Under the Honduran Constitution, what really happened here?
By Octavio Sanchez*
If you are not familiar with the country’s history and the Honduran constitution it is almost impossible that you would understand what happened here this past weekend. In 1982 my country adopted a new Constitution to allow our ordered return to democracy. After 19 previous constitution -two Spanish ones, three as part of the Republic of Central America and 14 as an independent nation- this one, at 28, has been the longest lasting one. It has lasted for so long because it responds and adapts to our changing reality, as seen in the fact that out of its original 379 articles, 7 of them have been completely or partially repealed, 18 have been interpreted and 121 have been reformed.
It also includes 7 articles that cannot be repealed or amended because they address issues that are critical for us. Those unchangeable articles deal with the form of government, the extent of our borders, the number of years of the presidential term; two prohibitions -one to reelect presidents and another one to change the article that states who can’t run for president- and one article that penalizes the abrogation of the Constitution.
In these 28 years Honduras has found legal ways to deal with its own problems. Each and every successful country around the world lived similar trial and error processes until they were able to find legal vehicles that adapt to their reality. France had 13 Constitutions between 1789 and the adoption of the current one in 1958 which has passed 22 constitutional revisions. The USA had one before this one which has been amended 27 times since 1789 and the British –pragmatic as they are- in 900 years have change it so many times that they have never taken the time to compile their Constitution into a single body of law.
Having explained that, under our Constitution, what happened in Honduras this last Sunday? Soldiers arrested and took out of the country a Honduran citizen that, the day before, through his actions had stripped himself of the presidency of Honduras.
These are the hard facts. Last Friday Mister Zelaya, with his cabinet, issued a decree ordering all government employees to take part in the “Public Opinion Poll to convene a National Constitutional Assembly” (Presidential Decree PCM-020). The decree was published on Saturday on the official newspaper. With this event, Mister Zelaya triggered a constitutional protection that automatically removed him from office.
The key legal elements for that constitutional protection to be triggered are the following ones. Constitutional assemblies are convened to write new constitutions. In Honduras, you have 365 articles that can be changed by Congress. When Zelaya published that decree to regulate an “opinion poll” about the possibility of convening a national assembly he acted against the unchangeable articles of the constitution that deal with the prohibition of reelecting a president and of extending his term. His actions showed intent.
How is that kind of intent sanctioned in our Constitution? With the immediate removal of those involved in the action as stated in article 239 of the Constitution which reads: “No citizen that has already served as head of the Executive Branch can be President or Vice-President. Whoever violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.” Notice that the rule speaks about intent and that it also says immediately –as in instant, as in no trial required, as in no impeachment needed.
This immediate sanction might sound draconian, but every country knows its own enemies and it is the black letter of our supreme law. Requiring no previous trial might be crazy, but in Latin America a President is no ordinary citizen, it is the most powerful figure of the land and historically the figure has been above the law. To prevent that officer from using its power to stay in office Honduras has constitutional rules such as the mentioned one.
I am extremely proud of my compatriots. Finally, we have decided to stand up and become a country of laws, not men. From now on, here, no one will be above the law.
——-
*
Lawyer (J.D. Universidad Nacional Autonóma de Honduras; LL.M. Harvard Law School). Former Presidential Advisor (2002-2005) and Minister of Culture (2005-2006) of the Republic of Honduras.
49 Responses to "What Happened According to the Constitution"
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RUN A RED LIGTH,SEE WHAT HAPPENS,THE LAW WILL GET YOU,OR THE OTHER SIDE WILL HIT YOU REAL GOOD,OR YOU GET LUCK Y.
VIVA EL PRESIDENTE MICHELETTI
Octavio, Thank you for the analysis of the situation in Honduras. I have been posting the link to this article as I post comments at various websites. The other day I was asked to make some comment at an NPR radio station in Chicago and the person I would’ve rather had make them would’ve been you. I mentioned that I would try to locate you and they would be dlighted to have you on. If you wouldn’t mind making yourself available please get in youch with me at marmen at usa dot com.
