The (Arguably) Legal Coup in Honduras

by Kevin Jon Heller

I have no expertise in this area, so I’m not going to opine on the legality of Zelaya’s ouster.  Two things, however, are worth noting.  First, the report that Julian mentions was not written by the Congressional Research Service — a mistake that others on the right have made.  It was written by the Law Library of Congress.  Second, the report is not exactly reassuring concerning whether Zelaya’s ouster was actually legal.  Its conclusion is ultimately a formal one, resting on the idea that any interpretation of Honduran law is acceptable as long as the relevant procedures were followed:

Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.

The actions of both the Honduran National Congress and the Honduran Supreme Court, however, are deeply troubling.  First, the National Congress’s decision to remove Zelaya seems to be based on an extremely questionable reading of the Honduran Constitution.  As the report notes, although the National Congress lost the power to impeach the President in 2003, it decided that it still had the “intrinsic” power to remove him as part of its constitutional right to “disapprove” the actions of “the administrative conduct of the Executive and Judicial Branches, the National Tribunal of Elections, and many other high officers of the State”:

The question of which Constitutional provision gives the National Congress the power to remove the President still remains. As noted above, Article 242 does not grant the National Congress the power to remove the President, but does state the line of succession. Although Article 205, Section 12 was not invoked in the Decree, that Section gives intrinsic power to the National Congress and must be analyzed. Article 205, Section 12 does not grant Congress the power to remove the President, but only to receive the Constitutional oath of the President and other high officers and to fill vacancies in the case that any of the officers were absolutely unable to discharge the powers and duties of the falta absoluta.

The only other article germane to this issue is Article 205, Section 20, giving the National Congress the power to approve or disapprove of the administrative conduct of the Executive Power. The reading of Article 205, Section 20 raises the issue of the meaning and scope of the word “disapprove,” whether a congressional disapproval of the resident of the Republic can be limited to censure or may also encompass the possibility of removal from office. An analysis of the facts of the case and the aforementioned constitutional provisions leads one to the conclusion that the National Congress made use of its constitutional prerogative to interpret the Constitution and interpreted the word “disapprove” to include also the removal from office. A systematic reading of the different constitutional provisions dealing with the right of Congress to interpret the Constitution (such as Article 205, Section 10 and Article 218, Section 9) also indicates that the Honduran National Congress has the power to interpret the Constitution with general effect. This task is performed through interpretative laws, decrees, or other acts. One may conclude that the National Congress implicitly exercised its power of constitutional interpretation in the case of Zelaya when it decided that its power to “disapprove” the President’s actions encompassed the power to remove him.

Perhaps the report is correct that the National Congress had the intrinsic right to remove Zelaya, although it is difficult to understand why the Honduran Constitution would have provided for “impeachment” until 2003 if the National Congress could simply remove the President anytime it “disapproved” of his conduct.  The stronger argument seems to be the procedural one cited by the report: that the judiciary approved of Zelaya’s ouster.  But the Supreme Court’s actions are also troubling:

As stated in the answer to question II(a), above, the Supreme Court, based on its constitutional powers, heard the case against Zelaya and applied the appropriate procedure mandated by the Code of Criminal Procedure.

The Chief Prosecutor filed a complaint (requerimiento fiscal) against President Zelaya before the Supreme Court on June 26, 2009. The complaint: (1) accused the President of acting against the established form of government, treason against the country, abuse of authority, and usurpation of functions; (2) requested that the Court order the arrest of the President; (3) requested that the Court notify the President of the facts alleged against him; (4) requested that the President’s testimony be heard; and (5) requested that the President be suspended from office.

The Supreme Court, based on its constitutional and statutory powers, appointed one of its Justices to hear the process in the preparatory and intermediate stages. Following the procedure, the Justice admitted the complaint and issued an arrest and raid warrant. The process at the Supreme Court did not continue due to the events that occurred after Zelaya’s arrest.

In light of the fact that Zelaya was formally removed from office on June 28 by the Congressional Decree described above, on June 29, the Supreme Court unanimously ordered that the proceedings be forwarded to the Unified District Trial Court to continue through the ordinary proceedings established by the Code of Criminal Procedure, “given that citizen José Manuel Zelaya Rosales is no longer a high-ranking government official.” These ordinary proceedings are the ones applied to regular citizens in criminal cases.

