Report to the Commission on Truth and Reconciliation of Honduras: Constitutional Issues

Noah Feldman , David Landau , Brian Sheppard & Leonidas Rosa Suazo

Drafted March 19, 2011. Presented March 26, 2011 in Antigua Guatemala,, Guatemala.

Bemis Professor of International Law, Harvard Law School. Assistant Professor, Florida State University College of Law. Associate Professor, Seton Hall University School of Law. Attorney at Bufete Rosa y Asociados, S.A.

Table of Contents
I. Executive Summary .....................................................................................................4 A. Legal Analysis ........................................................................................................ 5 B. Reform Recommendations...................................................................................... 7 II. Introduction ..................................................................................................................8 III. Factual Summary .......................................................................................................10 A. The Fourth Urn ..................................................................................................... 10 B. Events Surrounding the Removal of Zelaya Rosales from Office ........................ 15 C. Aftermath of June 28 ............................................................................................ 19 1. Reactions of Institutions of State & Emergency Decrees ................................. 19 2. Judicial Decisions ................................................................................................. 21 IV. Legal Analysis ............................................................................................................22 A. Legal Analysis of the Proposed Consultation or Poll Held by Zelaya Rosales ............................................................................. 22 1. Factual Summary .............................................................................................. 22 2. Legal Arguments ............................................................................................... 30

a. Positions Against Zelaya Rosaless Decrees ............................................ 30 b. Positions in Favor of Zelaya Rosaless Decrees ....................................... 31 3. Assessment ............................................................................................................ 32 The Procedures for the Consultation or Poll: The Use of the National Institute of Statistics and the Military ......................................................................... 32 B. Legal Analysis of the Actions of the Ministerio Pblico and the Supreme Court in Connection with the Criminal Case Against President Zelaya Rosales ................................................................ 41 1. Factual Summary .............................................................................................. 41 2. Summary of Legal Positions ............................................................................. 44 Positions Against the Legality of the Actions of the Ministerio Pblico and Supreme Court .......................................... 44 b. Positions in Favor of the Legality of the Actions of the Ministerio Pblico and Supreme Court .......................................... 45 Assessment ........................................................................................................ 46 a. a.

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a. The Judicial Process Against Zelaya Rosales ........................................... 46 b. The Use of the Military to Carry out the Arrest Warrant ......................... 47 c. The Underlying Basis for the Charges ...................................................... 48 C. Legal Analysis of the Congressional Actions ....................................................... 48 1. Factual Summary .............................................................................................. 48 2. Summary of Legal Positions ............................................................................. 54 a. Positions against the Legality of Actions taken by Congress ................... 54 b. Positions in Favor of the Legality of Actions taken by Congress............. 55 Assessment ....................................................................................................... 57 a. Removal of President Zelaya Rosales....................................................... 57 2

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b. Appointment of Roberto Micheletti Ban as Constitutional President ......... 61 c. Ratification of Bill 141-2009 on December 2, 2009................................. 62 D. The Militarys Role ............................................................................................... 63 1. Factual Summary .............................................................................................. 63 2. 3. Legal Positions of the Relevant Actors ............................................................. 66 Legal Analysis .................................................................................................. 67

a. Military Refusal to Assist with the Fourth Urn ........................................ 67 b. Militarys Removal of Zelaya Rosales from the Country ......................... 67 V. Recommendations .......................................................................................................69 A. Recommendations Delineating Institutional Responsibility During Crisis Situations ................................................................ 70 1. Presidential Removal ........................................................................................ 70 a. Substance of Forced Removals ................................................................. 70 b. Procedure for Forced Removals................................................................ 72 c. Resignation and Other Causes of Removal .............................................. 76 d. Self-Executing Constitutional Provisions for Forced Removal ................ 76 2. The Powers of Congress .................................................................................. 77 3. The Role of the Military .................................................................................. 78 B. Recommendations Strengthening the Rule of Law During a Crisis ..................... 80 1. The Role of the Judiciary .................................................................................. 81 a. Transparency and Legitimacy of Judicial Action ..................................... 81 b. Constitutional Powers of the Supreme Court............................................ 81 c. Judicial Structure ...................................................................................... 84 States of Exception ........................................................................................... 86

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C. Recommendations Related to the Processes of Constitutional Change ................ 88 1. Mechanisms of Direct Democracy.................................................................... 89 2. Constitutional Change ....................................................................................... 91

