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Honduras Supreme Court: It Was "Common Knowledge" That Zelaya Was No Longer President UPDATE

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"The question is," said Humpty Dumpty, "which is to be master -- that's all.

In his suave but deceptive Los Angeles Times article ("Honduras' non-coup," Jul. 10) on the current Honduras crisis, Miguel A. Estrada recommends reading the Constitution of Honduras and other relevant legal documents before pre-judging the situation.

I'm fluent in Spanish. Over the past several days, I've read the Supreme Court case documents, the Honduran constitution and pertinent parts of the Honduran penal code, the full text of laws regulating referendums and plebiscites and citizen participation in government, as well as news and opinion reports from Honduran, Latin American and Hispanic media. I also consulted experts in Latin American social and political issues.

I found that the legal and logical deficiencies were so obvious that no neutral observer could conclude that Manuel Zelaya received anything remotely resembling due process. Neither the Supreme Court nor Congress had the power to remove him from office, although -- interestingly enough -- it appears he could have been detained and tried for criminal conduct by a special tribunal made up of Supreme Court justices. As far as I can tell, the only immunity from prosecution under the constitution is for acts of war committed by military personnel. Instead, President Zelaya was deported in defiance of the Supreme Court's order to bring him before a court for arraignment.

First of all, President Zelaya did not, as Mr. Estrada claims, promote a referéndum, but an encuesta, a survey. Proposition 8 was a referendum, an electoral process supervised and tabulated by a legally constituted election authority. The opinion polls about it were surveys. The official title was "Encuesta de Opinión Pública Convocatoria Asamblea Nacional Consituyente (Survey of Public Opinion Convoking a National Constitutional Convention) and it was to be carried out by the National Institute of Statistics, not a legally authorized electoral body, using a survey form, not a ballot.

Mr. Estrada asserts, "It is also worth noting that only referendums approved by a two-thirds vote of the Honduran Congress may be put to the voters." Actually, the Constitution does not vest conducting referendums in the Congress, but regulating how they are carried out. The two-thirds vote applies to certain protected amendments that are "set in stone" and cannot be changed. President Zelaya had ample power to carry out the survey under the Citizen Participation Law of 2006. Five days before the survey was to be put before the people, Congress passed a law forbidding referendums and plebiscites (another electoral process) within 180 days of an election. The law did not mention encuestas. Furthermore, the constitution specifically protects freedom of research.

"Article 239 specifically states that any president who so much as proposes the permissibility of reelection 'shall cease forthwith' in his duties," Mr. Estrada writes. Curiously, Article 239 is nowhere mentioned in the Supreme Court papers. No one in all the discussions I've read so far has been able to come up with a single statement in which President Zelaya mentions continuing in office.

Mr. Estrada punts that issue by writing that "the only conceivable motive for such a convention would be to amend the un-amendable parts of the existing constitution." Actually, the Honduran constitution has been modified 165 times in 22 years since the last version was approved in 1982. UPDATE July 14, 2009 7:54 am: On Oct. 24, 1982 various congressmen lead by Roberto Micheletti himself tried to introduce legislation calling for a constitutional convention and called for the suspension of articles 373, 374 and 374 which forbid modifying clauses concerning reelection, changing the national borders and other issues that are "set in stone."

Extending presidential term limits could not even be brought up at the proposed constitutional convention, as the old constitution would still be in force. Moreover, President Zelaya would have long been out of office when the proposed convention were actually convoked, as his term ends in November. If the proposed referendum were written to exclude the articles that Mr. Estrada correctly points out cannot be changed, it would comply with the current constitution. It's really quite a reach to accuse him of acts that he did not propose nor can be shown to have contemplated.

Despite this, "everyone knew" turns out to be an argument the Supreme Court also used. On pages 80-81 of the Supreme Court dossier, without offering any constitutional reference, it stated that it was "common knowledge" that he was no longer president, thereby denying him the legal privileges he would have qualified for as a "highest official" accused of criminal conduct. Under Article 416 of the Honduras penal code, he would have been arraigned, tried and sentenced by magistrates drawn from the court itself, with ample protection for his various special legal rights.

Conveniently relieving themselves of these responsibilities, the justices ordered him to be arrest in secret and remanded him to a common criminal court to be tried on charges of treason, usurpation of powers, defiance of court orders and other crimes. The army then defied the Supreme Court order and hustled him off into exile, which was in itself a crime, one of the generals himself admitted later.

Mr. Estrada cynically dismisses President Zelaya's predicament as an immigration matter. More realistically, it's a political matter. Manuel Zelaya has been an incendiary figure in Honduran politics. He raised the minimum wage, allied himself with Hugo Chávez, and gave both the Honduran army and the Supreme Court the finger, clearly making himself a candidate for crucifixion. As far as I'm concerned, he was wrong to go ahead with the encuesta after being forbidden to do so by the Supreme Court, whether or not the court's decision made any sense. To me, it was like the Al Gore decision, illogical, political and without support in constitutional law -- but still a decision by the nation's highest legal authority.

I also feel that Hugo Chávez was also wrong to encourage Zelaya to rupture the status quo. The Obama administration may find it politically convenient to tolerate Chávez, but from a strategic point of view they can't accept his meddling in the internal politics of other nations and disrupting their social peace. Honduras may now be facing civil war. No matter who wins, the same people will still come out on top, just as they did in El Salvador. I think that incremental change would have been more effective.

