Terceiro mandato

"Segue o e-mail que acabei de receber de uma advogada de Honduras comentando a situação do ponto de vista jurídico.

Dear All

Please find below for your information a mail that I received today concerning the situation in Honduras and want to share with you (as it was to large for a message and I do want to bring your attention on this, creating an event was the most practicable solution). As objective observers on the sideline we would like for all opinions and persectives to be available to the international community. And perhaps it is also interesting to compare this situation with the current situation in Iran and how the international community and the media are reacting on that. Is the international community biased? Is the media biased? And are we giving too much credit to what the media chooses to broadcast? How critical are we really? If you have any opinions on these matters please feel free to share this with us on the wall below.

In solidarity

Sueena

________

Dear friends,

It seems that the events in Honduras have taken a rather bloody path and we feel powerless and frustrated that the media express various opinions without (seemingly) having asked for the opinion of one single lawyer. In what follows we explain briefly the background of the ongoing crisis placing it in the Honduran legal context. This will hopefully eliminate all the 'static' and will enable you to have an accurate view of the situation, i.e. that there was no 'military-led coup' in Honduras, that the military always acted under civilian control and that the Honduran Constitution has been strictly respected.

Article 239 of the Honduran Constitution provides that a person who has served as President once cannot run the second time for office, and moreover, if one breaks this rule or suggests a reform of this provision, then he/she must immediately cease holding public office, and will be prohibited from holding public office for the next 10 years. The same sanction applies to those who aid and abet such a person.This article is further reinforced by article 374, which says that any reform of the Constitution cannot change the articles dealing, among others, with the duration of the presidential mandate and with the prohibition of a president from running a second time.

Starting from February 2009, Manuel Zelaya, President of Honduras at the time, repeatedly talked of a reform of the Constitution. Initially he publicly admitted that the purpose of the change was to allow the President to run for a second mandate. However, being warned of the consequences this would entail under article 239 of the Constitution, he asserted, in subsequent interventions, that he only wanted to suggest certain changes to the Constitution, without specifying them. Zelaya suggested organizing a referendum which was supposed to ask the Hondurans whether they would like a change in the Constitution. However, according to Article 373, the decision to change the Constitution can only be taken by the Congress (i.e. Parliament) with a qualified majority of two thirds of the votes, and the Congress is also the only one able to decide if a public consultation process is to be launched.

Article 5 of the Constitution provides that referenda or plebiscites can be organized in order to consult the people on issues of major national interest. The request to organize a referendum can be made by minimum 10 congressmen, by the President, through a resolution of the Council of Ministers, or by minimum 6% of the voters, but it must be analyzed by the Congress and approved with a majority of two thirds of the total number of congressmen. If the referendum is approved, the Congress must subsequently pass a decree determining the terms of the consultation and ordering the Electoral Tribunal to handle the logistics.

Despite of the provisions of article 5 mentioned above, on March 23, 2009, the President issued an Executive Decree, through which he called upon a public consultation with the ultimate goal of summoning a National Constituent Assembly to adopt a new Constitution. This Executive Decree was never published, as required by law, in order to prevent it from being challenged in court. However, the Attorney General, (who is from the same political party as the ex-president) challenged the unpublished decree. The competent judicial tribunal admitted the Attorney General’s action, and decided, on May 27, 2009, to suspend the application of the decree, may it be published or not.

Two days later, on May 29, 2009, following the request of the Attorney General, the tribunal clarified its decision and stated that its ruling also applied to any other current or future administrative acts, having the same object and purpose as the suspended decree, including any change of name of the consultative process. However, the President of Honduras issued a second Executive Decree, which annulled the first (concerning a 'public consultation') and which ordered a so-called 'national poll' that would take place on Sunday, June 28 of 2009. This national poll involved asking the following question: 'Are you in favor of the addition of a fourth voting box in the general elections of 2009, in which the people will decide on the summoning of a National Constituent Assembly?'

