A/RES/63/301 (July 1, 2009).
[8] Press Release 42/09, Inter-Am. C.H.R., IACHR Strongly Condemns Coupin Honduras (June 28, 2009).
[9] AG/RES. 1 (XXXVII-E/09) (July 1, 2009), 37th Sess., OEA/Ser.P/XXXVII-E/09 (2009), ¶1.
[10] Inter-American Democratic Charter, AG/RES. 1 (XXVIII-E/01), Sept. 11,2001, arts. 20 ("unconstitutional alteration of the constitutional regime thatseriously impairs the democratic order") and 21 ("unconstitutional interruption of the democratic order") [hereinafter "Democratic Charter"].
[11] AG/RES. 1, supra note 9, ¶ 1; AG/RES. 2 (XXXVII-E/09) (July 4, 2009),37th Sess., OEA/Ser.P/ XXXVII-E/09 (2009), (first preamb. paragraph).
[12] Id. (invoking art. 21 of the Democratic Charter).
[13] U.S. Dept. of State, Background Briefing on the Organization ofAmerican States Decision on Honduras, July 5, 2009, available athttp://www.state.gov/r/pa/prs/ps/2009/july/125638.htm (last visited July 26,2009).
[14] Department of State, Foreign Operations, and Related ProgramsAppropriations Act, 2009 (division J of the Omnibus Appropriations Act, 2009;P.L. 111-8; 123 Stat. 524 at 831), § 7008.
[15] U.S. Dept. of State, Office of the Spokesman, Question Taken at theJuly 6 Daily Press Briefing, July 7, 2009, available at http://www.state.gov/r/pa/prs/dpb/2009/july/125757.htm (last visited July 26, 2009).
[16] Hearing of the Western Hemisphere Subcommittee of the House ForeignAffairs Committee; Subject: The Crisis in Honduras, July 10, 2009, FED.
NEWS SERV., (witness Joy Olson, Exec. Dir., Washington Office in LatinAmerica) [hereinafter "House Hearing"].
[17] Some officials opposed or did not fully endorse the coup. The humanrights ombudsman proposed a national plebiscite on whether to restorePresident Zelaya to office. Comisionado Nacional de los Derechos Humanosde la República de Honduras, Propuesta Para Legitimar el Ejercicio de laSoberanía Nacional y Del Principio de Autodeterminación de Pueblos, July 1,2009, available at www.conadeh.hn (last visited July 26, 2009). Unofficialtranslation: "Proposal to Legitimize the National Sovereignty and thePrinciple of Self-Determination of Peoples." [18] Corte Suprema de Justicia, Comunicado Especial, June 30, 2009; andComunicado del 20 de Julio, July 20, 2009; both available atwww.poderjudicial.gob.hn (last visited July 26, 2009).
[19] Ministerio Público, Comunicado, June 30, 2009, ¶ 3, available atwww.mp.hn (last visited June 26, 2009).
[20] The vote in Congress on June 28 to depose President Zelaya wasreportedly "by unanimity." Congreso destituye a Manuel Zelaya, LATRIBUNA, June 29, 2009. At least one member of Congress, however, leftthe session before the vote because she objected to the entire proceeding.
See No Hubo Contundencia en Elementos Para Improbar la Conducta deZelaya, LA TRIBUNA, July 2, 2009 (Congresswoman Elvia Argentina Valle).
Both articles are available at www.latribuna.hn (last visited July 26, 2009).
[21] Secretaría de Relaciones Exteriores, Boletín Informativo, June 29, 2009,available at www.sre.hn (last visited July 26, 2009).
[22] Even some who recognize the purported deposing of President Zelayaas a coup d'etat, nonetheless fear that he was leading the country down the path taken by Bolivia, Ecuador and Venezuela, "where elected presidentshave spearheaded processes of constitutional reform that erode checks andbalances, strengthen the power of the executive branch and createalternative participatory mechanisms for the exercise of so-called 'populardemocracy.'" House Hearing, supra note 16 (testimony of Cynthia Arnson,Director of the Latin America Program at the Woodrow Wilson InternationalCenter for Scholars).