Eric wrote at Jul 2, 2009 at 3:42 pm:
“You are correct in stating that the constitution specifically prohibits amendments that would allow for a second presidential term. However, you fail to point out that there is an article in the Constitution which spells out that the people CAN vote to write a new constitution.”
Writing a new constitution would change the unchangeable parts of the constitution. That would be unconstitutional.
The constitutional processes for amending the constitution do not include the people or anybody throwing out the constitution and writing a new one.
If anyone were so slow that they couldn’t figure that out on their own, it is one of the main points of Octavio Sanchez’s article.
Don,t let the liar’s take over our heads, becouse those who say they want to fead the poor people, they will robe the rest of the country , lets work together to make poor people fill they not along, it will be a good medicine to kill the communism, dictatorship they only use e’m as bait to robe the other that been worklng all they life, and you know who they are? Castro, Chaves Frias, Ortega, and much more that will come, hungry of money, lets stop e’m now… don’t get alog with liar’s ! why the wold belive on liar’s?
The rule of thumb here is; whenever you find yourself on the side of Hugo Chavez, Danial Ortega, and the Castro twins, you aught to re-examine your assumptions.
Charles Krauthammer – June 30, 2009
Thank you for this explanation . It is real shame that the we do not get the truth though international media and even some honduras here in the U.S. are lost. They do not know what is going on. I really think that choosing Michelleti as a transitional president was a good idea.
And what some people do not understand is that to be a democratic country all the branches of the goverment need to be in agreement not only one branch and someone said that DEMOCRACY means Power to the people (or the people have the power to elect). That is the reason why we have the congress they represent the people. They were elected by the people to represent the people. And yes Zelaya was elected president but to work in conjunction with the other branches.
Felicidades Michelleti y su gabinete!
Adelante Honduras!
Hello,
I applaud you for following your Constitution. You moved appropriately to move a potential dictator away from your country.
Liberals move incrementally to achieve their agendas which is to enslave you. At first all seems reasonable and calm; then they takeover your life.
I apologize for the reactions of the USA (BHO) and the OAS for they seem to be supporting communism/dictatorships and not the people of Honduras who have decided upon a republic with a workable Constitution. God Bless You!…and I cheer you on in your ongoing fight for Freedom.
I would like to mention also, that my grandfather
Who is heaven now. His brain was blowned in
From of his grandchildren, my father was
Apprehend and put in jail for 1 year. while my
Mother was raped, and her children begged the
Neighboors for food. That is the reason I really
Hated communism regimen. Chavez, Ortega Trodden to kill who ever opposed to their
Regimen. I am a surviver of a communism
Holocaust.
I believe in democracy my country is a communist
Country when I came to U.S. the communism took
Everything our land, and our vehicles, also
Our money. People who haven’t experience
Been beat, and rape by communist they should
Keep their opinions to themself. Honduras
Citizens fear because they don’t want a
Communist president to me. Mr zelaya is a
Communist, and also Chavez. Great job Mr
Mitchelleti. Don’t let your country be raped by
Communist. I’am from Nicaragua but now I’am
A U.S. citizen because united states gave me the
Opportunity to be free. and al so hold a master
Degree. Citizens of Honduras fight against
Communism, because is the root of the evil
Poison to all the countrys
ps. L.L.
Regardless of what anyone tells you, it is a republic.
ticu,
You are right about democracy, but perhaps you are not aware of the type of government Honduras currently has, its a Republic. Please note that there is a difference, and do not by all means do not get them confused.
In a Democracy, the Majority has unlimited power over the Minority. This system of government does not provide a legal safeguard of the rights of the Individual and the Minority. It has been referred to as “Majority over Man”.
In a Republic, the Majority is Limited and constrained by a written Constitution which protects the rights of the Individual and the Minority. The purpose of a Republic form of government is to control the Majority and to protect the God-given, inalienable rights and liberty of the Individual.
If mr Zelaya was trying to help honduras he will try to change an amendment that will benefit the people of honduras, not himself
Hello mates,
nice debates you’re holding here…
bottom line A DEMOCRACY STANDS FOR: DEMO – POWER AND CRATOS -PEOPLE . PEOPLE HAVE THE POWER (latin). if the constitutuon can not be changed by people will, you have a problem. Zelaya wanted to just ask the people if they agree with an idea: this step I am taknig as a step towards true democracy. People would still have the power through voting.