Dated May 26, 2009, this second decree was not published until June 25, 2009. In the interval between May 29 and June 25, the President challenged unsuccessfully the decision of the tribunal to suspend any presidential decree which would concern the organization of a public consultation.In the same interval, the Supreme Electoral Tribunal and the Attorney General began legal actions to confiscate the poll’s materials and named the Air Force Chief as depositary of the confiscated items.The President and a group of his followers rejected the May 27 court decision and assaulted the Air Force facilities in Tegucigalpa, where the confiscated materials were being kept.

In the end, the second Executive Decree was published on June 25 and the President asked the military (more specifically the head of the Joint Chiefs of Staff) to assist with the preparations of the referendum, which was supposed to take place only three days from publication, on June 28, 2009.

The head of the Joint Chiefs of Staff refused to carry out the order, arguing that the President’s disposition conflicted with a court decision. As a result, the President sacked him, without following the procedure for sacking high military officials provided by the Constitutive Law of the Army. The civilian minister of Defense, the direct superior of the head of the Joint Chiefs of Staff, resigned in sign of protest.

On the same day the President’s decision to sack the military official was challenged before the Supreme Court according to a so-called 'recurso de amparo' (a procedure destined to protect an individual’s constitutional rights). As a result, the Constitutional Section of the Supreme Court suspended (in unanimity) the President’s act and ordered that the head of the Joint Chiefs of Staff be reinstated in his function. Still on the same day, the Attorney General decided to prosecute the President on three counts (acting against the country’s form of government, treason, and abuse of authority).

The next day the Supreme Court admitted the Attorney General’s request (unanimously) and issued an arrest warrant. According to the Attorney General, the President, among others, usurped the powers of the Congress, the only one able to approve a public consultation process. No impeachment procedure was necessary, as article 2 of the Honduran Constitution provides that the usurpation of constitutional powers is an act of treason, and the responsibility in this case is engaged ex-officio.

According to article 273 of the Honduran Constitution, one of the missions of the Army is to defend the Constitution, so the arrest warrant was sent by the Supreme Court to the head of the Joint Chiefs of Staff and it was carried out by the Army.

The events in Honduras were not a result of a conflict between the President and the Judicial Power exclusively. On June 23, 2009, (two days before the second decree was published) the Congress passed a law forbidding holding referenda and plebiscites less than 180 days before the next general elections (the next elections are set for 29 November 2009). A multi-party commission named by the Congress to investigate the President concluded that Zelaya had violated Honduran law. That commission asked the Congress to declare him unfit to govern. Zelaya was deposed by the Congress unanimously, which chose its interim successor following the constitutional process established in article 242, regarding the succession of the President in case of a definite absence.

The international community almost unanimously condemned the actions of the Supreme Court and of the Honduran Congress calling the entire series of events a 'military-led coup', without actually explaining what parts of the Honduran Constitution have been infringed. International organizations such as the Organization of the American States and the United Nations refused to recognize the current government and asked for Manuel Zelaya to be restored to his previous position. This makes little sense, since this would involve replacing those who allegedly breached the Constitution by ousting Zelaya with yet another Constitution infringer. This also seems to imply that only the executive power represents democracy in Latin America or that at least this power is 'more equal' than the others. The fact that a president was elected democratically does not mean that he continues to represent the people who voted for him no matter what he/she does. All elected officials must still act in accordance with the law.The opinion of the 'international community', as surprising as it is, only reflects the opinions of head of states and governments, i.e. holders of the executive power, and displays a striking ignorance of the Honduran legal system.

It would be extremely interesting what the Supreme Courts and Parliaments around the world think. Last week thousands of people participated to peaceful demonstrations in different cities in Honduras in support of the Constitution and the interim government. These were not covered by news networks and were only sporadically labeled in the international press as 'noisy rallies'. Not having any violent component, they did not qualify as 'breaking news'. As soon as blood started to be spilled because of the protests of a minority (according to Reuters Zelaya’s approval rating before being ousted was below 30%), the media were all over it. We are sorry we cannot convince the world’s leaders not to make Honduras a 'breaking news' topic, but we hope that you will forward this to your friends, who in this way will be able to watch the news with a critical eye.

Leticia Lizardo and Stefan Acsinte'"