The following was written by Octavio Sanchez. He is a Honduran lawyer (J.D.
Universidad Nacional Universidad Nacional Autonóma de Honduras; LL.M.
Harvard Law School). He also was a presidential advisor from 2002 – 2005. He
served as the Honduran Minister of Culture from 2005 – 2006.
Octavio is tremendously more qualified that I am to discuss the constitution
and what happened this past weekend. I’d like to publicly thank Octavio for
taking the time to write this powerful piece describing the reality of what
happened according to the Honduran constitution.
If you are not familiar with the country’s history and the Honduran
constitution it is almost impossible that you would understand what happened
here this past weekend. In 1982 my country adopted a new Constitution to
allow our ordered return to democracy. After 19 previous constitution -two
Spanish ones, three as part of the Republic of Central America and 14 as an
independent nation- this one, at 28, has been the longest lasting one. It
has lasted for so long because it responds and adapts to our changing
reality, as seen in the fact that out of its original 379 articles, 7 of
them have been completely or partially repealed, 18 have been interpreted
and 121 have been reformed.
It also includes 7 articles that cannot be repealed or amended because they
address issues that are critical for us. Those unchangeable articles deal
with the form of government, the extent of our borders, the number of years
of the presidential term; two prohibitions -one to reelect presidents and
another one to change the article that states who can’t run for president-
and one article that penalizes the abrogation of the Constitution.
In these 28 years Honduras has found legal ways to deal with its own
problems. Each and every successful country around the world lived similar
trial and error processes until they were able to find legal vehicles that
adapt to their reality. France had 13 Constitutions between 1789 and the
adoption of the current one in 1958 which has passed 22 constitutional
revisions. The USA had one before this one which has been amended 27 times
since 1789 and the British –pragmatic as they are- in 900 years have change
it so many times that they have never taken the time to compile their
Constitution into a single body of law.
Having explained that, under our Constitution, what happened in Honduras
this last Sunday? Soldiers arrested and took out of the country a Honduran
citizen that, the day before, through his actions had stripped himself of
the presidency of Honduras.
These are the hard facts. Last Friday Mister Zelaya, with his cabinet,
issued a decree ordering all government employees to take part in the
“Public Opinion Poll to convene a National Constitutional Assembly”
(Presidential Decree PCM-020). The decree was published on Saturday on the
official newspaper. With this event, Mister Zelaya triggered a
constitutional protection that automatically removed him from office.
The key legal elements for that constitutional protection to be triggered
are the following ones. Constitutional assemblies are convened to write new
constitutions. In Honduras, you have 365 articles that can be changed by
Congress. When Zelaya published that decree to regulate an “opinion poll”
about the possibility of convening a national assembly he acted against the
unchangeable articles of the constitution that deal with the prohibition of
reelecting a president and of extending his term. His actions showed intent.
How is that kind of intent sanctioned in our Constitution? With the
immediate removal of those involved in the action as stated in article 239
of the Constitution which reads: “No citizen that has already served as head
of the Executive Branch can be President or Vice-President. Whoever violates
this law or proposes its reform, as well as those that support such
violation directly or indirectly, will immediately cease in their functions
and will be unable to hold any public office for a period of 10 years.”
Notice that the rule speaks about intent and that it also says immediately
–as in instant, as in no trial required, as in no impeachment needed.
This immediate sanction might sound draconian, but every country knows its
own enemies and it is the black letter of our supreme law. Requiring no
previous trial might be crazy, but in Latin America a President is no
ordinary citizen, it is the most powerful figure of the land and
historically the figure has been above the law. To prevent that officer from
using its power to stay in office Honduras has constitutional rules such as
the mentioned one.
I am extremely proud of my compatriots. Finally, we have decided to stand up
and become a country of laws, not men. From now on, here, no one will be
above the law.
Mitch
Paradise Computers, S.A.
I don’t profess to be an expert at Honduran politics or constitution, but I
have been here a while and stay pretty involved with what’s going on in
Honduras and especially Roatan. For those that don’t know me, I’m an
American investor that has lived in Honduras full time since 2002. I’m very active on several commissions and have met with minister level executives of the Honduran government many times in the past few years.
