Why Zelaya's Actions Were Legal
By ALBERTO VALLENTE THORENSENIn 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 Meanwhile, the rest of humanity follows the events, as spectators of an outdated event in Latin America, which could set a very unfortunate undemocratic precedent for the region.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.
Alberto Valiente Thoresen was born in San Salvador, El Salvador. He currently resides in Norway where he serves on the board of the Norwegian Solidarity Committee with Latin America. He wrote this column for Rebel Reports.
Dissecting the Coup in Honduras
Canadian investors could benefit from military government
Over the past week the Honduran Congress has suspended basic constitutional rights including freedom of association and freedom of movement through the imposition of a military curfew and checkpoints. A decree allows for warrantless arrests and detention without charge. Geoff Thale, with Foreign Policy in Focus, reports that leaders of civil-society organizations have gone into hiding. The National Commission for the Disappeared reports over 300 people have been detained. Freedom of the press has been drastically curtailed in what Reporters Without Borders has called “either closely controlled or nonexistent” coverage of events through detention of journalists as well as closure of local TV and radio stations and disruption of foreign networks such as CNN and Telesur. Government electrical blackouts and shutdown of phone services have further limited freedom of information.
Over the weekend with Zelaya’s expected return, political repression stepped up. Human Rights Watch expressed concerns over “serious abuses against demonstrators… and approval of an emergency decree suspending fundamental rights.” While military aircraft and soldiers blocked Zelaya’s landing, troops fired tear gas, water hoses, and live bullets on the crowd, resulting in at least 2 deaths including of a 17-year old boy. Police and armed forces clashed with protestors across the country, including against 100,000 public sector workers who launched a general strike. Social movements including peasant-based Via Campesina and the Civic Council of Popular and Indigenous Organizations are reporting increased police surveillance since their public condemnations of the coup.
Many commentators, including in the Straight here and here, have repeated the mantra of Zelaya attempting to illegally extend his term in office as the raison d'être of the political turmoil. In a world of media spin-doctors, becoming passive recipients of sound-bites rather than active analysers might lead us to the same conclusion.
In an extensive article, Alberto Vallente Thorensen notes that Zelaya intended to perform a non-binding consultation about the formation of an elected National Constituent Assembly. If approved and legislated, any re-writes by this Assembly to the 1982 Constitution, drafted in an era of military dictators and US-sponsored counter-insurgencies, would have to be approved by the Honduran people. It is speculation as to whether the Assembly would have re-drafted provisions regarding presidential terms and if so, whether the Honduran people would have voted to accept this. Such a lengthy consultative process is arguably not indicative of a power-hungry dictator; and teacher, student, indigenous, peasant, and union groups supported the referendum. Yet Congress and the military opposed Zelaya’s proposal and head of the military General Romeo Vasquez refused to distribute materials for the non-binding referendum. (Vasquez became a key leader in the coup and is a graduate of the infamous School of the Americas, aka School of the Assassins, located in Fort Benning where over 60,000 Latin American soldiers were trained in US-sponsored counterinsurgency operations).
It is also unclear whether or not the Supreme Court had a legal basis for its ruling against the referendum being held during an election year since Zelaya’s actions were invoked under the Honduran Civil Participation Act approved by the National Congress and Supreme Court of Justice in 2006. At a fundamental level, one does not have to be a Zelaya supporter to understand that this legal question on the division of powers is not one for the military to decide. Even the army’s top lawyer, Colonel Herberth Bayardo Inestroza, admitted that the overthrow was illegal and the 4th Army Battalion from the Atlántida Department has declared that it will not respect orders from the Micheletti government.
Furthermore, if the military actions had popular support, why would such brutal repression against large mobilizations of diverse sectors of Honduran society be needed?
Zelaya’s move to the left may have been pragmatic rather that a genuine ideological shift; certainly actions such as his stated desire in April to monitor cell phones are not ones that human rights defenders could condone. However, speaking out against the coup does not imply an endorsement of Zelaya. In fact the hyper-focus on Zelaya (or Chavez as Zelaya’s mentor) distracts from the broader economic, political and social forces which have been evolving in Honduras.
