By Diana Cariboni
HAVANA TIMES, July 11 (IPS) – The events unleashed two weeks ago in Honduras have raised questions about the options available in a democratic system to penalize infringements of the constitution without, in turn, trampling the constitution.
Was it or was it not a coup d’etat? On Sunday, June 28 hundreds of soldiers surrounded the presidential residence, stormed in, ordered President Manuel Zelaya out of bed at gunpoint and herded him onto an air force plane that flew him to Costa Rica, still in his pajamas.
The question is obviously rhetorical. Nevertheless, it has been asked dozens of times over the last two weeks in op-ed columns, blogs, articles and analyses posted on-line by local and foreign media outlets.
And more than a few have said no, it was not.
The Honduran constitution drafted in 1982 does not provide for impeachment of the president. That possibility was eliminated in a 2002 constitutional reform, along with the guarantee of immunity from prosecution.
The constitution also has a series of articles set in stone, such as the ones on “reform and inviolability of the constitution,” and others referring to questions like the form of government, national territory and a total ban on presidential reelection.
The constitution has its own built-in armor to protect it. Article 375 states that the document does not lose its validity even when it has been supposedly revoked or modified by any means or procedure other than those provided for by the constitution itself. In such cases, any citizen, with or without political authority, has the duty to help maintain or restore respect for the constitution, the article adds.
That doesn’t mean the constitution cannot be amended. In fact it has been modified dozens of times since 1982. To do so, all that is needed is the vote of two-thirds of all members of parliament at two consecutive regular annual sessions.
The armor consists of blocking all routes to the creation of a constituent assembly to completely rewrite the constitution and thus “refound” the state.
The current constitution was drafted in 1981 by a constituent assembly that met under military tutelage – characteristic of political life in this country for a good part of the 20th century – and amidst a broader Central American context of guerrilla warfare, dictatorships and U.S. interference.
Nevertheless, since then the country began to build institutions that it previously lacked, in the areas of electoral, judicial and human rights issues, access to public information, and transparency in state finances and procurements.
Neither Prosperity nor Development
But nearly three decades of fragile democracy have brought neither prosperity nor development to this country of 7.5 million people, where eight out of 10 people live on less than a dollar a day according to United Nations statistics.
Indeed, Honduras is the third poorest country in Latin America, after Haiti and Nicaragua.
In the last few years, trade unions, social movements and associations of small farmers as well as small left-wing parties and movements have begun to take a keen interest in the experiences of countries with leftist or centre-left governments, like Venezuela, Ecuador and Bolivia, where constituent assemblies were elected to rewrite the constitutions, which were later approved by voters.
Zelaya, a wealthy landowner and relative outsider within the centre-right Liberal Party, was elected on a reform agenda in 2005. Once in office, he gradually distanced himself from his party and the country’s elites, and ended up pushing for the creation of a constituent assembly which by any reckoning ran counter to the constitution.
The opposition, the courts and Congress maintained that his aim was to secure the possibility of running for reelection in order to prolong his stay in office, following in the footsteps of Hugo Chávez in Venezuela, Rafael Correa in Ecuador, Evo Morales in Bolivia, and Álvaro Uribe in Colombia.
However, Zelaya himself never said that was his objective, and any possible modification allowing for reelection would have come after the end of his term in January, so he could not have aspired to a second consecutive term.
The Supreme Electoral Court is the only institution that can call elections, in agreement with Congress, the constitution states.
When the justice system and election authorities ruled that Zelaya could not ask voters whether or not they wanted to elect a constituent assembly, he said he would hold a “non-binding survey” and that the National Institute of Statistics would be in charge of the poll.
Zelaya’s Straw Poll that Ruffled Feathers
“Do you think the November 2009 general elections should include a fourth ballot box in order to make a decision about the creation of a National Constituent Assembly that would approve a new constitution? Yes or No” the ballot read.
To do this, he invoked article 5 of the Honduran “Civil Participation Act” of 2006. Under this law, all public employees have the right to call non-binding public consultations to inquire what the population thinks about policy measures.
If the “yes” vote had won in the informal poll, which was to be held June 28, a fourth ballot box (alongside the three for electing the president, lawmakers and local governments) would have been set up in the November elections for voters to elect delegates to a constituent assembly.
But the president found himself increasingly isolated in the endeavor. In the week leading up to the coup, the military refused to distribute the ballot boxes and provide security for the poll, in the first act of defiance towards their commander-in-chief. Zelaya then sacked the head of the armed forces, the Supreme Court ordered that he be reinstated, and the president refused to do so.
The legislature then reached a decision that appeared to address the crisis through democratic channels: in the early hours of June 26 it created a special commission to investigate the conduct of the president, who was accused of “failing to pay due attention to questions of national interest and of failing to comply with judicial rulings to the detriment of the rule of law.”
This process was based on article 42 of the constitution, which allows Hondurans to be stripped of their citizenship if they undermine the freedom to vote, falsify or forge electoral documents, or use fraudulent means to manipulate the people’s will, and also forbids inciting, encouraging or supporting the reelection of a president.
The lawmakers also invoked article 205, which says the legislature has the authority to decide whether charges can be brought against the president, to approve or disapprove of the administrative conduct of the executive branch, and to name a special commission to investigate matters of national interest.
The commission asked for time to carry out its investigation. In the meantime, the Attorney General’s Office and the Supreme Electoral Court warned that if the president went ahead with the Sunday, June 28 poll, he would be violating the constitution on the abovementioned grounds, which would be sufficient reason for his removal.
In any case, it was necessary to wait until Sunday. Word on the street was that the ‘yes’ vote would win. But no one knows if that would have happened: the troops got up early and ousted Zelaya.
Shortly afterwards, with the president kicked out of the country, the judiciary hurried to report that the action had been ordered by the courts, and Congress held a session in which a supposed letter of resignation by Zelaya was read out, after which the legislators voted to remove him.
But what happened between Friday and Sunday to prompt that outcome?
Police and judicial sources who backed the coup, and who spoke to IPS correspondent in Honduras Thelma Mejía, said things shifted on Saturday, when a presidential decree was circulated announcing that the survey would be held on Sunday. The decree was dated May 26, but had been quietly published in the Official Gazette between Thursday June 25 and Friday June 26.
That decree “changed the rules of the game,” according to the sources, because it “opened the door to the dissolution of the rest of the branches of government” by no longer calling for “the inclusion of a fourth ballot box” but for “A Public Opinion Survey to Convene a National Constituent Assembly.”
They argued that on Sunday afternoon, a triumphant Zelaya planned to dissolve the rest of the branches of government and to install a constituent assembly made up of representatives who were even alleged to have been secretly appointed.
It would seem implausible that the president had the maneuvering room to take such a major step, with the courts, the Supreme Court, Congress and the electoral authorities lined up against him. And above all, the military had rebelled against his orders.
Perhaps a portion of the citizenry would have backed him – the same groups and individuals who have come out to protest on the streets since he was deposed and sent into exile. But it is mere speculation to say whether that support could have shifted things in his favor.
A night-time curfew, a government-imposed media blackout and a brutal crackdown on protesters have belied claims of the democratic nature of the regime appointed by the legislature on Jun. 28, led by then head of Congress Roberto Micheletti, which has earned Honduras the most complete international isolation in its history.
The de facto government alleges that this was the only way to curb what they term Zelaya’s “authoritarian” tendencies.
Perhaps after all Honduras really does need a new constitution.
To read about the debate on this subject at the US House of Representatives on Friday see: Congress Ambiguous on Honduras Coup