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The Reinstatement of the Honduran President from a Constitutional Perspective

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"Personal, civil and fundamental rights of President Zelaya and the people of Honduras are beeing violated" says Roberto Martínez Castañeda, Ambassador of Honduras to Germany and the EU. Photo: Harald Neuber

November 5, 2009

From Roberto Martínez Castañeda, Dr. Pol. Sc. and Ambassador of Honduras to Germany and the EU.

I. Coup d'état and Usurping of Government

On June 28 2009, by order of the Honduras Supreme Court, and based on a detention warrant and file fabricated after the events took place, the Honduran army violently attacked the personal residence of President Manuel Zelaya, embattling his personal guards and firing upon the family home, thus placing him and his family in grave danger; subsequently capturing, kidnapping and later expelling the President by plane towards Costa Rica, still in his sleeping clothes.

A few hours later, and basing their decision upon a falsified resignation, the Honduran Congress proclaimed Roberto Micheletti (who was at this moment President of the National Congress) President of Honduras. The Congress announced this the next day to the public and stated a “constitutional succession”.

After these events, which were in violation of all constitutional and legal rules of Honduras, as well as of the personal fundamental rights of the Constitutional President, now the reinstatement of President Zelaya is based on the signature of the Tegucigalpa-San José Agreement signed October 30, reinstates the situation to the 28 of June, date of the Coup d’état.

From the beginning the de facto Government of Roberto Micheletti has refused to acknowledge, that:

  • The events of the 28 of June were in fact a Coup d'état.
  • The assignment and the pro-forma election of Roberto Micheletti as President, on the part of the Honduras Congress is illegal.
  • Consequently the government is a “de facto” government, usurping in its functions, and not legally entitled to perform as such.

The arguments in favor of the de facto regime interpret the facts pretending that President Zelayas detention was legal and a constitutional succession and that the resulting government is “constitutional” in title.

II. Brutality of Origin

The first action carried out by this government, namely the assault of the Presidents home, his kidnapping and expulsion, has a barbaric and vandalistic character, more in accordance with mafias and drug cartels than with democratic politicians.

This action is the original sin of this de facto government in Honduras. From a legal standpoint, it is not only a criminal act punishable by law, but also tainted all actions and decisions taken afterwards. In this consequence, all these succeeding actions and decisions are illegal, null and void, even as violent and barbaric as the coup itself.

Thus the military and dictatorial regime of Micheletti and his corporate sponsors had to recur to permanent acts of violence to be able to remain in power.

This violence has been exerted against people who protested peacefully and resulted in violent repression of public meetings and manifestations, dissolution and brutal persecution of all kinds of gatherings seeking to express political opposition and the defense of constitutional rights. All of which is guaranteed by Article 3 of the Honduran Constitution.

On the other hand the personal, civil and fundamental rights of President Zelaya were violated from the very first moment: accusing him without any possibility to defense and no presumption of innocence as guaranteed by law, his violent and unworthy expulsion of the country – the Honduran Constitution guarantees that under no circumstance can an Honduran citizen be estranged from his country. From the first moment on, all persons opposing the de facto regime have been subjected to all kinds of ill-treatment, including torture and death. The results are about a hundred dead and hundreds of injured, tortured or jailed people. This is the true result of the “constitutional succession”, as the military dictatorship calls the “ascension” of Micheletti to power.

The consequences for our poor country have been multiple and negative: its total isolation by the international community and the cutting off of aid from all main sources are among the main ones. OAS, UN, EU, UNASUR, ALBA and the non-aligned countries have all condemned the military coup, and the OAS has temporarily suspended Honduras from membership. Also important is the recognition of the legitimate government of President Zelaya and its legal representatives by all countries and international bodies.

III. The “Removal” of Manuel Zelaya by the Honduran Congress

If we examine the legal base which sustains the removal of the constitutional President of Honduras, we must look into the “Decree of Deposition” of the President.

This decree was produced in the wee hours of the morning, after the brutal assault of the Presidents home and his expulsion from the country had already taken place. To this day nobody has been able to determine exactly who and how many of the congressmen involved were present at the time.

This in itself would suffice to declare the decree and its decision null and void, but before arriving at this conclusion let us examine this “masterpiece” of constitutional violation. The Legislation Decree No. 141-2009 reads as follows:

ARTICLE 1. The National Congress in applying Articles 1, 2, 3, 4, 5, 40 number 4, 205 number 20, and 218 number 3, 242, 321, 322, and 323 of the Constitution of the Republic agrees:

1. to disapprove the behavior of the President of the Republic, citizen JOSE MANUEL ZELAYA ROSALES, for repeated violations of the Constitution of the Republic and the laws and failure to observe the resolutions and verdicts of the organs of legal authority, and

2. to separate citizen JOSE MANUEL ZELAYA ROSALES from the post of Constitutional President of the Republic of Honduras.

ARTICLE 2. To promote citizen ROBERTO MICHELETI BAIN, currently President of the National Congress, to the post of Constitutional President of the Republic, for the time which remains to complete the term of office and which expires on the 27th of January 2010.