Though Zelaya signed the Central American Free Trade Agreement in 2004, he was forced to speak out against the devastating effects of unfair trade policies that were increasing poverty. He led Hondura’s entrance into the leftist trade bloc ALBA and Petrocaribe to reduce dependence on the US market, instead relying on the practical necessity of discounted oil from Venezuela. Although not opposed to all mining operations, in 2006 he declared a moratorium on the granting of new mining concessions, partly in response to large demonstrations by Indigenous people, many targeting Canadian mining empires such as Goldcorp. Zelaya also legislated a 60% minimum wage increase following labour actions, and measures to nationalize energy generation plants and the telephone system.
Much like the coup against Aristide in Haiti, this coup was not carried out to preserve constitutional order or the will of the people; it was carried out to preserve the position and institutions of local land-owning, military, business, and bureaucratic elites and a global hegemonic regime that serves global capitalist and imperialist interests. From 1996-2006 Canadian companies were the second-biggest investors in Honduras and Canada is seeking a free-trade agreement with Honduras. Perhaps this is why Desjardins Securities analyst Martin Landry noted that the coup could help the garment-producing giant Gildan if it leads to a more pro-business government. And perhaps why Canada is the only country in the hemisphere that has not called for Zelaya's return. Although the US has condemned the military actions, the US is maintaining a military base in Honduras and according to historian Greg Grandin, “The Honduran military is effectively a subsidiary of the United States government… So if the US is really opposed to this coup going forward, it won’t go forward.”
The final outcome is unclear and if and under what circumstances Zelaya will return. Regardless, the wave of military and government repression will have significant impacts on the strength and unity of growing grassroots social mobilizations in Honduras especially leading upto the November elections. They are the ones calling for our solidarity in the restoration of their democratic processes and also in their ongoing transformative struggles for freedom from exploitative international trade, labour, and environmental polices.
Harsha Walia is a Vancouver activist, writer, and researcher. A version of this article originally appeared at Straight.com. Photo of a July 4 demonstration in Tegucigalpa by Sandra Cuffe.
What respect for the Constitution?
Efraín Moncada Silva, La Tribuna, October 1, 2009
Only the torrent of lies, fabrications and assumptions of the media has made it possible for an unconscious sector of the population comes to believe in false positions, to the extent of becoming naive allies of the economic interests of those who long for the Republican life, who have enjoyed privileges granted under the public authorities, taking advantage including the aircraft, which is part of the national property of the state public domain belonging to the whole nation.
How can the people who really have broken the Constitution talk about respect for it ?
How can the ones who truly usurped power legally constituted and have commited the crime of treason to the country, whose responsability is alienable talk about crime?
With what moral authority can those who violated constitutional guarantees and rights of the holder of the Executive power speak for the commission of alleged crimes of the deposed ruler ?
With how much cynism do those who recurred to a fake resignation to justify the removal of the Constitutional President talk about respect to the Constitution and to the law?
Despite the media siege , which in an orchestrated hellish way they manipulate the news and information, both outside and inside, systematically misinforming public opinion, most of the Honduran people after June 28 have awakened civic conscience, have found their true socio-political interests, they know now who are against their rights and aspirations and their peaceful resistance today is complying with the duty prescribed in Article 40, No. 1) of the constitution that commands: "observe, uphold and ensure that the Constitution and laws are accomplished ".
Those who want to hide the true facts with a false picture of what actually happens, must remember that the lies, fabrications and assumptions may surprise, confuse and mislead a few and for a short time but can not surprise, confuse or mislead many for long.
Former Presidents Flores and Ricardo Maduro, of the coup perpetrators Zelaya
Blanche Petrich, La Jornada, October 2, 2009In a detailed description of what happened from the day of the coup to date, called the
draft,the Zelaya government says these are the material authors of the constitutional breakdown in the
first category.