VI. Appendix A: List of Interviews Conducted ............................................................95

I. Executive Summary
This report has been prepared for the Commission on Truth and Reconciliation of Honduras. It has two aims: first to give a legal and constitutional analysis of the events surrounding the removal of President Jos Manuel Zelaya Rosales from power in June 2009 (Part IV of the report), and second to make recommendations for constitutional and legal reforms in order to avoid similar happenings in the future (Part V of the report). The report also includes, in Part III, a brief summary of the relevant facts. The events surrounding the June 2009 removal of President Zelaya Rosales from power involved three distinct dangers to democratic governance. The first is the risk that sitting chief executives or other powerful political actors will abuse their power in order to aggrandize themselves or to undermine other democratic institutions. There is a significant risk in many countries that these actors may be able to erode democracy from within. The second is the significant risk that militaries may become involved in political events, and in particular with irregular transfers of power. It is critical that militaries not take on the political role that they once commonly possessed in Latin America. The third is the lack of clarity in constitutional texts about the institutional role that should be played by different institutional actors during a crisis. The constitutional texts of numerous countries neither provide clear guidance as to how different actors should act during a crisis, nor explain how to manage conflicts between these actors. An observer would be most likely to conclude that both President Zelaya Rosales and many of the institutions involved in his removal from power acted illegally and unconstitutionally at certain points. Zelaya Rosales most likely acted unconstitutionally when he proposed the Fourth Urn consultation or poll, and when he pushed forward with that project despite judicial orders to the contrary. At the same time, Zelaya Rosales was probably not removed from office by a legal process. Congress passed a bill purporting to remove Zelaya Rosales from office, but Congress did not appear to have the constitutional power to remove the President. And members of the Armed Forces acted unconstitutionally when they removed Zelaya Rosales from the country. The three dangers to democracy identified in this case executive erosion of democratic governance, military intervention in politics, and lack of clarity about the institutional roles of different political actors are difficult for a constitutional text and for political actors to manage. One of the major problems in the Honduran case is that the constitutional text is vague or silent on several critical points. Most importantly, there is no clear constitutional roadmap laying out the substantive grounds for presidential removal, the process of removal, and the roles of various institutions during the removal process. We therefore highlight potential recommendations to the text. We also recommend reforms aimed at strengthening the rule of law in the country, and particularly the judiciary. Making the judiciary a more effective arbiter during an institutional crisis would lessen the possibility of resort to extraconstitutional processes.

A. Legal Analysis Part IV of the report offers legal assessments of the following events: (A) the actions of President Zelaya Rosales with respect to the Fourth Urn process; (B) the criminal trial that was initiated against Zelaya Rosales, (C) the congressional bill that purported to remove Zelaya Rosales from the presidency and to appoint a new president; and (D) the Armed Forces role both in refusing to obey Zelaya Rosales orders with respect to the Fourth Urn, and in removing Zelaya Rosales from the country. The Fourth Urn process aimed at holding a non-binding popular consultation or opinion poll in order to assess whether the public favored the calling of a Constituent Assembly to write a new national constitution in Honduras. Zelaya Rosales issued two executive decrees announcing this process and placing its administration in the hands of the National Institute of Statistics. He also issued an Executive Accord which ordered the Armed Forces to provide support for the poll. Our conclusion is that Zelaya Rosales lacked the legal authority to call for a nationwide popular consultation or opinion poll via executive decree. Moreover, he illegally placed the management of the poll in the hands of the National Institute of Statistics, which was not authorized to perform that function. The National Institute of Statistics, unlike other institutions like the Supreme Electoral Tribunal, was not properly equipped to ensure that a nationwide voting process would be conducted fairly. He also violated statutory and constitutional norms related to the military by ordering the Armed Forces to support the poll. Most critically, Zelaya Rosales violated the constitutional norm that the Armed Forces be apolitical by attempting to involve them in an institutional struggle between branches of government. We note that it is unclear whether Zelaya Rosales violated Article 239 of the Constitution. Article 239 prohibits presidential reelection, and along with Article 374 makes that prohibition unamendable under any circumstances. Article 239 also states that anyone who breaks that prohibition or proposes its reform, along with those who support him in doing so directly or indirectly, shall immediately cease in the exercise of their offices and be ineligible to serve in a public post for ten years. These facts raise difficult questions about the scope of Article 239 and about whether constitutional provisions may ever be made truly unamendable. We believe these questions are unanswerable within the framework of the Honduran Constitution. Finally, we note that Zelaya Rosales acted unlawfully by disobeying orders of the Contentious-Administrative Court stating that he must desist from carrying out the proposed poll. Regardless of whether those judicial orders were correct in all respects, they were never reversed by any higher-ranking court. Thus, they should have been obeyed. We also conclude that important aspects related to the removal of Zelaya Rosales from office, on June 28, 2009, were illegal and unconstitutional. There are criminal indictments against Zelaya Rosales that are dated as filed before the Supreme Court on 5

