Honduras' non-coup
Under the country's Constitution, the ouster of President Manuel Zelaya was legal.
By Miguel A. Estrada
July 10, 2009
Honduras, the tiny Central American nation, had a change of leaders on June 28. The country's military arrested President Manuel Zelaya -- in his pajamas, he says -- and put him on a plane bound for Costa Rica. A new president, Roberto Micheletti, was appointed. Led by Cuba and Venezuela (Sudan and North Korea were not immediately available), the international community swiftly condemned this "coup."
Something clearly has gone awry with the rule of law in Honduras -- but it is not necessarily what you think. Begin with Zelaya's arrest. The Supreme Court of Honduras, as it turns out, had ordered the military to arrest Zelaya two days earlier. A second order (issued on the same day) authorized the military to enter Zelaya's home to execute the arrest. These orders were issued at the urgent request of the country's attorney general. All the relevant legal documents can be accessed (in Spanish) on the Supreme Court's website. They make for interesting reading.
What you'll learn is that the Honduran Constitution may be amended in any way except three. No amendment can ever change (1) the country's borders, (2) the rules that limit a president to a single four-year term and (3) the requirement that presidential administrations must "succeed one another" in a "republican form of government."
In addition, Article 239 specifically states that any president who so much as proposes the permissibility of reelection "shall cease forthwith" in his duties, and Article 4 provides that any "infraction" of the succession rules constitutes treason. The rules are so tight because these are terribly serious issues for Honduras, which lived under decades of military rule.
As detailed in the attorney general's complaint, Zelaya is the type of leader who could cause a country to wish for a Richard Nixon. Earlier this year, with only a few months left in his term, he ordered a referendum on whether a new constitutional convention should convene to write a wholly new constitution. Because the only conceivable motive for such a convention would be to amend the un-amendable parts of the existing constitution, it was easy to conclude -- as virtually everyone in Honduras did -- that this was nothing but a backdoor effort to change the rules governing presidential succession. Not unlike what Zelaya's close ally, Hugo Chavez, had done in Venezuela.
It is also worth noting that only referendums approved by a two-thirds vote of the Honduran Congress may be put to the voters. Far from approving Zelaya's proposal, Congress voted that it was illegal.
The attorney general filed suit and secured a court order halting the referendum. Zelaya then announced that the voting would go forward just the same, but it would be called an "opinion survey." The courts again ruled this illegal. Undeterred, Zelaya directed the head of the armed forces, Gen. Romeo Vasquez, to proceed with the "survey" -- and "fired" him when he declined. The Supreme Court ruled the firing illegal and ordered Vasquez reinstated.
Zelaya had the ballots printed in Venezuela, but these were impounded by customs when they were brought back to Honduras. On June 25 -- three days before he was ousted -- Zelaya personally gathered a group of "supporters" and led it to seize the ballots, restating his intent to conduct the "survey" on June 28. That was the breaking point for the attorney general, who immediately sought a warrant from the Supreme Court for Zelaya's arrest on charges of treason, abuse of authority and other crimes. In response, the court ordered Zelaya's arrest by the country's army, which under Article 272 must enforce compliance with the Constitution, particularly with respect to presidential succession. The military executed the court's order on the morning of the proposed survey.
It would seem from this that Zelaya's arrest by the military was legal, and rather well justified to boot. But, unfortunately, the tale did not end there. Rather than taking Zelaya to jail and then to court to face charges, the military shipped him off to Costa Rica. No one has yet explained persuasively why summarily sending Zelaya into exile in this manner was legal, and it most likely wasn't.
This illegality may entitle Zelaya to return to Honduras. But does it require that he be returned to power?
Yet, this is what Obama, Chavez, and Castro are calling for.
No. As noted, Article 239 states clearly that one who behaves as Zelaya did in attempting to change presidential succession ceases immediately to be president. If there were any doubt on that score, the Congress removed it by convening immediately after Zelaya's arrest, condemning his illegal conduct and overwhelmingly voting (122 to 6) to remove him from office. The Congress is led by Zelaya's own Liberal Party (although it is true that Zelaya and his party have grown apart as he has moved left). Because Zelaya's vice president had earlier quit to run in the November elections, the next person in the line of succession was Micheletti, the Liberal leader of Congress. He was named to complete the remaining months of Zelaya's term.
It cannot be right to call this a "coup." Micheletti was lawfully made president by the country's elected Congress. The president is a civilian. The Honduran Congress and courts continue to function as before. The armed forces are under civilian control. The elections scheduled for November are still scheduled for November. Indeed, after reviewing the Constitution and consulting with the Supreme Court, the Congress and the electoral tribunal, respected Cardinal Oscar Andres Rodriguez Maradiaga recently stated that the only possible conclusion is that Zelaya had lawfully been ousted under Article 239 before he was arrested, and that democracy in Honduras continues fully to operate in accordance with law. All Honduran bishops joined Rodriguez in this pronouncement.
True, Zelaya should not have been arbitrarily exiled from his homeland. That, however, does not mean he must be reinstalled as president of Honduras. It merely makes him an indicted private citizen with a meritorious immigration beef against his country.
Miguel A. Estrada is a partner at the Washington office of Gibson, Dunn & Crutcher. A native of Honduras, he was a member of the official U.S. delegation to President Zelaya's 2006 inauguration.