[23] See generally House Hearings, supra note 16.
[24] Corte Suprema de Justicia, Comunicado Especial, supra note 18. Thereferendum would have asked, "¿Está de acuerdo que en las eleccionesgenerales del 2009 se instale una Cuarta Urna en la cual el pueblo decida laconvocatoria una Asamblea Nacional Constituyente?" Unofficial translation:"Do you agree that in the 2009 general elections there should be installed afourth ballot box in which the people can decide on the convening of aNational Constituent Assembly?" El Presidente de la República en Consejode Ministros, Decreto Ejecutivo PCM-005-2009, LA GACETA, June 25, 2009,art. 1.
[25] Fuerzas Armadas de Honduras, Comunicado de Prensa No. 1, 30 deJunio de 2009, ¶¶ 3 & 5, available at www.ffaah.mil.hn (last visited July 26,2009); Corte Suprema de Justicia, Comunicado Especial, supra note 18, ¶ 6.
[26] Comunicado, supra note 19, ¶ 2 ("delitos contra la forma del gobierno,abuso de autoridad, traición a la patria y usurpación de funciones").
[27] Constitution, supra note 1, art. 242.
[28] On July 24 - by which time it was clear that diplomatic negotiations wereintended to return President Zelaya to the country and to the exercise of hisoffice - the Armed Forces publicly "reaffirmed" their subordination to civilauthority and their "strict respect" for the outcome of the negotiations.
Fuerzas Armadas de Honduras, Comunicado No. 7, July 24, 2009, availableat www.ffaah.mil.hn (last visited July 26, 2009).
[29] See communiqués in supra notes 18, 19 & 21.
[30] House Hearings, supra note 16, (witness Lanny Davis).
[31] For text, see infra note 55.
[32] See Constitutional Court v. Peru, 2001 Inter-Am. Ct. H.R. (ser. C) No.
71, ¶¶ 81-85, 110 (Jan. 31, 2001) (constitutional court judges may not beremoved without due process of law).
[33] Democratic Charter, supra note 10.
[34] Charter of the Organization of American States, 1948, as amended 1967,1985, 1992 and 1993, OAS T.S. No. 41, OEA/Ser.G/CP/INF.3964/96 rev.
(Oct. 6, 1998).
[35] Vienna Convention on the Law of Treaties, opened for signature May 23,1969, entered into force Jan. 27, 1980, 1155 U.N.T.S. 331, art. 31 ("General Rule of Interpretation"). Art. 31.3(a) provides, "[t]here shall be taken intoaccount, together with the context: (a) any subsequent agreement betweenthe parties regarding the interpretation of the treaty or the application of itsprovisions." The Democratic Charter is such a "subsequent agreement"among the parties to the OAS Charter. Its last preambular paragraph bearsin mind "the progressive development of international law and the advisabilityof clarifying the provisions set forth in the OAS Charter and related basicinstruments on the preservation and defense of democratic institutions,according to established practice." Cf. Interpretation of the AmericanDeclaration, Adv. Op. OC-10/89, Inter-Am. Ct. H.R. (ser. A) No. 10, ¶¶ 43, 45& 47 (July 14, 1989) (American Declaration, as an "authoritativeinterpretation" of the OAS Charter, has "legal effect" and is a source of"international obligations").
[36] Marc Lacey & Ginger Thompson, Honduras is Rattled as Leader TriesReturn, N.Y. TIMES, July 6, 2009, at A4.
[37] Cf. Sunday Times v. United Kingdom, 2 Eur. Ct. H.R. (ser. A) at 245,¶59 (1979) (national authorities are granted a "margin of appreciation" incomplying with the norms of the European Convention on Human Rights,but subject to a "European supervision").
[38] Constitution, supra note 1, art. 102.