June 25 and June 26. However, we are unable to determine whether the indictments were actually filed on those dates. They were kept secret until June 30, 2009, two days after Zelaya Rosaless removal. No statutory provision appears to allow a judicial process to be kept secret once an indictment is filed. The criminal process against Zelaya Rosales may have been legal in other key respects. The Constitution allows the Supreme Court to try sitting high officials, and the Code of Criminal Procedure regulates this process. According to the Code of Criminal Procedure and Criminal Code, high officials may be suspended during the criminal process for certain crimes and may be subject to removal upon conviction. This procedure was followed in the case against Zelaya Rosales, up until the point when the arrest warrants were executed. The arrest warrant directed the military to seize Zelaya Rosales and bring him before the competent judge for an initial hearing. The Constitution likely allows arrest warrants to be executed by military rather than police personnel where necessary. Military involvement in carrying out the warrants was arguably necessary in this case. While the criminal process would have been a legal way to remove Zelaya Rosales from office, that process was not completed properly. The process was interrupted on June 28, 2009, when the military charged with seizing Zelaya Rosales removed him from the country rather than bringing him before the competent judge. We conclude that it is most likely that Congress did not properly remove Zelaya Rosales from office. Congress issued a bill on June 28, 2009 purporting to censure Zelaya Rosales, remove from him office, and appoint the President of Congress as the interim President of the Republic. The bill properly followed the line of succession. However, it did not properly remove Zelaya Rosales from office. Congress is given the power to censure officials of state. However, it is given no explicit power to remove executive officials, either in the Constitution or in the laws. Thus Congress appears to lack the power to remove the President from office. An analysis of Article 239 is unlikely to change this conclusion. As stated above, it is unclear whether Zelaya Rosales actually violated this constitutional article. Even if he did, it is unclear what kind of sanctioning process would apply. The article provides that anyone who breaks the no-reelection provision or proposes its reform shall cease immediately in the practice of their office. We think it unlikely that this provision is self-executing and automatically results in the removal of the President. Some competent institution must first determine that the article has been violated. Nor do we think it likely that it gives the Congress removal power that it does not otherwise possess. Finally, we conclude that the leadership of the Armed Forces acted properly when it refused to obey Zelaya Rosaless orders to support the Fourth Urn process. These orders were illegal, and under the Constitution the Armed Forces may not obey illegal orders. However, members of the Armed Forces acted unconstitutionally when they removed Zelaya Rosales from the country. Article 102 of the Honduran Constitution prevents expatriation of citizens. Moreover, while Article 272 gives the Armed Forces the duty to defend state institutions, this duty must be carried out in accord with the 6

Constitution and laws. The Armed Forces do not have any extra-constitutional powers to arbitrate between state institutions during a crisis. We do not know if any other institution or political actor consulted with the Armed Forces or ordered them to remove Zelaya Rosales from the country. Any participation in this decision by other institutions of state or political actors would also be unconstitutional. B. Reform Recommendations Part V of the report contains our recommendations for constitutional and legal reform, based on our knowledge of constitutional law and politics as well as a study of relevant constitutional texts both within the region and globally. We focus here on three distinct topics: (A) reforms aimed at clarifying the process of removal for high officials and especially chief executives; (B) reforms aimed at strengthening the rule of law in Honduras, and (C) reforms aimed at clarifying the relevant processes of constitutional change and at making those processes more stable. A major problem in Honduras was that the substantive grounds for removal of a high political official, the removal process, and the role of various institutions during that process are not clearly laid out in the constitutional text. The creation of a clear roadmap within the constitutional text would help avoid extraconstitutional actions like those that occurred on June 28. We thus recommend that the Constitution be amended to clearly articulate the grounds for presidential removal, as well as the institutions that will be charged with presidential removal and the process that will be followed. We also recommend that the roles of certain institutions, especially the Congress and the Armed Forces, during the removal process be clearly specified. It is particularly important that the Armed Forces not be given any arguably extralegal powers to arbitrate a political crisis. We also recommend reforms aimed at strengthening the rule of law in Honduras. We emphasize three points. The first is transparency in judicial processes, particularly in cases involving high officials. These processes should never be conducted in secret. The second is that the judiciary, and particularly the Supreme Court, should be given the appropriate powers and independence to act as an arbitrator between political institutions in the event of a crisis. This would reduce the probability of resort to extra-legal means during a crisis. Finally, we aim to reduce the likelihood of human rights violations during an emergency. For this purpose, we recommend changes both to the judiciary and to the regime governing states of exception in Honduras. Lastly, we recommend a series of reforms aimed at the processes of constitutional change in the country. We recommend reforms to clarify the mechanisms of direct democracy it is important that the Constitution clearly state whether certain devices may be used, under what conditions, and for what purposes. It is also important that mechanisms of direct democracy be designed in a way that minimizes the probability of abuse by a chief executive who is aiming to aggrandize his power or undermine other democratic institutions. We also recommend reconsideration of unamendable 7

constitutional provisions like the prohibition on presidential reelection in Honduras. By failing to provide any legal mechanism for constitutional change, these articles may invite instability and crisis. We suggest alternative mechanisms, such as heightened thresholds for amendment of certain articles, which may be more appropriate. However, we express no opinion on the desirability of the prohibition on presidential reelection itself. Countries have taken a variety of approaches to this issue, and many of these may be reasonable in the Honduran context.