In other words: the legality of Zelaya’s removal was addressed by one Justice of the Supreme Court, not by the Supreme Court as a whole; that Justice did not address whether the National Congress had lawfully removed Zelaya; and that Justice (seemingly) did not actually grant the Chief Prosecutor’s request to suspend Zelaya from office.  Instead, the Supreme Court addressed Zelaya’s as a purely criminal matter, treating Zelaya’s ouster as a fait accompli.

To be sure, all of the above may be completely legal under Honduran law.  If so, it is clear that Honduran law is in immediate need of reform — a “constitutional system” that (1) allows the legislature to “implicitly” oust a democratically-elected president despite lacking the power of impeachment and (2) does not require such an action to be reviewed on the merits by the judiciary before the president is removed from office is hardly worthy of the name.

ADDENDUM: The weakest aspect of the Library of Congress’s report is its cursory treatment of the Supreme Court’s actions.  If anyone out there knows more about how the Court normally reviews the National Congress’s constitutional interpretations, I hope he or she will weigh in.

POSTSCRIPT: Ah, the intellectual honesty of the defenders of the coup.  Here is how The New Republic‘s James Kirchik describes what the report says about impeachment: “Although the constitution does not contain specific information as to how a president can be impeached, the report did find that the Honduran Congress ‘used several other constitutional powers to remove President Zelaya from office’.”  And why doesn’t the constitution “contain specific information as to how a president can be impeached,” according to the report?  Because, as I noted above, “[t]he concept of the political procedure known as impeachment, previously contained in Article 205, Section 15 of the Honduran Constitution, was repealed by Decree 175-2003.”  Funny how Kirchik’s article doesn’t mention that.  Must be an oversight.

http://opiniojuris.org/2009/10/10/the-arguably-legal-coup-in-honduras/

6 Responses

  1. In Nixon v. United States, 506 U.S. 224 (1993), the U.S. Supreme Court held that an impeachment and trial in the Senate was not reviewable by the judiciary.  The case arose from the impeachment of a federal judge following his conviction for perjury.  During the “trial” in the Senate, a committee was appointed to hear evidence in the matter and report to the Senate as a whole, which then voted to oust Nixon.  Nixon sued on the theory that the appointment of a committee to hear evidence failed to comport with the Constitution’s requirement that impeachment proceedings be “tried by the Senate.”  The Court rejected this argument, holding the issue of what constitutes “trial by the Senate” to be nonjusticiable.

    To be sure, the Court in Nixon arguably departed from earlier case law in Powell v. McCormack holding that where an issue is merely one of constitutional interpretation, it is justiciable.  And even in Nixon, several justices concurred to say that questions about the propriety of impeachments proceedings are not per se nonjusticiable.  But it would nevertheless seem that in the U.S., the Constitution “does not require such an action [removal from office] to be reviewed on the merits by the judiciary.”  Indeed, even the procedures used in the removal are at least sometimes beyond the judiciary’s review.

  2. Of course, the National Congress didn’t impeach Zelaya; it couldn’t, because the Constitution doesn’t permit it.  So again, if the Honduran system doesn’t permit judicial review of the legislature’s determination that the Constitution gives it the “implicit” right to do what it cannot do explicitly, something is very wrong with that system.

  3. Of course, the Honduran constitution also forbids sending the president into exile, or handing him over to foreign nationals. This whole episode proves that a constitutional convention is necessary after all. The Honduran constitution is dysfunctional in innumerable ways. Simply putting Zelaya back under the old constitution isn’t enough. The junta justifies ousting him because he wanted to change the constitution. Well, as we can clearly see, the constitution has some major problems–like a seeming loophole that has been used to justify the ouster of presidents who want to change the constitution.

    Hondurans deserve the chance to rewrite their constitution so this situation doesn’t arise again.

  4. Response…Yes Hondurans deserve to rewrite their constitution but not because one man with a mob says he is going to do it. Who tells the public that “not even the Supreme Court  will stop him”I think first a transparent vote should be organized  by the Congress. The congressmen in a democracy are voted into power I believe to represent the people? Since when is a democracy ruled by a street mob?

  5. Kevin —

    Is it relevant that the Art. 205, section 10 explicitly grants the power of constitutional interpretation to the legislature?

    And do your views above mean that the United States does not have a “constitutional system”?  As noted above, under Nixon, the Senate’s alleged failure to comply with the constitutionally prescribed impeachment procedure is unreviewable.

    JHA

  6. To take the conversation on a slightly different tangent, aren’t the Brazilians in pretty blatant violation of Article 55 of the Vienna Convention on Consular Relations?

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