Please write to your representatives and our misguided president to inform them that this is constitutional in Honduras, although different from our way. If it weren’t amateur hour in the state department someone would have done the research and informed him already. Either that or they are deliberately siding with Hugo and Fidel to help turn a country into a communist dictatorship.
Having read article 357 of the constitution, it is clear that the term of office is 4 years. It is also true that there are penalities for trying to change the article.
My question is , did the referendum specifically ask for a change in the presidential term of office or only a referndum on generally changing the constitution.
Nik is right! In order to give an opinion you have to live in Honduras and know what we have been going through.
We have drug cartels everywhere that are being funded by las farc.
Who funds and has connection with las farc?
El alba
we have murders related to organized crime every day, like 5 diferent crazy gangs; who also work as hit man for police , drug lords and political figures such as Mel Zelaya. …poverty, illiteracy, corrupt goverment, homeless, no jobs, robberies, fraud, scams, police having too much power, the whole system is ruined.
So if you don’t know what’s going on don’t give stupid opinions just to create ignorant arguments.
The people who live there have to worry next day that they are not going to get shot by an asshole that just wants to kill because the system has screwed everones life up. Just because these people feel they can.
Honduras you are doing great!
Keep it up!
Fuera Mel Zelaya!!!!!!!! Stay out!!!!!
Erik!! I will ask you!!
You are blind? don’t you know, people in Venezuela are crying of hangry, don’t you try to cover the sun with a finger, see globo vision tv. not the liar’s news from chavistas….
Eric:
“And while you are so in an outrage about VENEZUELA…. how many policitcal prisoners are held by Chavez? The answer is exactly zero”
The answer is exactly 27 – some of these have been in prison since 2003.
Check out the website democracy now for plenty of interviews with human rights officials and other Honduran voices for a completely different viewpoint with just as much validity as the one being offered in this article.
Thank you for the clear and well stated explanation of our constitution regarding the very controversial removal of Mel Zelaya. This situation has encouraged me to be more informed about what Honduran law says. I went to a very prestigious billingual school in Tegucigalpa and do not remember EVER being taught about our constitution and our laws. Going to college in the US did not inform me in that area either. “Mi pueblo perece por falta de conocimiento.” This is in the Bible and is SOOO true!
I’m from Honduras, born in La Ceiba and I currently live in Weston, Florida. I want to tell my fellow Hondurian’s that I’m so very proud of each and everyone of you. Thank you for fighting for our constitiution and for our rights.
What you are doing right now will show the whole world how important it is to fight for their country. Keep up the fight and the good work, the whole world is very proud of you, especially the Venezuelan’s and the Cuban’s who are forced to live here in the USA because they can’t live in peace in their country. My prayers are with my family in Honduras and with each of one of you that is fighting for Mr. Zelaya to not come back to Honduras….Congratulations Catrachos, you are giving us, the whole world a great lesson!!!!!
I too am ashamed of President Obama’s position. I thought something was amiss when I heard my president’s allies were Castro, Ortega, and Chavez (among other despots). I took the time to try to understand what was happening there. Thank you Sr. Sanchez, you article was one of a number that helped me. To Hondurans I ask that you please forgive us. Millions of Americans are outraged at our president’s position. Many of us realize he is on the wrong side of this. Congratulations on your courage for putting the law above man. Men are too corrupt; it is only through respect for the law that freedom is possible. President Obama says that he is upholding American values by defending a legally elected president, but he does not even understand American values. An election is not the only factor to consider. A leader must first follow the law. Let us not forget that Adolf Hitler was legally elected. No man can be above the law else, all is lost. I say “President Obama – butt out.”
Eric, check your sources. You are being led by somebody that is using the practiced slogans that leftist people use, have used and will keep on using for ages. I live in Honduras, in San Pedro Sula. Just 1½ hours ago Edgardo Castro (known here as Chele Huelga, or Redman the Strike Starter) on channel 15 (HTV Honduras TV) was dictating slowly three times two phone numbers that connect anyone directly with SUR TV. He said that 200 telephone lines had been opened by Chavez to make reporters of every person that felt like doing so. Do you think they have the same kind of freedom in Venezuela or in Cuba? NO, MAN. Please, don´t become another one of the well intentioned goodwill men that can´t recognize evil because you are a good person that is used by people whose motto is crush whoever opposes you.