There have been a lot of comments, descriptions, and hypothesis over the
past few days. I’ve spent a LOT of time reading Spanish and English reports, talking to a lot of people on the islands and on the mainland, and listening to the local politicians. I’d like to present my take on what’s happened.
This is especially for Nick who’s been posting on the Roatan Tourist
discussion group, but hopefully it will help clarify some points for others
as well.
· Mel Zelaya was elected 3 ½ years ago with an underwhelming 49% of
the vote. He was seen as a fairly conservative member of the liberal party.
The general feeling when he was elected was that he wasn’t the greatest
pick, but his background as a wealthy logger and rancher coupled with his
more liberal social policies would probably be OK.
· Almost from day 1, Mel started shifting Honduras policies to the
left.
o Remember when he tried to nationalize the oil industry – forcing all
fuel distributors to buy from 1 company so that Mel could control the price?
The US rightfully reminded Mel that the US oil companies had a lot invested
here and the confiscating of those assets would not be a good thing. Mel
changed his mind a couple of days later.
o Mel gave away the fishing rights to an area that Honduras has been
fishing for decades if not a hundred years. He gave those rights to
Nicaragua for nothing – or at least nothing that was ever publicly reported.
Mel forgot to mention this transaction to anyone in the country, let alone
the fisherman. Guess how the fishermen found out? The Nicaraguan Navy
confiscated several boats over a period of a few weeks. The crews on these
boats were detained from a few days to a few weeks. Some of the boats were
eventually returned to the rightful owners – after paying “fines”. Some of
the boats even had the electronics and gear still on board when they were
returned to the owners. The Honduran government did absolutely nothing to
repatriate these boats.
o Mel wanted Honduras to join ALBA – a collection of countries that was
formed by Cuba and Venezuela to counteract NAFTA/CAFTA from the US. When
this was announced, there was a lot of concern – especially from the
business community. I was in a meeting with the local congressman less than
a week before it was ratified. The message being sent was that this was just
a way to get cheap oil from Venezuela. The congress wouldn’t consider
ratifying this treaty for 6 or 8 months and by then Mel would have the oil
that he was after. Again, less than a week later Mel got the treaty was
ratified by the congress.
o Not too long ago, the minimum wage was raised from L. 3,500 per month to
L. 5,500. That’s about a 60% increase. I’m not saying that the minimum wage
didn’t need to be raised, but this huge increase was 3 times more than the
labor unions were requesting (20%) and 6 times more than the business
organizations had offered (10%). These increases caused tremendous layoffs
on the mainland. Many maquillas (garment factories) began to move to
Nicaragua because the cost of business in Honduras had gotten too high. This
was another huge drop in jobs. I’ve not seen the actual number of jobs lost
because of the 60% increase in minimum wage, but it was staggering.
o The Honduran constitution says that each year the President presents the
annual budget to congress for approval. If the approval is not obtained by a
specific date (I think it’s the end of January, but am not 100% sure) the
budget from last year will be used until the new budget is approved by
congress.
§ Mel never submitted a budget for 2009, hence the Congress can’t approve
it so Honduras is operating in 2009 on 2008’s budget.
§ Now, why would a President not submit a budget? Who knows for sure but
one of the possibilities is that 2009 is an election year. Mel would like to
stay in power past 2009. The budget in 2008 didn’t include an election, so
in essence there is NO money available for the 2009 election because we’re
operating on 2008’s budget. There are other theories about hiding graft and
corruption, but I would assume that anyone that becomes President in
Honduras wouldn’t be concerned about hiding corruption and theft in the
budget – he certainly didn’t mind doing it the previous 3 years!