II.

Introduction

This report has been prepared for the Commission on Truth and Reconciliation of Honduras. Its purpose is to give a legal analysis of the events surrounding the removal of President Jos Manuel Zelaya Rosales from power in June 2009, and to make recommendations for constitutional and legal reforms in order to avoid similar occurrences in the future. The events surrounding the removal of President Zelaya Rosales demonstrate three important dangers to modern democracy, both regionally in Latin America and around the world. The first is the risk that a sitting chief executive will abuse his power and therefore seek to undermine democratic values and the rule of law from within the state. There is a significant risk in many countries that chief executives may erode democracy by aggrandizing their own power and by undercutting the power of other democratic institutions. The second is the risk of irregular transfers of power, and particularly the significant risk posed by military intervention in politics. Military intervention in politics has been a critical problem in Latin American politics and continues to be an important problem around the world. The third is the lack of clarity as to the roles and functions that different political actors should have assumed during a political or social crisis, and the lack of clear mechanisms for determining conflicts between these actors. Many constitutions and legal orders do a poor job either in allocating functions to different institutions or in setting up mechanisms to efficiently decide conflicts between those institutions. It is difficult for a constitution and for political and legal actors to manage these three risks properly. In Honduras, an observer would most likely conclude that both President Zelaya Rosales and those who removed him from office acted illegally and unconstitutionally. President Zelaya Rosales acted illegally by pushing forward with a popular consultation or opinion poll aimed ultimately at calling a Constituent Assembly, when he lacked the legal authority to call such a consultation or poll. He also disobeyed judicial orders that he refrain from carrying out the consultation or poll. Members of the Armed Forces then acted illegally in removing Zelaya Rosales from the country. And Congress did not lawfully remove Zelaya Rosales from office. Much of the problem in the Honduran case stemmed from unclear legal and especially constitutional text. This contributed to the crisis by creating a lack of clarity about when the president could be removed, how the removal process would work, and 8

what role institutions such as the Armed Forces, Congress, and the courts should play in the process. We recommend a series of constitutional reforms to clarify these processes and roles. The construction of a clearer process would reduce the risk of extraconstitutional actions, especially by the military. We also recommend a second set of reforms aimed at strengthening the rule of law in the country. The strengthening of the judiciary as a more effective arbiter in institutional crises would also help to reduce the risks of extraconstitutional or military involvement. Finally, we recommend a set of reforms to the mechanisms of constitutional change, aimed at making the constitutional system more stable. We recommend reforms to the devices of direct democracy in order to make the relevant textual provisions clearer and less subject to abuse. We also discuss the risks of having unamendable constitutional provisions in the text, and discuss alternative approaches that might be more desirable. This report is organized as follows. In Part III, we present a brief summary of the key facts of the dispute. Part IV offers our legal assessment of the actions of the following actions: (A) President Zelaya Rosales Fourth Urn process, (B) the criminal legal case initiated against Zelaya Rosales, (C) the congressional decree which purported to remove Zelaya Rosales from office and appoint a new president, and (D) the actions of members of the Armed Forces both in disobeying Zelaya Rosaless orders with respect to the Fourth Urn and in removing Zelaya Rosales from the country. Finally, Part V offers our recommendations for constitutional and legal reforms in Honduras. A few words about our methodology: Our understanding of the facts is based on documents collected by the Commission and which were shared with us, on media accounts of what occurred, and on interviews conducted with key participants on both sides of the dispute in Tegucigalpa on January 13 and 14, 2011. The list of interviews carried out for this project is found in Appendix A. Other than these interviews, we did not have the capabilities to conduct independent research into the facts. Our legal analysis was based on a close study of the Honduran Constitution, relevant statutory texts, and a range of commentaries and legal analyses written by domestic and foreign experts. In order to make reform recommendations, we undertook a wide consultation of constitutional and statutory texts, as well as secondary texts written by experts on constitutional law and politics, both inside and outside of Latin America. The present work is limited to determining the constitutionality and legality of the actions taken under Honduran law. We do not express any opinion as to the legal responsibility or consequences to individuals or institutional bodies that those actions may have generated. Nor do we explicitly discuss whether or not any of the actions taken constituted a coup dtat. A coup dtat is not a legal term found either in Honduran domestic law or in international law. It also lacks a clear, legally applicable definition.