All,
I believe this article to be an outstanding laymen explanation to why things happened the way they did. This small country has a chance to be a beacon for democracy to the whole world!
I hope/pray that more and more countries (governments) will come to support the Honduran people/government as they govern their country with the constitution & laws already in place. This is/was a bold move by the brave and righteous men and women of Honduras. May you all have Fair Winds and Following Seas through the rest of this journey.
The real proof will be if/when the elections are allowed to be held this fall.
Keep up the good work, we could use you guys here in the U.S. to help us deal with our Marxist leadership!
This “analysis,” while well written, gets several major points of law absolutely wrong.
See, instead, Greg Weeks’ more informed take:
http://weeksnotice.blogspot.com/2009/07/honduras-summing-up-some-basic-points.html
1. According to the constitution, taking Zelaya out of the country was illegal. Period.
2. Zelaya is charged with trying to amend the constitution to allow re-election of the president (which would be illegal), yet no one has ever provided evidence to that effect. It is illegal to amend seven particular parts of the constitution, but the wording of the proposed vote did not mention any of them.
I do not care if you are positive he wanted to, as that does not constitute evidence. He said before the coup that he would leave office in 2010. Maybe he was lying, maybe not. But it deserves more investigation before overthrowing him. Ousting a president requires more than just assumptions about intent.
3. At various times, commenters have mentioned Venezuela as intruding (such as with the plebiscite materials) but I have never seen the Supreme Court or Attorney General mention evidence.* Until I do, I think Venezuela is irrelevant. That Zelaya liked Hugo Chavez is not relevant to his standing as president. That Chavez says ridiculous things about invasion is not relevant to Zelaya’s case either.
4. Zelaya was unpopular (even with his own party) and many people in Honduras are glad he’s gone. This is irrelevant to the law. Surprisingly, I have not yet seen anyone make an argument for how a parliamentary system might have mediated the situation better–Honduran political institutions are so weak it might not have mattered.
This “analysis” is well written but gets its Honduran legal precepts all wrong.
Professor Greg Weeks, editor of The Latin Americanist Journal, has a much clearer understanding:
http://weeksnotice.blogspot.com/2009/07/honduras-summing-up-some-basic-points.html
1. According to the constitution, taking Zelaya out of the country was illegal. Period.
2. Zelaya is charged with trying to amend the constitution to allow re-election of the president (which would be illegal), yet no one has ever provided evidence to that effect. It is illegal to amend seven particular parts of the constitution, but the wording of the proposed vote did not mention any of them.
I do not care if you are positive he wanted to, as that does not constitute evidence. He said before the coup that he would leave office in 2010. Maybe he was lying, maybe not. But it deserves more investigation before overthrowing him. Ousting a president requires more than just assumptions about intent.
3. At various times, commenters have mentioned Venezuela as intruding (such as with the plebiscite materials) but I have never seen the Supreme Court or Attorney General mention evidence.* Until I do, I think Venezuela is irrelevant. That Zelaya liked Hugo Chavez is not relevant to his standing as president. That Chavez says ridiculous things about invasion is not relevant to Zelaya’s case either.
4. Zelaya was unpopular (even with his own party) and many people in Honduras are glad he’s gone. This is irrelevant to the law.
Surprisingly, I have not yet seen anyone make an argument for how a parliamentary system might have mediated the situation better–Honduran political institutions are so weak it might not have mattered.
Correction to previous post: final line should read “…. and NOT for his own personal agenda.” oops
To the people of Honduras I send them my best wishes for success in saving their beautiful country from the crimes of communism. Zelaya is willing to change your Constitution to stay in power forever, as Castro and Chavez owners of Cuba and Venezuela did. The Mayor of Caracas had to hide himself from Chavez to save his life and anyone who opposes him must end in prission or in exile. Companies are leaving too, so no new jobs are being created in Venezuela. In Cuba being the first sugar producer in the past, does not produce now sugar,oranges, or
have even, milk, meat or soap to live a decent life. I heard that ITALY already recognised the new President. Other intelligent countries I hope that will follow him. Sorry but Obama did not took the correct action.
