Tuesday, November 24, 2009

Reason #6 Why Manuel Zelaya must not return to power

Reason #6 A return will in effect declare illegal all resolutions and judicial orders to remove Zelaya loop siding the check and balance between powers

A return as President will in effect declare “illegal” all the resolutions and judicial outcomes made by the Honduran Supreme Court and the Honduran National Congress, who mandated the removal of Mr. Zelaya as President when he attempted to call a National Constitutional Assembly, which in practice declares null and void our 1982 Constitution. This will further restrict even further the governance and institutions’ ability to govern. We certainly know how much we need to evolve in this area.

We do need to enter into careful analysis and discussions after the commotion is over and we have a new government on how Zelaya’s removal process was handled. Zelaya's exile was without doubt unconstitutional as our Constitution does not allow the exile of Honduran citizens. The rationale according to the military legal counsel's public interviews a couple of days after Zelaya's removal, was the "doctrine of necessity" as the military thought that Zelaya's imprisonment would cause a bloodbath.This seems like a feasible scenario, especially after Zelaya's June 27 violent invasion of the Air Force base in Tegucigalpa to rescue the confiscated ballots and boxes for the "cuarta urna" by the Supreme Electoral Tribunal, shipped by the way from Venezuela. The military legal counsel also indicated they were prepared to face legal actions as a consequence of this decision.

A serious analysis of what happened can lead to robust proposals on how to modify the Constitution (if needed) to avoid the political crisis we had with Zelaya. This, by the way, is one more of the fallacies perpetuated by many people. The Honduran constitution can be changed and has been changed over time. The exception of course are those 7 articles considered unmovable of which the prohibition of re-election is perhaps the only one relevant to Zelaya. Please see the chronology of all the changes made at a site from Georgetown University.

Certainly, the analysis process needs to be part of the Guaymuras-Tegucigalpa pact, which contemplates a Truth Commission. We probably need to devise the specific policies and laws that can handle the removal of a president once she/he starts doing illegal acts against the Republic. Something similar to the impeachment process in the U.S.


  1. Jose, Agree with your last point regarding removal of the Executive. Lack of an impeachment process certainly didn't help when it came to throwing out Zelaya - and it probably led, at least indirectly, to the un-Constitutional ejection of Zelaya from the country. Looking at the Georgetown markup of the Constitution, I suspect that a removal process could be included via the same procedures cited in the marked-up Constitution.

    Finally, I sympathize with the military. They were handed a no-win situation by the other branches of government at that point, and I agree with their tactical assessment of the situation: Zelaya was out of control, he'd shown himself to be capable of violent acts, and he clearly had no interest in complying with the Constitution. Left to his own devices, he would have done whatever he wanted to stay in power - which didn't happen, luckily...

  2. Interesting that it was Zelaya himself who forced the military into the political process when he tried to obtain General Romero Velasquez support for the "Cuarta Urna". Zelaya knew that the only body who has the capacity to implement the logistics for a consultation/vote/referendum at a national scale, is and continues to be, the military. That was a tough decision to make for anybody as there was no win-win situation. Interesting to note that Zelaya's Defense Minister -Mr. Edmundo Orellana- re-signed in protest when Zelaya tried to force the Armed Forces to support the illegal "cuarta urna. Mr. Orellana seems to be one of Zelaya's strong supporters today.

  3. correction... there was no win-win answer...

  4. Tambopaxi: Could you elaborate on Zelaya's being "capable of violent acts"? I'd like to hear your thoughts on June 27 vs. June 28 specifically

    Jose: I admire your thoughtful analysis, but I'm not sure I follow your logic in this post.

    To me it seems you're saying:

    1. As a given, Zelaya's removal was unconstitutional but not necessarily morally wrong. In fact it may have been necessary to prevent the effects of the "Cuarta Urna," which would have been Zelaya installing himself as a Chavista type leftist dictator.

    My question to you is:
    If the military violated the constitution to PREVENT Zelaya from doing the same (and the express wishes of the Supreme Court), and then the supreme court and national congress blessed the military's violation of the constitution subsequently, why are the coup-supporters actions more justifiable than Zelaya's?

    Wouldn't it make sense that if Zelaya's removal were unconstitutional, illegal, wrong, etc then all subsequent actions of the Michelletti government would also be invalid?

  5. Let me respond to the comparison of the acts of June 27 vs. June 28 in a complete post a bit later. The short answer is that anybody, but specially a President, who climbs a public transport bus, commanding a violent mob, disregarding the potential safety and life of people involved, with the intention of "liberating" the "Cuarta Urna" ballots and boxes, by forcing entry to a restricted area, to me shows a person capable of visceral responses and thus violence.

    The argument in my post was not that the removal itself was unconstitutional rather that what happen after his removal, the forced exile to Costa Rica, is indeed unconstitutional.

    These are two separate acts that are disconnected in terms of the legal outcome, as his exile does not invalidate his legal removal. This is the same reasoning as why we can say that Zelaya's removal is disconnected with the elections.

    If his removal were indeed unconstitutional, then you are right about everything done after by Micheletti would indeed be invalid. This is where the upcoming judgment and examination (plus and examination by the Truth Commission) by the Supreme Court, Procuraduria General de la Republica, and the Attorney General, would be critical to elucidate this issue. I don't see how they track back in their decision.

  6. Joel, I just came back to this posting, and so it looks like Jose beat me to the answer (with which I agree, btw). Zelaya had clearly gone completely off the Constitutional reservation, and he'd demonstrated in a violent way, as Jose mentions, that he was willing to go for broke.

    I don't have the slightest doubt that if the SC, the Congress, and the TSE, together or individually, had backed down, Zelaya would have tried to dissolve or do away with those entities. This is pretty much what Fujimori and Serrano tried to do, respectively, in Peru and Guatemala, back in 1993, and they ended up in the same situation that Zelaya's in now; he was headed for an auto-golpe, and they stopped him.

    I agree with Jose again, in saying that the Army blew it in hustling Zelaya out of the country (at the behest of the Congress)that was unconstitutional, but in fairness to the Army and the rest of the government, it was clear that Zelaya was in a hurry and that he didn't care about due process nor the Constitution (which contains no formal removal process like the U.S. Constitution, btw). In this light and given the extraordinary circumstances, extraordinary measures were called for - and they took them.

    On the other hand I believe that the Congress and the SC did absolutely the right, Constitutional, thing in declaring Zelaya in violation of the Constitution, y por eso, destituido...

    I would disagree with Jose regarding validity of the Micheletti government. As I say, the decision that Zelaya had to leave office was absolutely correct, and on his departure, an interim government had, per force, to replace him - and did so, correctly, as I argue.

    The Army flubbed it in executing the sentence, if you will, and so, as Jose says, there should be some consequences to that mistake. There was no mistake (I feel) in deciding to remove the man, however, and so I consider the Micheletti government to be valid...

  7. Just to clarify my statement. Micheletti's actions would have been invalid, if and only if, Zelaya's removal (not his expulsion/exile as I said this is a separate matter) was illegal.

    My belief continues to be that Zelaya's removal was indeed legal, justified and as Tambopaxi puts it pressing/urgent. This view seems to be confirmed by the analysis rendered by the Honduran Supreme Court and the Procuraduria General de la Republica (I think this is similar to the US GAO).

    Thanks to you for contributing to the discussion.