III. Factual Summary 1

A. The Fourth Urn The direct precipitant of the conflict between President Zelaya Rosales and the other institutions of state was Zelaya Rosaless attempts to call a consultation or poll on the topic of whether a Constituent Assembly should be convoked. But that event is hard to interpret without understanding other events, particularly since mid 2008, that provoked conflict between Zelaya Rosales, the Congress, and the Supreme Court. For example, in 2008 Zelaya Rosales agreed first to sign an agreement with PetroCaribe, Venezuelas low-cost oil program for Central America, which would provide more favorable terms for petroleum purchases, 2 and second, agreed to join the Bolivarian Alternative for the Peoples of Our America (ALBA), Hugo Chavezs regional foreignpolicy organization, which offered credit. Although this second agreement was ratified by Congress, it was opposed by the leading opposition party and later disavowed by a large part of Zelaya Rosaless own party, especially the President of Congress, Roberto Micheletti. 3 Further, Zelaya Rosales failed to present to Congress a budget for 2009 by the constitutional deadline of September 15, 2008, and thus no budget was passed for that year. 4 Both the Supreme Court and the Congress complained that they received no budgetary allocations in 2009. Finally, in elections for new Supreme Court justices, who are selected by the Congress from a list of candidates compiled by a variety of organizations, Zelaya Rosales allegedly sought to have candidates favored by him selected. This incident, which occurred in January 2009, created further conflict between the Congress and the President. The candidates favored by Zelaya Rosales were not selected to the Court. 5 In November 2008, Zelaya Rosales first raised the idea of having a plebiscite, simultaneous with the three other elections of 2009 (for president, congress, and local officials), determining whether to call a Constituent Assembly in 2010. On November 21, he stated that I am going to govern for four years. But I think that yes it is necessary to begin a dialogue with the political forces of the country about the necessity of a
For convenience, we repeat portions of the Factual Summary in Part IV in the specific sections to which they relate. Thus, those readers that are concerned only with a particular institutions role in these events, may skip forward to that particular section and find the relevant facts included there as well. Citations to official documents are to the indices of these documents maintained by the Commission on Truth and Reconciliation in Tegucigalpa, Honduras. 2 See Presidente Hondureno firma contrato para recibir combustible de PetroCaribe, TERRA (USA) (Jan. 29, 2008), available at http://noticias.terra.com/articulo/html/act1117052.htm. 3 See Central America: Zelaya Rosales Plays the Chavez Card, THE ECONOMIST (Oct. 30, 2008), available at http://www.economist.com/node/12522958?story_id=12522958. 4 See Presupuesto 2009 no llega al Congreso Nacional, LA PRENSA (Feb. 5, 2009), available at http://www.laprensa.hn/content/view/full/127182. 5 Congreso Nacional de Honduras elige a los 15 Magistrados de la Corte Suprema de Justicia, LA PRENSA (Jan. 26, 2009), available at http://www.laprensa.hn/Otras-Secciones/Especiales/Historicaeleccion-del-25-de-enero-de-2009.
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convocation, parallel to the next electoral process, about a plebiscite, without interrupting the electoral process. We are going to fight for the yes, others will fight for the no, a plebiscite will decide whether we convoke a National Constituent Assembly without interrupting the electoral process and that in 2010 we can put forward this free exercise of democracy. 6 On March 23, 2009, the president acting with his Council of Ministers, issued a proposed decree (which was never officially published), Decree PCM 05-2009, ordering a public consultation to be held on June 28, 2009. 7 Articles 1 and 2 of the proposed decree contained the question that the consultation would ask: Are you in agreement that, in the general elections of November 2009, a Fourth Urn be installed to decide on the convoking of a National Constituent Assembly to approve a new constitution? Article 2 of the decree stated that [t]his consultation will be placed under the charge of the National Institute of Statistics (INE) as the organ charged with the production of trustworthy and opportune statistics necessary for permanent knowledge of national reality, development planning, and the management of decision-making in the public sector, for which it can execute and coordinate the generation of data. Finally, Article 3 said that a positive result of this popular consultation will serve as a legitimate basis for the Executive to send to Congress a special legal project to place the fourth urn on the ballot in the general elections . On April 23, 2009, Zelaya Rosales held a press conference in which he and his ministers further discussed the fourth urn idea the Secretary of the Presidency noted that they intended to have an opinion poll on June 28. 8 On May 8, 2009, two lawyers in the Ministerio Pblico (or Prosecutors Office), and acting on behalf of that office, filed an action in front of the ContentiousAdministrative Court, both asking that court to suspend the popular consultation as an interim measure and to nullify the decree as both illegal and unconstitutional. 9 The demand argued that any popular consultation should, under Article 51 of the Constitution, be supervised by the Supreme Electoral Court and not by the Institute of Statistics, that it constituted a plebiscite or referendum under Article 5 of the Constitution, but did not follow the prerequisites (such as prior congressional approval) spelled out in that article. Finally, the demand argued that Zelaya Rosales, by using a consultation to call a Constituent Assembly that would write a new constitution, was using the mechanism to reform the petrified articles listed under article 374 of the Constitution that could not be reformed under any circumstances. On May 13, 2009, the
Manuel Zelaya Rosales propone Asamblea Constituyente, (Nov. 22, 2008), available at http://www.heraldohn.com/index.php/content/view/full/46876. Others politicians took a different view. For example, Rafael Pineda Ponce, an ex presidential candidate for the Liberal Party, stated on January 17, 2009 that President Zelaya Rosales is promoting an environment of destabilization in order to remain in power. See Buscan crear vaco de poder en Honduras, EL HERALDO (Jan. 17, 2009), available at http://eng.elheraldo.hn/content/view/full/69737. 7 CSJ-1-2_3, Documentos que acompaan la demanda, at 19-21 (documents accompanying the demand against Zelaya Rosales in the administrative case). 8 Id. at 14-18. 9 CSJ-1-2_2, Demanda Ordinaria.