· Somewhere along the way, Mel decided to take a lesson from his
mentor (Chavez) and arrange it so that he could remain in power for as long
as he wanted. There was a little problem with this. The Honduran
constitution, enacted in 1982, has 378 articles. 6 of these articles are
“cast in stone”, meaning that they can NOT be changed. These 6 articles deal
with defining the type of government, territory claims, and presidential
term limits. They are the basis of the Honduran democracy.
o One other tidbit from the constitution – Article 42, Section 5 says that
anyone who is found to “incite, promote, or aid in the continuation or
re-election of the President” would face loss of citizenship. Remember this
one later on in this saga.
· To further complicate things for Zelaya, ANY changes to the
constitution have to be initiated by the legislative branch. The congress
has to convene a constituent assembly. That’s basically a group of people
selected by the congress to analyze any proposed changes and form those
ideas into the new constitution. After the proposed changes are formulated,
the congress would approve them to be put to a national referendum. The
executive branch (the President) has nothing to do with that process.
· Mel didn’t think that the congress would go along with his ideas
of staying in power so he decided he’d call his own referendum. He doesn’t
have the authority to do that – remember that constitutional changes can
only be done by the legislature AND the term limits are one of the articles
cast in stone – but he goes ahead and calls one anyway.
· The Honduran Supreme Court says “Sorry Mel, you can’t do a
referendum. That’s not within your power as president”.
· Mel, or more probably one of his advisors, figures out that if a
referendum can’t be done, we could probably do a survey or a poll instead!
Great idea – nobody will figure out that the poll that we’re now going to do
is exactly the same thing as we were going to do with the referendum.
· Damn those people on the Supreme Court! They figured out the ruse!
They ruled unanimously that regardless of what you call it, if it acts like
a referendum the president can’t do it. If it looks like a duck, and walks
like a duck, and quacks like a duck . . . .
· Mel continues to talk of doing the poll on June 28 regardless of
the Supreme Court
· The Congress looks at the poll that Mel wants to do and gives an
opinion that the poll would be illegal and they will not support it.
Remember that Mel’s own political party is in control of the congress.
· The Attorney General also analyzes the poll and determines that it
is illegal. Over the course of the weeks leading to June 28, the AG
reiterates many times that the poll is illegal and anyone participating in
the poll would be committing a crime and could be arrested.
· Mel runs into another logistical snafu. He needs some ballots
printed. The entire political structure of Honduras (except him) has ruled
that the poll is illegal. It’s a pretty sure bet that he can’t get the
government to print the ballots for an illegal referendum so he asks his
buddy Hugo Chavez to print the ballots. Of course Hugo says “No Problem
Commrade!”
· The rhetoric in the 2 weeks before the “poll” gets tense. Every
legal opinion in Honduras says that the poll is illegal. The Supreme Court
reaffirms its ruling that the poll is illegal. The Attorney General keeps
saying that the poll is illegal and that anyone participating is committing
a crime. Mel’s own political party says that the poll is illegal. There
literally is not one legitimate group in the country that is siding with Mel
about the poll.
· Traditionally the military handles the distribution of the ballots
and voting materials. The head of the military, Romeo Vasquez Velasquez says
that the military will not participate in the poll because the Supreme Court
is the entity that determines what is legal and what is illegal in Honduras.
The Supreme Court has determined that the poll is illegal, so the military
will not participate.
· Mel Zelaya promptly fired Romeo Vasquez. The other heads of
military (Navy and Air Force) as well as the Minister of Defense resigned in
support of Vasquez.
· The next day the Supreme Court ruled unanimously that Vasquez was
fired without reason and demanded his reinstatement. Zelaya refused.
· The ballots arrive in Honduras (from Venezuela on a Venezuelan
flagged plane). The Attorney General demands that the ballots be confiscated
and held at a military installation.
· Mel decides that if the military won’t distribute the ballots,
he’ll get his own people to distribute them
· Mel gets a couple of busses and a few cars full of supporters.
They drive to the Air Force installation that was holding the ballots. They
forcibly entered the installation and took the ballots. Not only was this
“breaking and entering” it was a complete betrayal of a lawful order of the
Attorney General
· The Attorney General says that the President has committed treason
and asks for him to be removed from office. The congress created a
commission to examine Zelaya’s actions and determine if removal from office
is appropriate.