Coup defenders argue that neither the OAS nor the nations of the world have any right to tell Honduras what to do about its internal affairs. The entire operation violated the terms of the membership of Honduras in the Organization of American States. The Honduran ruling class has been propped up for many years by foreign aid, much of it coordinated or dispensed by the OAS. Now, after having panhandled the world for decades to enrich themselves, they want to tell the OAS to shove it.

One of the most interesting conversations I had while doing my research was with John Dyson, Prof. Emeritus of Spanish and Portuguese, Indiana University, Bloomington, one of the experts who assisted me in untangling some of the most twisted Spanish legalese I have ever had the misfortune to try to comprehend.

At the end he wrote, "This whole thing reads like the first draft of a very bad plagiarism of a García Márquez story." I agreed, but felt only Jorge Luis Borges could have done it full literary justice. Lewis Carroll would have handled it perfectly.

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master -- that's all.

--From Through the Looking Glass

UPDATE July 16, 2009 7:24 am

Honduran prosecutor's house machine-gunned after he denounces coup on CNN

The family of Honduran public prosecutor Jari Dixon Herrera were attacked by police on Tuesday shortly after he made statements to CNN en Español and other international media in Washington denouncing the recent military coup in Honduras. Dixon"s mother"s house, located in the town of Talanga, was first shot at repeatedly by police agents with automatic weapons. The agents then broke the door of the house down and entered the residence, beat Dixon"s mother and arrested and took away his brother.

The attack against Jari Dixons family comes in the wake of the killing of two leaders of the United Democrat Party. On Saturday evening, hooded armed men stormed the house of Roger Bados of San Pedro Sula and shot and killed him in front of his family. That same night, Ramon Garcia was ambushed and killed in the street close to his home in Santa Barbara.

UPDATE July 17, 2009 12:06 PM

Madre de Jari Dixon descarta atentado
Jari Dixon's mother denies attack

In brief: She told La Prensa that police responded to a household violence call involving Dixon's son and daughter-in-law. I wrote to him about it and have not yet received an answer.

UPDATE: July 18, 2009 7:27 am

This will probably be my last update. I feel that's it's needed for the historical record, as this is one of the few articles on the web that offers a comprehensive view in English of the legal issues. In the comments, you'll note a question about why Zelaya would have gone to all this trouble if not to seek reelection. On further research, however, I found out that the reasons for calling a constituent assembly are far more serious than reelection (which can't be modified anyway). Zelaya was aiming at broadening democracy in Honduras by bringing into question issues of criminal prosecution, land tenure, military immunity and the relationship between the presidency and Congress, among others.

From "What Advocates Hoped to Change in the Honduran Constitution"

An interesting statement posted by Honduran indigenous groups, dated July 1, calls for the restoration of the Zelaya government. It includes as its last clause

Jamás claudicaremos a nuestra lucha histórica por una reforma a la constitución política de nuestra patria, en donde se reconozca el Estado multicultural y multilingüe en Honduras; los derechos particulares de nuestros pueblos; por una democracia participativa e incluyente; al consentimiento libre, previo e informado; al reconocimiento y defensa legitima de nuestros territorios y recursos naturales; a la libre determinación de nuestros pueblos; entre otros, así, como lo establecen diversos Tratados, Convenios y Declaraciones internacionales, principalmente el Convenio 169 de la OIT y la Declaración de la Naciones Unidas sobre Derechos de los Pueblos Indígenas.

We will never back down in our historic struggle for a reform of the political constitution of our country, in which will be recognized a multicultural and multilingual State in Honduras; the specific rights of our peoples; a participatory and inclusive democracy; free, prior and informed consent; the recognition and legitimate defense of our territories and natural resources; the free determination of our peoples; among others, as are established in numerous treaties, agreements, and international declarations, principally ILO Agreement 169 and the Declaration of the UN concerning the Rights of Indigenous Peoples.

The points listed echo several made by Rodolfo Pastor Fasquelle in his editorial in El Tiempo discussing what proponents of constitutional reform saw as important potential outcomes.

ILO 169 of the UN concerns "indigenous and tribal peoples" and their rights. One of the more unexpected things happening in Honduras over the past 20 years has been the public visibility of such minority groups, and the increasing voice they have had in political action. ILO 169 challenges signatory countries, including Honduras, which ratified it March 28, 1995. ILO 169 calls for specific treatment to be accorded to indigenous peoples in recognition of their status as original inhabitants and as minorities whose cultures are often most threatened by nationalism and development. As Pastor Fasquelle pointed out, the present Honduran constitution does not conform with this and other similar international agreements.

Since all of these modifications can be carried out within the current constitution, they could not be used as evidence of some kind of crime on his part. In fact, there's really not much basis for any of the accusations of criminal acts. This was an entirely illegal military coup that was speciously legitimatized at what appears to have been gunpoint.

Jules Siegel's reporting and social criticism have appeared over the years in Playboy, Best American Short Stories, Library of America's Writing Los Angeles, and many other publications. He has lived and worked in Mexico since 1981, in Cancun since 1983.