In this same range he accuses the presidential candidates Elvin Santos, the Liberal Party (the same Zelaya), and Porfirio Lobo, the National Party. Both leaders called their banks and secured a parliamentary majority that
breakingthe constitutional orderwill determine the removal of Zelaya and the appointment of de facto president Roberto Micheletti, after claiming the existence of a letter of resignation to the president who ultimately proved apocryphal.
The paper attributed the responsibility of
second categoryMicheletti, state Attorney General Luis Alberto Rubi, the president of the Supreme Court Jorge Alberto Rivera, Judge Thomas Arita and Cardinal Oscar Andrés Rodríguez.
As executors drawn to the military leadership: the joint chief of staff Gen. Romeo Vasquez, the heads of the three weapons-General Miguel Angel Garcia, General Luis Suazo and Admiral Prince Juan Pablo Rodriguez, Gen. Daniel Lopez Carballo, former head of Joint Chiefs of Staff in the administration of former President Flores and Captain Billy Joya Améndola, currently minister-counselor of Micheletti.
Joya is indeed a
The preliminary report lists the following crimes and violations of law committed by the coup plotters: assault, kidnapping and exile of Zelaya and the subsequent manufacture of a case without trial or due process; crime of falsification of public documents (the false resignation of Zelaya) participation of the prosecutor and judges of the Court in the plot to the coup, political persecution cabinet members, illegality and violation of individual rights and usurpation of power.
In the latter offense incur all officers of the coup regime, which, according to the radiograph by the constitutional government, excel relatives and close associates of Flores and former employees and family members of the current government and military coup.
Entre otros, figuran la ministra de Finanzas Gabriela Núñez, que ocupó el mismo cargo en el gobierno de Among others, included Finance Minister Gabriela Nunez, who held the same position in the government of Flores, the daughter of a minister of the dictatorship of Oswaldo López Arellano, Foreign Minister Carlos Lopez Contreras, a diplomat who defended the presence of the Nicaraguan contras in Honduras in the critical years 80, Deputy Foreign Minister Marta Lorena Alvarado, daughter of a minister of the dictatorship of Colonel Lopez Arellano, Rafael Pineda, former President of Congress during the regime of Flores and government official of the General Policarpo Paz.
jewel:who as a young officer was trained in the 70s in the shade of Argentina's Guillermo Suarez Mason-major of the repressive military dictatorship, who is responsible, among other crimes of the theft of hundreds of babies, and returned to Honduras in the 80 to command the Intelligence Battalion 3-36, responsible for the kidnapping and of the disappearance of political opponents, and founded death squads as Lynx and Cobra. . The former soldier has several pending criminal trials, which did not prevent his appointment to a key post of the presidency imposed.
The preliminary report lists the following crimes and violations of law committed by the coup plotters: assault, kidnapping and exile of Zelaya and the subsequent manufacture of a case without trial or due process; crime of falsification of public documents (the false resignation of Zelaya) participation of the prosecutor and judges of the Court in the plot to the coup, political persecution cabinet members, illegality and violation of individual rights and usurpation of power.
In the latter offense incur all officers of the coup regime, which, according to the radiograph by the constitutional government, excel relatives and close associates of Flores and former employees and family members of the current government and military coup.
Entre otros, figuran la ministra de Finanzas Gabriela Núñez, que ocupó el mismo cargo en el gobierno de Among others, included Finance Minister Gabriela Nunez, who held the same position in the government of Flores, the daughter of a minister of the dictatorship of Oswaldo López Arellano, Foreign Minister Carlos Lopez Contreras, a diplomat who defended the presence of the Nicaraguan contras in Honduras in the critical years 80, Deputy Foreign Minister Marta Lorena Alvarado, daughter of a minister of the dictatorship of Colonel Lopez Arellano, Rafael Pineda, former President of Congress during the regime of Flores and government official of the General Policarpo Paz.
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