· A side note here about removal from office. I’m in no way a
Honduran constitutional expert, but from what I understand, there’s not a
clear means to impeach a sitting president. In a lot of constitutions, the
impeachment of a president would be done by the legislative branch. In
Honduras, there’s no such structure. There could be criminal charges brought
against the president and the trial would be handled by the judicial branch.
Not much different than anyone else accused of a crime. I’ve not heard of
any provision to temporarily remove a president from office until the
criminal charges were adjudicated. What would you do? Let a man accused of
treason remain as the sitting president until the trial was completed? That
would be insane, but that may be the only choice.
· On Saturday, June 27, Mel got most, if not all, of the ballots
distributed around the country. The polls were set to open at 7am on Sunday.
· The Supreme Court voted to remove Zelaya. The Congress decided to
remove Zelaya. The Attorney General stated many times that Zelaya was
committing illegal acts and in fact committing treason. The military
determined that the poll was illegal and that their responsibility was to
uphold the constitution as opposed to supporting the president.
· Early Sunday morning, about 6am, the military went to the
president’s house and removed him from the building. He was put on a plane
to Costa Rica. This was done to enforce the ruling from the Supreme Court.
· This is where Article 42 of the constitution comes into play. The
way that I read that article, Zelaya should have lost his Honduran
citizenship at this point.
· Once Mel had been removed, the President of the Congress (Roberto
Micheletti) was sworn in as the new President of Honduras. This was exactly
the person that is indicated by the constitution. It was a proper and legal
succession of the presidency. The first thing that Micheletti did was
confirm that the regularly scheduled elections would be held in November.
His post is temporary until the new President was duly elected.
· It’s been said all over the press that Mel was arrested in his
pajamas. I personally don’t believe that. In an hour he would have been at
some polling place to vote and also to motivate those that showed up. This
was the biggest day of his life. I’d be amazed if he slept at all – I know I
wouldn’t be able to. There was one report that Mel was actually in suit
pants and a crisply ironed white shirt when he was arrested and he asked to
change into other clothes. Quite frankly, I see this as more likely.
I believe that this is an accurate depiction of the events that led to
Zelaya’s expulsion on Sunday. If I’m wrong on a any points, I don’t think
I’m off by much. The salient points are certainly accurate.
I personally think that it would have been better to arrest Zelaya and hold
him somewhere in the country. He was removed from Honduras in the interest
of public safety. The feeling at the time was that if he was held within
Honduras, his supporters would take violent actions to release him from
captivity. It would be a difficult decision and I’m sure the powers that be
did what they thought was best.
I have been disgusted at the world reaction to these events. It’s like they
only looked at what happened on Sunday morning and ignored what events led
to that day. I don’t understand how the removal of Zelaya was anything less
than a small country demanding that their country remain democratic. Their
constitutional process worked exactly right to remove a rogue president with
an agenda that was detrimental to the Honduran constitution and society.
While the actions of June 28 would fit some definitions of a coup, it was
certainly a legal and CONSTITUTIONAL coup. There have been several articles
written that state that it was a MANDATORY coup. That’s a very difficult
concept for most people from the first world to understand, but there are
some coups that are good and even required.
I’ve read so much over the past few days that I can’t remember where I read
this, but the author was talking about the events in Honduras. He concluded
by stating quite simply that if you find yourself aligned with Castro,
Chavez, and Ortega – you should REALLY look at where you’re standing.
I think that the Hondurans should be honored for what occurred. I know that
I’ve never been prouder of a group of people than I’ve been of Hondurans the
past several days. Instead of being isolated from the world and denounced as
being “anti-democratic” they should be lifted on the shoulders of all free
men around the world. I’m sure that there are plenty of people in Cuba,
Venezuela, and North Korea that would LOVE to hear the story of what a small
country can do to ensure democracy lives in their society for their children
to enjoy. That is if the people in those countries ever hear of the great
accomplishments of a small third world country with ideals and principals
larger than the “democratic showcase” of the first world.
Mitch
Paradise Computers, S.A.
Roatan's #1 Technology Provider Since 1997
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