Viviana Krsticevic and Juan Mendez
U.S. policymakers are currently debating the appropriate response to a coup that ousted Honduran President Manuel Zelaya from power June 28. But as they continue discussions on a way forward for the Latin American nation, it is essential they have all the facts straight. Note, then, a recent Law Library of Congress analysis regarding the legality of the removal of Zelaya. The report misunderstands several basic tenets of Honduran law.
The analysis, prepared by Senior Foreign Law Specialist Norma C. Gutierrez at the request of Rep. Aaron Schock, R-Ill., does get two things right: First, a process for presidential impeachment does not exist under Honduran law; second, the armed forces acted illegally when they forcibly expelled President Zelaya to Costa Rica. Unfortunately, the thinly sourced analysis gets many other basic facts wrong.
The report goes most seriously awry when it concludes that the Honduran Congress had the authority to remove the president. This conclusion hinges on the observation that the Honduran Constitution authorizes Congress to "approve or disapprove" of the conduct of the President and that 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."
Dubious legal reasoning aside, it is doubtful that the Honduran Congress has the power to interpret the country's constitution. In fact, one of the provisions the report cites to support the existence of such authority does not exist. The provision in question--Article 218, section 9 of the constitution--was struck down by the Honduran Supreme Court more than six years ago.
Citing the U.S. Supreme Court's seminal Marbury v. Madison decision, the Honduran Supreme Court affirmed the rather basic principle that for true separation of powers to exist, the courts--rather than the legislature--must have ultimate authority to interpret the constitution. This principle is further enshrined in the 2004 Law on Constitutional Justice.
It is at the very least doubtful, therefore, that the Honduran Congress has the power to interpret the country's constitution, much less do so in a way that substitutes "remove" for "disapprove." The analysis completely misses this point.
Moreover, even before the Honduran Supreme Court struck down the power of the country's Congress to interpret the constitution, this authority was never "implicitly exercised" as Gutierrez suggests it was when Zelaya was removed. Rather, Congress adopted formal interpretations of the constitution by issuing decrees that took effect at the moment they were published in the official register; the Honduran Congress' own Web site shows that such formal interpretations have been issued only 10 times since the adoption of the current constitution in 1982.
The decree that removed President Zelaya included no such formal interpretation of the constitution, nor any reference to Congress's purported power to interpret the constitution, suggesting that the legislature itself was well aware of the limits on its own authority.
There is little evidence, therefore, to support Gutierrez's conclusion that Congress engaged in an implicit interpretation of the Honduran Constitution when it deposed Zelaya, much less that such an interpretation was constitutionally permissible. On the contrary, there is every reason to conclude Congress unconstitutionally exceeded its authority by granting itself an impeachment power that does not exist under Honduran law.
The Law Library of Congress report also fails to mention a series of due process violations that took place in the criminal proceedings against President Zelaya. According to the report, "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." However, the report fails to identify several questionable aspects of these proceedings.
For example, Zelaya was not read his rights, informed of the charges against him or provided access to his lawyers while being detained and forcibly expelled from the country. In addition, the Supreme Court based its decision to order Zelaya's detention on the assumption that he posed a flight risk, a rather dubious contention as regards to a sitting president.
Finally, the Supreme Court ordered the armed forces to capture Zelaya and search the presidential residence, despite the fact that article 293 of the Honduran Constitution explicitly establishes that the national police execute legal decisions and resolutions.
Strong opinions exist on the recent events in Honduras. The Obama administration and the international community have determined that President Zelaya's removal constituted a coup d'etat, while some in Congress have questioned this conclusion. But everyone should agree on the need for policymakers to have access to reliable information.
Honduras' de facto government has employed creative legal arguments to justify not only the June 28 coup but the severe repression of civil liberties that followed. By embracing these weak rationalizations, the Law Library of Congress has rendered itself complicit in the illegal acts of an authoritarian and undemocratic regime.
Viviana Krsticevic is an Argentine attorney trained at the University of Buenos Aires and Harvard Law School. She is executive director of the Center for Justice and International Law in Washington.
Juan Mendez is former special adviser to the U.N. secretary general on the prevention of genocide, former president of the Inter-American Commission on Human Rights, and a founding member of Center for Justice and International Law. He is currently a visiting professor at American University's Washington College of Law.
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