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administrative judge created a separate piece on the preliminary question of whether PCM-05-2009 should be suspended pending resolution of the merits. The Procurador (or Attorney General), Rosa America Miranda de Galo, who is legally charged with defending the law, made a filing on May 20, 2009. 10 In her filing, she expressed no view on the ultimate merits question, namely the legality of the decree. On the question of the preliminary suspension of the decree, she stated: For the reasons stated above, it is evident ... that the injunction could provide the most adequate circumstances for this tribunal to resolve the legal situation ; in this regard, Article 121 of the Law of the Contentious-Administrative Jurisdiction stipulates that injunctions may be granted when the execution of the actions claimed may cause damages or prejudice impossible or difficult to repair; in this sense, it is solicited that the Judge determine the corresponding Interlocutory Sentence, according to what proceeds from the law. In an order dated May 25, 2009, the Administrative Court denied Zelaya Rosaless lawyers, along with others, the right to intervene in the suit (as coadyuvante), arguing that they would only have such a right if their arguments harmonized with the argument of the Procuradura, and in this case they were trying to make independent arguments. 11 On May 22, 2009, the Supreme Electoral Tribunal issued an order to the Director of the National Institute of Statistics, Sergio Snchez, to appear before the Tribunal and explain the actions of that agency in connection with the June 28 consultation. After the meeting, Snchez stated that no poll was binding and that: There is not a published Decree. We are going to begin to work in the moment in which there is an Executive Decree following the law and we are going to comply with it. Consultations of an electoral nature correspond to the Electoral Tribunal; the National Institute of Statistics carries out polls and censuses. 12 On May 22, the Supreme Electoral Tribunal issued an order to the press to stop running any publicity for the June 28 consultation by May 26, and also announced that it had opened an investigation into whether the organizers of the consultation had committed any electoral crimes in carrying it out. 13 Zelaya Rosales refused to stop running the advertisements and other publicity for his consultation. 14 On May 26, 2009, Zelaya Rosales after a meeting of his Council of Ministers issued (but at this point did not publish) a new decree, PCM-019-2009, voiding PCM-05CSJ-1-4_5, Personamiento de Rosa Miranda en representacin legal del Estado. The Procuradura would subsequently file, after receiving the permission of the executive, a formal allanamiento that accepted the charges made against the decree and that therefore asked the Court to nullify the decree on the merits. However, such a decree was not filed until August 14, 2010. 11 CSJ-1-2_22, Resolucion de Rechazar de plan improcedentes todos los personamientos que anteceden y las defensas previas. 12 INE admite ante el TSE que no organiza encuesta, EL HERALDO (May 21, 2009), available at http://www.elheraldo.hn/content/view/full/132728. 13 TSE ordena retirar publicidad de la 4ta. urna, LA PRENSA (May 22, 2009), http://www.laprensahn.com/Apertura/Ediciones/2009/05/22/Noticias/TSE-ordena-retirar-publicidad-de-la4ta.-urna. 14 Consulta sobre la cuatra urna no la para ni Kaliman, dice Mel Zelaya Rosales, PROCESO DIGITAL (May 22, 2009), http://www.proceso.hn/2009/05/22/Politica/Consulta.sobre.la/13596.html.
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2009. He issued (but did not at this point publish) instead a new decree (PCM-020-2009), which was essentially identical to the old decree, but which called the questioning on June 28 a national opinion poll rather than a popular consultation. 15 The Court, in an interlocutory decision dated May 27, 2009, accepted the arguments of the Ministerio Pblico and suspended PCM-05-2009 (essentially issuing a preliminary injunction against it), as well as any publicity in connection with the consultation scheduled for June 28.16 On May 29, 2009, the court used its power to ensure its orders were complied with to issue a clarification of its ruling, stating that the order also barred any other administrative act, general or particular, that carries the same end as the tacit administrative act that has been suspended, as well as any change in name in the consultation or questioning procedure, which implies an evasion of compliance with the interlocutory decision that is being clarified. 17 The Court stated that it issued the clarification in response to a request from the Ministerio Pblico. The Procuradura declined to file any appeal on behalf of the executive branch. Zelaya Rosales filed a constitutional action called an amparo both against the decision and its clarification. These amparos were denied both by the Court of Appeals and by the Supreme Court. Both Courts held that Zelaya Rosales had no standing to file any sort of appeal, since the suit was against the State of Honduras, and the Procuradura was its legal representative and had chosen not to appeal. The decision of the Court of Appeals was made on June 16; the decision of the Supreme Court was not formally made until July 23, after Zelaya Rosales had been removed as president. 18 The Administrative Court would subsequently issue three communications to Zelaya Rosaless office. The first, on June 3, ordered him to adopt necessary measures to carry out the order. 19 The second, on June 18, ordered him to stop carrying out acts that evaded the decision. 20 The third, also issued on June 18, ordered him to report on compliance with the decision within five days. 21 On May 29, Zelaya Rosales held a meeting of his cabinet on national television, where he asked his Secretary of Defense, Edmundo Orellana Mercado, to read Executive Accord 027-2009. He also appeared together with General Romeo Vsquez, the chief of the Estado Mayor Conjunto, the governing body of the armed forces. The
15 CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros, at 69-70 (this press conference is part of the record of the criminal case against Zelaya Rosales). 16 CSJ-1-4_7, Sentencia Interlocutoria y notificaciones. 17 CSJ-1-4_10, Aclaracion del Juzgado de la Sentencia Interlocutoria y notificaciones. The administrative court did not issue a final order on this decree until September 28, 2009, well after Zelaya Rosales had been removed from the country. CSJ-1-2_34, Fallo de declarar procedente la accion incoada por Gelmer Humberto Cruz y Henry Salgado Nunez. This final order declared decree PCM-05-2009 null. The judge agreed with all of the arguments raised by the Ministerio Pblico, and added that there was only one way to amend the constitution approval by two-thirds of Congress under Article 373. Since Zelaya Rosaless decree did not follow this procedure, it was void for this additional reason as well. 18 CSJ-1-3_8, Inadmisibilidad del Recurso de Amparo (Court of Appeals); CSJ-1-5_11, Resolucion Sala de lo Constitucional declarando el Recurso de Amparo (Supreme Court). 19 CSJ-1-6_13, Comunicacion Judicial al Secretario de Estado en el Despacho de Seguridad. 20 CSJ-1-6_20, Comunicacion Judicial al Secretario de Estado en el Despacho de Finanzas. 21 CSJ-1-6_10, Comunicacion Judicial al Secretario de Estado en el Despacho de la Presidencia.