ARTICLE 3. The present decree becomes effective at the end of the approval of two-thirds of the vote of members who belong to the National Congress and thereupon the execution is immediate.

The key words in this decree are ”disapprove”, “separate” and ”promote”. Let us look at them individually:

The disapproval of the behavior of any public official of the State is not within the power of the National Congress, but of the Judiciary, and cannot be carried out without previous legal actions being taken. A hearing must be opened against the Official whose case is to be heard.

In this Trial it is self evident that the accused shall be presumed innocent until the opposite has been proven. It is after due process of law has taken place that the Judiciary may “Disapprove” the behavior of such an Official, and consequences may then ensue in the form of a valid judicial sentencing. Thus, National Congress is here usurping functions that legally do not belong to it.

The President of Honduras is elected by equal and secret vote of the people of Honduras and its citizens, for a period of four years. There is no such thing like an impeachment in the Honduran constitution (as happened to President Nixon in America) and even less some other kind of disposition or rule which allows Congress to remove the President, under no circumstance.

If it should be considered that the President, or any other public official, has broken the law, due process must be followed to accuse him of such violations as deemed to have taken place. He must be declared in due cause by Congress, and the supposed violation must be proven beyond reasonable doubt.

In the context of the illegal removal of a President this term would be seen as funny, were it not for the serious and tragic consequences it has entailed for the Honduran people. In the first place “promotion” means to be placed in a better situation than the previous one. By implication, this means considering the presidency of the legislative body (Congress) as inferior to the Executive, which in any republican form of Government is ridiculous. The three powers - legislative, judicial and executive - are equal, equally important and honorable.

If the Constitution does not give Congress the authority to remove the President, much less does it have the legal power to “promote” its own president to preside the Executive branch of State. Congress is here usurping faculties and powers that only the Honduran people have. As if not enough, it reads “constitutionally Promote”, when it is totally clear that nowhere does the Honduran Constitution give this possibility and power to the Honduran Congress.

The famous Honduran lawyer Edmundo Orellana Mercado comments the following in relation to this Decree: “This Legislative Decree does not resist the slightest legal analysis. It has as many violations of the Constitution as the resolutions it states”.

It is important to consider the procedure followed - even if illegal - to justify and carry out the removal of the President Zelaya, mainly because it affects his reinstatement. A legal principle in the countries of written law states that “legal decisions are undone by reversing the procedure by which they were carried out”.

The Guaymuras Dialogue and the Tegucigalpa San José Agreement:
Based on the San José Agreement, proposed by the President of Costa Rica, and Nobel Prize for Peace, Oscar Arias, a further dialogue was instated, furthered by the international community , between the de facto government of Micheletti and the legitimate Government of President Zelaya.

The first point states, inequivocally, that reinstatement without conditions of President Zelaya to the post for which he was elected by the Honduran people, namely as Constitutional President, is a sine qua non condition for the restorement of constitutional and legal threads in the Honduras.

Originally accepted by the coup participants, with the idea of projecting an image of willingness to peacefully solve the confrontation brought about by the brutal violation of laws by the actions of the june 28th, it was actually instrumentalised to postpone, rhetorically confuse and stretch out the discussions, in an effort to be able to reach the date of general elections November 29th 2009 still in control of government agencies.

These elections were already condemned and were not to be recognized by the international community. Elections carried out in a militarized country, with no international overseers and with the obvious intent of legitimizing and prolonging the Coup d'état, can not be deemed valid. These elections shall only to be legitimate and recognized if the legal President of the country is reinstated to his position at the time of elections.

A few weeks ago the representatives of President Zelaya, tired of trickery and dilations by the putsch representatives, declared the dialogue a failure and withdrew from further discussions. However, a recent intervention on the part of the OAS and the American State Department forced the coup group, by this time totally isolated by the international community, to accept the reinstatement of President Zelaya.
The withdrawal of President Zelayas representatives happened specifically because of a stalemate in the discussions, around the point of legal procedure for reinstatement. Dictator Micheletti insisted it should be carried out by the Supreme Court (of which he boasts total control), but Zelayas group sustained its position that this should be carried out by the National Congress.

The timely intervention of the international community helped define the fact that Congress, in a meeting that should be held on Tuesday November the 3, should “recur the Executive to its situation prior to June 28” … in other, simpler, words to reinstate President Zelaya to his legal position.

From the facts we have presented it can be logically concluded that it is up to the National Congress of Honduras to undo the legal monstrosity they themselves caused to happen, by this totally illegal and unconstitutional “Decree” to depose Mr. Zelaya on June 28.

The reinstatement of President Zelaya is the only action which can guarantee the minimum and constitutional provisions and conditions, that would enable the international community to recognize the November 29th elections in Honduras at this time.

It is to be hoped and celebrated that the reinstatement of President Manuel Zelaya, as Honduran Constitutional President, shall be carried out on November the 5th without further dilations, manipulations and ado by the people who have organized this coup, of negative consequences for Latin America, and tragic ones for the Honduran people.