[39] On July 4, 2009, the Chief Prosecutor of Honduras, who earlier filedcriminal charges against President Zelaya and who publicly supported thecoup, announced that he was conducting an investigation to determine,among other things, whether "Manuel Zelaya" was well treated after hisarrest and "the circumstances that led to his departure toward Costa Rica."Ministerio Público, Comunicado, 4 de Julio de 2009, available at www.mp.hn(last visited July 26, 2009).
[40] WASH. POST, supra note 2.
[41] Constitution, supra note 1, art. 1: "Honduras es un Estado de derecho,soberano, constituido como república libre, democrática e independientepara asegurar a sus habitantes el goce de la justicia, la libertad, la cultura yel bienestar económico y social." Unofficial translation: Honduras is a stateunder law, sovereign, constituted as a free, democratic and independentrepublic, in order to ensure its inhabitants the enjoyment of justice, liberty,culture and economic and social well-being." [42] Id. art. 2: "La soberanía corresponde al pueblo del cual emanan todoslos poderes del Estado que se ejercen por representación. La suplantaciónde la soberanía popular y la usurpación de los poderes constituidos setipifican como delitos de traición a la Patria. La responsabilidad en estoscasos es imprescriptible y podrá ser deducida de oficio o a petición decualquier ciudadano." Unofficial translation: "Sovereignty belongs to thepeople, from whom emanate all the powers of the State, which are exercisedby representation. The supplanting of popular sovereignty and usurpation ofthe powers conferred constitute the crimes of treason of treason against theNation. There is no statute of limitations for these crimes and criminalproceedings can be initiated by public authority or by petition of any citizen." [43] Id. art. 4: "La forma de gobierno es republicana, democrática yrepresentativa. Se ejerce por tres poderes: Legislativo, Ejecutivo y Judicial,complementarios e independientes y sin relaciones de subordinación. Laalternabilidad en el ejercicio de la Presidencia de la República es obligatoria.
La infracción de esta norma constituye delito de traición a la Patria."Unofficial translation: "The form of government is republican, democratic andrepresentative. It is carried out by three powers: Legislative, Executive andJudicial, which are complementary and independent and none issubordinate to another. Alternation in the exercise of the Presidency of theRepublic is obligatory. Violation of this norm constitutes treason against theNation." [44] Id. art. 205 (15) empowers Congress to "[d]eclarar si ha lugar o no aformación de causa contra el Presidente." Unofficial translation: "[t]odeclare whether or not there are grounds to bring a case against thePresident." [45] Id. art. 319: "La Corte Suprema de Justicia, tendrá las atribucionessiguientes:. 2. Conocer de los delitos oficiales y comunes de los altosfuncionarios de la República, cuando el Congreso Nacional los hayadeclarado con lugar a formación de causa;. " Unofficial translation: "TheSupreme Court of Justice shall have the following powers:. 2. Toadjudicate the official and common crimes committed by high officials of theRepublic, when the National Congress has declared that there are groundsto bring a case;." [46] Id. art. 3: "Nadie debe obediencia a un gobierno usurpador ni a quienesasuman funciones o empleos públicos por la fuerza de las armas o usandomedios o procedimientos que quebranten o desconozcan lo que estaConstitución y las leyes establecen. Los actos verificados por talesautoridades son nulos. El pueblo tiene derecho a recurrir a la insurrecciónen defensa del orden constitucional." Unofficial translation: "No one owesobedience to a government which usurps, nor to those who assume publicfunctions or employment by force of arms or by using means or procedureswhich violate or disregard those established by this Constitution and thelaws. Acts certified by such authorities are null. The people have the right toresort to insurrection in defense of the constitutional order." [47] See Lacey & Thompson, supra note 36.