I’m sorry to burst your bubble Eric but all the media are up and running and operating in full force. The imposed curfew is to minimize the activities of the small minority of Zelaya supporters who notoriously instigate destructive demonstrations as a few have done since Sunday. I’m here. This is fact. Your opinion would change if you found more valid information sources that describe what the reality of this concerning situation is. In the meantime, we continue to hope that legal justice prevails and this country is allowed to continue to be a democratic country under a legal and honest leader who acts for the good of the people of the country and for his own personal agenda.
Oh Eric. Get over it. You sound like a Chavez fan. I am in Nicaragua. I am no fan of his. This was a Honduran situation, and they handled it their way. Obama wants to stay out of it. Chavez needs to do so.
It is a known fact that the extreme left and extreme right are experts at propaganda. The industrious middle class are too busy producing the funds for the government to waste and do not indulge in propaganda. The politicians of the world fell once again into the propaganda trap. Your article will help those who just make irresponsible comments and fling generalities and buzz words of poverty and democracy to understand the truth. We who live in Honduras had to put up with many months of lies and mis-spending of funds to accomplish Zelaya’s dream of eternal power so that he too can become the richest man in Honduras as Chavez has succeeded to become in Venezuela. However, when an Indian says enough is enough, he means it, come hell or high water.
Eric,
“The fact is that the organizers of the coup have closed nearly all of the press in the country. They have imposed curfews for the next week at least. They have imprisoned numerous political prisoners.”
Please quote your sources. I can read all the newspapers today that I could read 4 weeks ago. If you like, I can give you website URLs for them all and they are all available on the streets here in Hondras. The curfew at the moment only lasts until Friday (tomorrow). I do not know about the political prisoners but I would be surprised if there were none in Venezuela (perhaps that nice Mr. Chavez is not telling you about them).
Please get your facts right.
I don’t see how I have imposed on the free speech of anyone else. I respect your views and those of the people of Honduras.
I do question the democratic values of the actions that have taken place. Why is there not a freedom of assembly? Why is there not freedom of the press? Why are there no protections of unwarranted search and seizure?
I’m sure I ask these questions in vain but I’m just trying to “open your mind a tiny bit.”
I amin full support of the newly placed government. I am ashamed that my president Obama has stated otherwise. It is very clear that the people in power now are for the Constituion and the people. Not that criminal Zelaya and his cronies
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Eric,
I would not want you to be “bothered” by my opinion, as you have stated you are not. Just trying to open your mind a tiny bit. You are getting second-hand news from a leftist news agency not from this country and second hand reports from “friends” in my country.
Let me state that again, in MY country. I live here, I see first hand what is going on. That is why I have a difficult time believing your sources. Plain and simple. OK, we disagree, now have your say and let’s let others have their free speech.
Friends, Romans and countrymen, we can stay here discussing this until the cows come home and doubt very much whether we’ll come to an agreement.
YES, it’s true that the article in mention can be modified, but, BUT, the only ones who can authorized, organize, conduct, finance, and supervised this is the proper agency, NOT the executive branch. If we were to consult a group of political science professors at Harvard or Columbia, I’m almost certain that this point cannot be circumvent and that is what Zelaya, aided by Chavez was trying to do.
Only my humble opinion.
Catracha_Jenn:
It really causes me no pain whether you believe it or not. The fact is that the organizers of the coup have closed nearly all of the press in the country. They have imposed curfews for the next week at least. They have imprisoned numerous political prisoners.
Is this what you hold up as democracy? The government has stated that people can now be held without charge and their homes can be raided without warrants. This is you democracy?
And while you are so in an outrage about VENEZUELA…. how many policitcal prisoners are held by Chavez? The answer is exactly zero.
The poverty rate in Venezuela has also dropped more than 35% and there is much more access to healthcare than ever before. He may be a blowhard…but he has done more for his people and the region than the corporatists ever have. Educate yourself.
