Honduras: Coup d’Etat in Constitutional Clothing?
By Doug Cassel
Introduction
Legal confusion has clouded the recent de facto change of government in Honduras. Some of this arises from the passionate political debate over President Manuel Zelaya and his de facto removal. Without entering that debate, this analysis addresses only questions of international law and related questions of law.
In the early morning hours of Sunday, June 28, 2009, acting on a judicial warrant to arrest President Zelaya for alleged crimes, the nation’s military stormed the presidential palace, and arrested the chief executive in his pajamas. Then, exceeding its warrant, and in violation of an express provision of the Honduran Constitution,<1> the military put the pajama-clad president on a plane to Costa Rica.<2> With Zelaya involuntarily exiled, the Honduran Congress met that afternoon, listened to a reading of a supposed letter of resignation from him, and promptly accepted it.<3> The Congress then issued a decree purporting to depose Zelaya on other grounds, and to replace him by the president of the Congress, Rigoberto Micheletti.<4>
President Zelaya’s removal and replacement were swiftly denounced as a coup d’état by governments throughout the region,<5> including by U.S. President Obama,<6> and by the United Nations General Assembly,<7> the Inter-American Commission on Human Rights,<8> and the General Assembly of the Organization of American States (OAS).<9> Invoking the Inter-American Democratic Charter,<10> the OAS General Assembly termed the coup an “unconstitutional alteration of the democratic order,”<11> thus triggering the suspension of Honduras from participation in the OAS.<12>
Although the United States joined in the 33-0 OAS vote,<13> the Obama Administration stopped short of deeming Zelaya’s ouster a “military coup,” which would trigger a statutorily mandated suspension of U.S. inter-governmental foreign assistance to Honduras.<14> Nonetheless, the Administration suspended military and inter-governmental development aid as a matter of policy.<15> At least one witness at a congressional hearing went further, calling Zelaya’s removal a “military coup” requiring an aid suspension.<16>
Unconstitutional Alteration of the Democratic Order
On September 11, 2001, the OAS General Assembly unanimously adopted the Inter-American Democratic Charter.<33> Although the Democratic Charter is not a treaty, it may be viewed as an authoritative interpretation of the OAS Charter<34> by the parties to that treaty, and thus to have binding legal effect.<35>
Article 9 of the OAS Charter authorizes the General Assembly to suspend a member state from participation in the OAS when its “democratically constituted government has been overthrown by force.” If that were the only applicable norm, the Honduras case would be debatable: although President Zelaya was forcibly taken out of the country, and forcibly prevented from returning,<36> his formal removal from office and replacement were accomplished peacefully in Congress.
The Democratic Charter, however, goes further. Article 20 authorizes a special session of the OAS General Assembly whenever there is an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.” If initial diplomatic efforts fail, Article 21 authorizes the General Assembly to suspend a member state from participating in the OAS if there has been an “unconstitutional interruption of the democratic order.”
This poses a challenge for international lawyers. Ordinarily international law imposes its own, autonomous norms for the permissible conduct of a government. Questions of domestic law – including constitutionality – are left to domestic authorities, both as a matter of their sovereign entitlements, and because they are presumed better able to interpret their own constitution.
The Democratic Charter is an exception. In order to create a collective regional safeguard for democracy in each country, it sets international standards which demand (among other things) that each nation comply with its own constitution. To the extent that democracy depends on constitutionalism, this incorporation of domestic law into international law is unavoidable.
But this requires international lawyers – and other OAS member states – to consider whether domestic authorities have breached their own constitution, in order to evaluate whether they meet their international commitments. This task should be undertaken with humility and respect for domestic expertise. But it cannot be avoided, lest de facto regimes be given carte blanche to fabricate their constitutionality. On close questions of constitutional law, deference should be paid to domestic authorities. But where the breach is clear and its effect undemocratic, the international whistle must be blown.<37>
In the Honduran case, several elements combine to make out a clear case of unconstitutionality. First was the forced expatriation of President Zelaya, an action whose constitutionality – in the face of an express constitutional prohibition of expatriation<38> – has few if any defenders.<39>
Second was the immediate congressional acceptance of his purported letter of “resignation” – when it was known that he had been forcibly exiled to Costa Rica that very morning. President Zelaya promptly denied writing the letter, and the U.S. State Department publicly doubted its authenticity.<40> Perhaps reflecting doubts, the congressional decree deposing Zelaya makes no mention of his “resignation.” Nor do the subsequent official communiqués. The “resignation” now appears to have been nothing more than an embarrassing ploy.