[48] Constitution, supra note 1, art. 205: "Corresponden al CongresoNacional las atribuciones siguientes:. 20. Aprobar o improbar la conductaadministrativa del Poder Ejecutivo, Poder Judicial y del Tribunal Nacional deElecciones, Contraloría General de la República, Procuraduría General de laRepública e instituciones descentralizadas;." Unofficial translation: "TheNational Congress has the following powers:. 20. To approve ordisapprove the administrative conduct of the Executive Power, Judicial Powerand the National Electoral Tribunal, the Comptroller General of the Republic,the Attorney General of the Republic and decentralized institutions."(The version of the congressional decree reported in LA TRIBUNA refers toarticle 205, and then to article 220(20). Article 220 does not have subsection20, but article 205 does. I accordingly treat the reference as being to article205(20)).
[49] Id. art. 218: "No será necesaria la sanción, ni el Poder Ejecutivo podráponer el veto en los casos y resoluciones siguientes: 1. En las eleccionesque el Congreso Nacional haga o declare, o en las renuncias que admita orechace; 2. En las declaraciones de haber o no lugar a formación de causa;3. En los decretos que se refieren a la conducta del Poder Ejecutivo;."Unofficial translation: "No sanction will be necessary, nor can the ExecutivePower exercise the veto in the following cases and resolutions: 1. In theelections which the National Congress makes or declares, or in theresignations which it accepts or rejects; 2. In the declarations that there is oris not ground to bring a case; 3. In the decrees which refer to the conduct ofthe Executive Power." [50] Id. art. 321: "Los servidores del Estado no tiene más facultades que lasque expresamente les confiere la ley. Todo acto que ejecuten fuera de la leyes nulo e implica responsabilidad." Unofficial translation: "Public servantshave no more powers than those which are expressly conferred upon themby law. Any act which they undertake outside the law is null and impliesresponsibility." Art. 322: "Todo funcionario público al tomar posesión de su cargo prestará lasiguiente promesa de ley: 'Prometo ser fiel a la República, cumplir y hacercumplir la Constitución y las leyes.'" Unofficial translation: "Every publicofficial upon assuming office will make the following promise under law: 'Ipromise to be faithful to the Republic, to obey and to enforce theConstitution and the laws.'" Art. 323: "Los funcionarios son depositarios de la autoridad, responsableslegalmente por su conducta oficial, sujetos a la ley y jamás superiores a ella.
Ningún funcionario o empleado, civil o militar, está obligado a cumplirórdenes ilegales o que impliquen la comisión de delito." Unofficialtranslation: "Public officials are granted authority, are legally responsible fortheir official conduct, and are subject to the law and never above it. Noofficial or employee, civilian or military, is obligated to follow orders which areillegal or which imply the commission of a crime." [51] Id. art. 242: "Si la falta del Presidente fuere absoluta, el Designado queelija al efecto el Congreso Nacional ejercerá el Poder Ejecutivo por el tiempoque falte para terminar el período constitucional. Pero si también faltaren demodo absoluto los tres designados, el Poder Ejecutivo será ejercido por elPresidente del Congreso Nacional,. por el tiempo que faltare paraterminar el período constitucional. En sus ausencias temporales, elPresidente podrá llamar a uno de los designados para que lo sustituya."Unofficial translation (see infra note 52): "If the absence or incapacity of thePresident were permanent or indefinite, the Designee selected for thatpurpose by the National Congress will exercise the Executive Power for thetime that remains until the end of the constitutional term of office. But if threedesignees are also permanently or indefinitely absent or incapacitated, theExecutive Power will be exercised by the President of the NationalCongress,. for the time that remains until the end of the constitutionalterm of office. During his temporary absences, the President may call on oneof the designees to replace him." [52] The Spanish text refers to a "falta. absoluta." In this context the word "falta" refers at least to an "absence," and perhaps to an incapacity as well.
(The immediately preceding article, Art. 241, provides that the president maynot [seems that there is a verb missing here] himself from national territoryfor more than 15 days without congressional permission). In English "faltaabsoluta" would literally translate to an "absolute absence or incapacity,"which makes little sense. The better translation, I believe, is a "permanent orindefinite" absence or incapacity.