Thank you for the explaination. If only leaders of other countries (i.e. USA) could understand that the Constitution of the Honduran people was followed as it should have been. I congratulate the Honduran Congress, Justice System, and Military for doing what should have been done and upholding the laws of the country.
Eric,
Don’t you know Telesur is a VENEZUELAN run “news” agency?!
Now, how about checking their sources on that report – I for one do not believe it for a minute.
Please see this from “The field” Narco News
The Oligarch Diaspora shouts, again and again, in its flailing attempt to convince the Honduran people and the world that it’s coup d’etat was somehow legitimate, “we want democracy!”
Well, here’s a powerful example of the kind of “democracy” they apparently want.
In November of 2008, the voters of San Pedro Sula – with a population of one million, it’s the second largest city in Honduras – elected Mayor Rodolfo Padilla Sunseri (right, in the photo above) to be their Liberal Party candidate for mayor, with 63 percent of the vote.
Another candidate in that contest – William Hall Micheletti (left, in the photo above, and doesn’t that last name sound familiar?) – garnered just 16 percent, coming in third.
Padilla went on to win the mayoralty.
But when your uncle Roberto Micheletti is the newly installed dictator of your country, coming in third is good enough!
At 11 a.m. this morning, workers and citizens in and near San Pedro Sula City Hall heard gunshots and explosions, while riot police attacked a crowd that was demonstrating outside against the coup. More than 50 citizens were reportedly arrested. And nobody has seen Mayor Padilla ever since.
So who is now “mayor” of the city? Telesur reports: the coup “president’s” nephew, William Hall Micheletti.
Ain’t their version of “democracy” grand?
el che, I need to clarify. The Honduran press, civic leaders, etc. CAN notify their congressmen, etc. that they would like to see an opinion poll happen about calling an assembly to change the constitution. Their representatives, would then need to bring it up for a vote. If it passes, then yes, a government sponsored opinion poll could/should happen.
It is NOT the president of the Republic’s right to spend government money on a poll (especially given Honduras’ limited resources) not even called for by the people.
Given that the subject of the poll was to have an assembly to see if the constitution should be re-written, does show “intent”, as was pointed out in the article.
It would be the same if Obama were to decide he wanted to change the United States into a communist country after getting chummy with other heads of state of communist countries, and announced to Congress and the public that he was going to hold a national poll to see if people wanted to revise the US constitution to reflect that. Obviously, the US government has more money and resources than Honduras, but by Honduran law, he could not just spend government money to do so, nor get funding for his poll from Communist countries, and hold it himself, disregarding the say from other branches of government.
sounds like a law that should be changed, because the people not the congress should have the right to vote on it. Look at what id happening in the USA, politicians have driven us to the poor house where everybody is getting poorer while a few bath in the millions of our hard earned money. POWER TO THE PEOPLE!
Not knowing much about the constitution of Honduras, I like this articles and the comments.
But if a congress stand up (and they represent the people as well) and kick the president out of the country, the people should appreciate this act. It was, I’m sure, not an easy decision. This decision was formed not in a day.
And everything must be made by the congress to send the right message through the media to the Honduran and the international community.
And I must applaud that even a president doesn’t have immunity, and that is may be what scares the international community !
Thank you Mr Sanchez, for the thorough expliantion of the different facets of our constitution. Most of the world does not understand our histsory and the steps that were taken to maitain our democarcy. I am so proud of the Honduran people for standing up to Mr Zelaya. Adelante Catrachos juntos venceremos.
Not quite true about it being legal to vote for a revision to the constitution. It can only be legally put up for a vote IF CONGRESS approves such a thing.
You are correct in stating that the constitution specifically prohibits amendments that would allow for a second presidential term. However, you fail to point out that there is an article in the Constitution which spells out that the people CAN vote to write a new constitution.
This is what Zelaya asked for. A non binding vote that asked the citizens if they would like a new constitution. What he did was perfectly legal and democratic. The reason he was not arrested is because the government knew he couldn’t be legally impeached as they had no legal grounds.
Keep the faith and stay strong in your pursuit of protecting your constitution!!