Third is the evident lack of congressional power to depose Zelaya in the circumstances. With one exception, none of the constitutional articles cited by the congressional decree purport to grant Congress power to remove or replace a president.
The first four articles cited by Congress – Articles 1-4 – do not even mention Congress, let alone grant it any powers. Article 1 provides that Honduras is a democratic state under the rule of law.<41> Article 2 states that usurpation of powers is treason,<42> while Article 4 provides that alternation in the presidency is obligatory and that violation of that norm constitutes treason.<43>
But a determination of whether or not Zelaya committed treason is a matter for the Honduran Supreme Court, not Congress. Unlike common law constitutions, the Honduran Constitution does not provide for impeachment and trial of a president by the legislature.<44> Instead, the Honduran Constitution mandates that the case be adjudicated by the Supreme Court, not by Congress.<45>
Article 3 of the Constitution provides that no one need obey a government which engages in usurpation or uses unconstitutional means; its actions are null, and the people have a right to engage in insurrection.<46> But insurrection is a right of the people, not a power of Congress. And the people of Honduras – as shown by the large crowds who came to the airport in the capital in order to try to welcome President Zelaya home<47> – are clearly divided in their sympathies.
Article 205, paragraph 20, gives Congress power to “approve or disapprove” administrative conduct,<48> while Article 218 bars the president from vetoing certain legislation, including bills that refer to the conduct of the executive.<49> Neither article says anything about removal. Articles 321-23 are general provisions providing that no official is above the law, and that they take an oath to obey the law.<50> None purports to empower Congress to do anything, much less to remove and replace a president.
The only article invoked by the decree that grants Congress a relevant power is Article 242.<51> It empowers Congress to replace an absent president whose absence or incapacity is permanent or indefinite.<52> But Congress well knew that Zelaya’s absence was involuntary, and that he wanted to return immediately. To force a president out of the country in violation of the Constitution, to deny him reentry, and then to replace him on the ground that he is “absent,” illustrates the sort of constitutional chicanery the Inter-American Democratic Charter is designed to condemn.<53>
Defenders of the de facto government later invoked a different provision to justify the removal of President Zelaya.<54> Article 239 provides that anyone who proposes to reform the constitutional ban on re-election of a president, and those who help him, “will cease immediately in the exercise of their respective positions.”<55> But to treat this provision as “self-executing” is problematic. For example, if President Zelaya violated Article 239, when did he cease to be president? Months ago, when he openly began to advocate a constitutional reform to allow his re-election?<56> And who is to say? Do the courts decide? Does the Congress? What if they disagree? What if the president disputes their accusation? What is the evidentiary standard? How and when does Honduras know that it no longer has a lawfully elected president? Plainly Article 239 is unworkable without some procedure to implement it. And in any case, Article 239 was not the basis on which Congress purported to depose Zelaya.
A fourth flaw in the removal of the president was the absence of due process of law. Under the American Convention on Human Rights,<57> to which Honduras is a party,<58> and which under the Honduran Constitution prevails over domestic law,<59> high officials are entitled to due process of law before being removed from office.<60> Not only does President Zelaya enjoy this right as a matter of fairness to him, but the voters who elected him also have a right not to be deprived of the fruits of their electoral victory, without some reasonable process for removal.
The Honduran Congress chose not to await the outcome of the only constitutional remedy – a criminal trial before the Supreme Court.<61> Instead, it summarily removed the president without so much as a hearing. If interpreted as self-executing, Article 239 would do the same. Either avenue of summary removal is inconsistent with Honduras’ treaty obligations, violative of due process of law, and anti-democratic.
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