Why President Zelaya's Actions in Honduras Were Legal and Constitutional
by Alberto Valiente Thoresen
In the classic Greek tragedy, Prometheus Bound, the playwright observes: "Of wrath's disease wise words the healers are." Shortly put, this story is about Prometheus, a titan who was punished by the almighty gods for having given humanity the capacity to create fire. This generated a conflict, which ended with Prometheus' banishment and exile.
Currently, there is a tragedy being staged in the Central American republic Honduras. Meanwhile, the rest of humanity follows the events, as spectators of an outdated event in Latin America, which could set a very unfortunate undemocratic precedent for the region. In their rage, the almighty gods of Honduran politics have punished an aspiring titan, President Manuel Zelaya, for attempting to give Hondurans the gift of participatory democracy. This generated a constitutional conflict that resulted in president Zelaya's banishment and exile. In this tragedy, words are once again the healers of enraged minds. If we, the spectators, are not attentive to these words, we risk succumbing intellectually, willfully accepting the facts presented by the angry coup-makers and Honduran gods of politics.
In this respect, media coverage of the recent military coup in Honduras is often misleading; even when it is presenting a critical standpoint towards the events. Concentrating on which words are used to characterize the policies conducted by President Zelaya might seem trivial at first sight. But any familiarity to the notion of ‘manufacturing of consent', and how slight semantic tricks can be used to manipulate public opinion and support, is enough to realize the magnitude of certain omissions. Such oversights rely on the public's widespread ignorance about some apparently minor legal intricacies in the Honduran Constitution.
For example, most reports have stated that Manuel Zelaya was ousted from his country's presidency after he tried to carry out a non-binding referendum to extend his term in office. But this is not completely accurate. Such presentation of "facts" merely contributes to legitimizing the propaganda, which is being employed by the coup-makers in Honduras to justify their actions. This interpretation is widespread in US-American liberal environments, especially after Secretary of State Hillary Clinton said that the coup is unacceptable, but that "all parties have a responsibility to address the underlying problems that led to [Sunday]'s events." However, President Zelaya cannot be held responsible for this flagrant violation of the Honduran democratic institutions that he has tried to expand. This is what has actually happened:
The Honduran Supreme Court of Justice, Attorney General, National Congress, Armed Forces and Supreme Electoral Tribunal have all falsely accused Manuel Zelaya of attempting a referendum to extend his term in office.
According to Honduran law, this attempt would be illegal. Article 239 of the Honduran Constitution clearly states that persons, who have served as presidents, cannot be presidential candidates again. The same article also states that public officials who breach this article, as well as those that help them, directly or indirectly, will automatically lose their immunity and are subject to persecution by law. Additionally, articles 374 and 5 of the Honduran Constitution of 1982 (with amendments of 2005), clearly state that: "it is not possible to reform the Constitution regarding matters about the form of government, presidential periods, re-election and Honduran territory", and that "reforms to article 374 of this Constitution are not subject to referendum."
Nevertheless, this is far from what President Zelaya attempted to do in Honduras the past Sunday and which the Honduran political/military elites disliked so much. President Zelaya intended to perform a non-binding public consultation, about the conformation of an elected National Constituent Assembly. To do this, he invoked article 5 of the Honduran "Civil Participation Act" of 2006. According to this act, all public functionaries can perform non-binding public consultations to inquire what the population thinks about policy measures. This act was approved by the National Congress and it was not contested by the Supreme Court of Justice, when it was published in the Official Paper of 2006. That is, until the president of the republic employed it in a manner that was not amicable to the interests of the members of these institutions.
Furthermore, the Honduran Constitution says nothing against the conformation of an elected National Constituent Assembly, with the mandate to draw up a completely new constitution, which the Honduran public would need to approve. Such a popular participatory process would bypass the current liberal democratic one specified in article 373 of the current constitution, in which the National Congress has to approve with 2/3 of the votes, any reform to the 1982 Constitution, excluding reforms to articles 239 and 374. This means that a perfectly legal National Constituent Assembly would have a greater mandate and fewer limitations than the National Congress, because such a National Constituent Assembly would not be reforming the Constitution, but re-writing it. The National Constituent Assembly's mandate would come directly from the Honduran people, who would have to approve the new draft for a constitution, unlike constitutional amendments that only need 2/3 of the votes in Congress. This popular constitution would be more democratic and it would contrast with the current 1982 Constitution, which was the product of a context characterized by counter-insurgency policies supported by the US-government, civil façade military governments and undemocratic policies. In opposition to other legal systems in the Central American region that (directly or indirectly) participated in the civil wars of the 1980s, the Honduran one has not been deeply affected by peace agreements and a subsequent reformation of the role played by the Armed Forces.
Recalling these observations, we can once again take a look at the widespread assumption that Zelaya was ousted as president after he tried to carry out a non-binding referendum to extend his term in office.
The poll was certainly non-binding, and therefore also not subject to prohibition. However it was not a referendum, as such public consultations are generally understood. Even if it had been, the objective was not to extend Zelaya's term in office. In this sense, it is important to point out that Zelaya's term concludes in January 2010. In line with article 239 of the Honduran Constitution of 1982, Zelaya is not participating in the presidential elections of November 2009, meaning that he could have not been reelected. Moreover, it is completely uncertain what the probable National Constituent Assembly would have suggested concerning matters of presidential periods and re-elections. These suggestions would have to be approved by all Hondurans and this would have happened at a time when Zelaya would have concluded his term. Likewise, even if the Honduran public had decided that earlier presidents could become presidential candidates again, this disposition would form a part of a completely new constitution. Therefore, it cannot be regarded as an amendment to the 1982 Constitution and it would not be in violation of articles 5, 239 and 374. The National Constituent Assembly, with a mandate from the people, would derogate the previous constitution before approving the new one. The people, not president Zelaya, who by that time would be ex-president Zelaya, would decide.
It is evident that the opposition had no legal case against President Zelaya. All they had was speculation about perfectly legal scenarios which they strongly disliked. Otherwise, they could have followed a legal procedure sheltered in article 205 nr. 22 of the 1982 Constitution, which states that public officials that are suspected to violate the law are subject to impeachment by the National Congress. As a result they helplessly unleashed a violent and barbaric preemptive strike, which has threatened civility, democracy and stability in the region.
It is fundamental that media channels do not fall into omissions that can delay the return of democracy to Honduras and can weaken the condemnation issued by strong institutions, like the United States government. It is also important that individuals are informed, so that they can have a critical attitude to media reports. Honduras needs democracy back now, and international society can play an important role in achieving this by not engaging in irresponsible oversimplifications.