[53] The author has found no subsequent official defender of the removal ofPresident Zelaya who justifies it on this ground.
[54] See, e.g., House Hearing, supra note 16 (testimony of Lanny Davis).
[55] Constitution, supra note 1, art. 239: "El ciudadano que hayadesempeñado la titularidad del Poder Ejecutivo no podrá ser Presidente oDesignado. El que quebrante esta disposición o proponga su reforma, asícomo aquellos que lo apoyen directa o indirectamente, cesarán de inmediatoen el desempeño de sus respectivos cargos, y quedarán inhabilitados pordiez años para el ejercicio de toda función pública."Unofficial translation: "The citizen who has been the Chief of the ExecutivePower cannot [again] be President or Designee. Anyone who breaches thisprovision or proposes its reform, as well as those who assist him directly orindirectly, shall cease immediately in the discharge of their respective posts,and will remain ineligible for ten years for the exercise of any publicfunction." [56] See, e.g., President Wants Voters to Let Him Seek New Term,TORONTO STAR , Mar. 25, 2009, at A20 ("President Manuel Zelaya calledyesterday for a June referendum on changing the constitution to let him runfor a second term").
[57] American Convention on Human Rights, 22 Nov. 22, 1969, 1144U.N.T.S. 123, reprinted in 9 I.L.M. 673 (1970).
[58] Honduras ratified the Convention on Sept. 5, 1977. See Conventionratification table at http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm (last visited July 26, 2009).
[59] Constitution, supra note 1, art. 16 reads: ". Los tratadosinternacionales celebrados por Honduras con otros estados, una vez queentran en vigor, forman parte del derecho interno." Unofficial translation:"International treaties celebrated by Honduras with other status, once theyenter into force, form part of domestic law." Art. 18 adds: "En caso deconflicto entre el tratado o convención y la Ley prevalecerá el primero."Unofficial translation: "In case of conflict between a treaty or convention andthe law, the former will prevail." [60] See Constitutional Court v. Peru, supra note 32.
[61] At least one member of Congress objected that this procedure was notfollowed, instead of the decree deposing President Zelaya. See No huboContundencia en Elementos Para Improbar la Conducta de Zelaya, LATRIBUNA, July 2, 2009 (Congresswoman Elvia Argentina Valle), available at www.latribuna.hn (last visited July 26, 2009).
[62] Press Release 12255/09, Council of the European Union, Declaration bythe Presidency on Behalf of the European Union on the Political Situation inHonduras (July 21, 2009), available at http://www.europa-eu-un.org/articles/en/article_8897_en.htm.
[63] On July 25, 2009, the Honduran military issued a communiqué which,according to a New York Times report, was the "first sign of support for theSan Jose Accord - by which President Zelaya would return as president, butwith limits on his powers, and with the date of the next elections moved up -by a powerful sector of the de facto government." Ginger Thompson & BlakeSchmidt, Military in Honduras Backs Plan on Zelaya, N. Y. TIMES, July 26,2009, at A12; see Fuerzas Armadas de Honduras, Comunicado No. 7, July24, 2009, available at www.ffaah.mil.hn (last visited July 26, 2009).
[64] U.S. Dept. of State, Daily Press Briefing, July 28, 2009, available athttp://www.state.gov/r/pa/prs/dpb/2009/july/126589.htm#honsuras (lastvisited July 29, 2009). The four visas revoked to date reportedly includethose of the judge who issued the warrant to arrest President Zelaya, thecurrent president of the Congress, the Human Rights Ombudsman and thehead of the armed forces. Marc Lacey, Honduras: Officials' Diplomatic VisasRevoked, N.Y. TIMES, July 29, 2009, at A6; "Esta decision nos deja un saldopositivo," LA TRIBUNA, June 29, 2009, available at http://www.latribuna.hn/web2.0/?p=24239 (last visited July 29, 2009).

Source: http://www.grocjusz.edu.pl/Materials/_archiwum/archiwum2009/pd_sem_1012_B.pdf