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Executive Accord, for the first time, ordered the military to support the Institute in carrying out the poll. 22 This Accord was also never published. Several other executive officials also spoke at the meeting about the poll and noted that the government would be logistically ready to have 15,000 polling places open on election day and had technology in place so people could quickly learn the results. Finally, the presidents Minister of the Presidency, Enrique Flores Lanza, stated that the opinion poll was absolutely legal under the Constitution, Law of Citizen Participation, the Law of the National Statistics Institute, and international treaties signed and ratified by Honduras. Flores also noted that the current accord had absolutely nothing to do with the demand before the Administrative Law Judge against a tacit act that called for a national consultation [because] all of the decisions adopted in that process cannot be applied with respect to this new proceeding for a national opinion poll, which is absolutely legal. General Romeo Orlando Vsquez stated that he would comply with Zelaya Rosaless order to support the consultation. On June 3, Congress passed a resolution disapproving of Zelaya Rosaless conduct and stating that he had disobeyed a judicial order and issued an arbitrary command to the armed forces to support the National Institute of Statistics in the execution of an illegal poll. 23 On June 18, the Contentious-Administrative Court sent a communication to General Romeo Vsquez, ordering him to abstain from actions that would lead to the implementation of the consultation or poll on June 28. 24 On June 24, the military sent a memo to the administrative court stating that it would comply with the courts order. On June 24, Zelaya Rosales read a document on national television in which he fired General Romeo Orlando Vsquez and accepted the resignation of the Minister of Defense, Edmundo Orellana Mercado. The commanders of the three branches of the military also resigned on that day. On June 25, 2009, General Vsquez filed a writ of amparo against his termination. He argued that Article 40 of the Constitutive Law of the Armed Forces only allowed him to be fired for certain specified reasons, and that he had not been fired for one of those stated reasons. 25 He also argued that he was entitled to a right to defense under Article 82 of the Constitution, which had not been given him, and that under Article 323 of the Constitution, he could not carry out illegal orders. 26 That
CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros (June 25, 2009) (the televised meeting is published along with the complaint against Zelaya Rosales). 23 El Congreso imprueba la conducta del Ejecutivo, LA PRENSA (June 4, 2009), available at http://www.elheraldo.hn/Ediciones/2009/06/04/Noticias/El-Congreso-imprueba-la-conducta-del-Ejecutivo. 24 C-1-6_37, Comunicacion Judicial a al Jefe del Estado Mayor Conjunto. 25 Article 40 of the law states that the Chief of the Estado Mayor Conjunto would be named by the president, would have a term of three years, and could only be removed for the following reasons: (1) Resignation, (2) Absolute incapacity duly accredited, (3) Removal from the post by signed judicial decision, (4) Loss or suspension of citizenship decreed by a competent authority in accord with law, and by ending his time of active service in the military. 26 CSJ-1-13_2-SCO-881-2009, Recurso de Amparo por Mauricio Mazariegos, a favor de Romero Vasquez (June 25, 2009).
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day, the Constitutional Chamber of the Supreme Court issued an order provisionally suspending the removal as unconstitutional.27 The Court would eventually rule on the merits on March 9, 2010, finding that the removal was indeed unconstitutional and unanimously reinstating the General to his post. 28 Also on June 25, the Supreme Electoral Tribunal issued an order calling the proposed poll illegal and denouncing the events before the Ministerio Pblico. Further, the Supreme Electoral Tribunal ordered the Armed Forces to abstain from carrying out the poll. 29 The next day, the Supreme Electoral Tribunal issued an order to the Ministerio Pblico to seize all materials related to the poll. 30 Congress also held a session on June 25, in which it formed a commission to investigate the actions of President Zelaya Rosales, and to approve or disapprove the conduct of his administration. 31 Finally, on June 25, 2009, President Zelaya Rosales published both PCM-0192009, which rescinded the still unpublished PCM-05-2009, and PCM-020-2009, which called for the opinion poll to be held on June 28 by the military. 32 He also led a band of followers to the Acosta Mejia Air Force base, where they took 814 boxes of material the ballots and ballot-boxes needed for the poll that was to be held on June 28. 33 After taking these materials, Zelaya Rosales stated: I told [the commander of the base] that I should be recognized as Chief of the Armed Forces, and that I wanted the ballot-boxes so that I could carry them away. 34 B. Events Surrounding the Removal of Zelaya Rosales from Office The Ministerio Pblico filed two criminal indictments against Zelaya Rosales, one dated June 25 and the other June 26. Neither case file was made public until June 30. The first indictment, dated June 25, alleges that Zelaya Rosales had committed crimes against the form of government (Article 328 # 3 of the Criminal Code), treason (Article 2 of the Constitution; Article 310-A of the Criminal Code), usurpation of functions (Article 354 of the Criminal Code), and abuse of authority (Article 349 # 1

CSJ-1-13_4, Providencia de CSJ en nombre del Estado, acumulando Amparos a favor de Romero V. y otros. 28 CSJ-1-13_28, Resolucion de CSJ, Sala de lo Constitucional, Notificacion. 29 CSJ-1-11_17, Copias debidamente autenticadas del Tribunal Supremo Electoral, at 2-4. 30 See id. at 5-6. 31 Acta 30 of June 25, 2009, CN-9_30-Acta-30-25-06-2009-a-b. 32 PCM-020-2009 stated the following legal grounds as support for the decree: articles 1, 2, and 245 nos. 1-2 of the Constitution, articles 1, 3 no. 4, and 5 no. 1 of the Law of Citizen Participation, articles 1, 4 no. 1, 5 no. 3, and 12 of the Law of the National Institute of Statistics, article 2 final paragraph of the Regulation of the Law of the National Institute of Statistics, articles 11, 17, 19, 20, 22 nos. 9 & 10 of the General Law of Public Administration, articles 10 and 11 of the Regulation of the Organization, Functioning, and Competences of the Executive Power, article 19 of the International Covenant on Civil and Political Rights, and article 6 of the Inter-American Democratic Charter. See CSJ-1-11_16, Informes de Instituciones del Estado emitiendo opinion sobre restitucion o no de Manuel Zelaya, at 94. 33 CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros. 34 Mel empieza a quedarse sin respaldo, EL HERALDO (June 26, 2009), available at http://www.elheraldo.hn/layout/set/print/content/view/print/156725.

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of the Criminal Code). 35 The complaint asked for an arrest warrant against Zelaya Rosales to be issued, arguing that he was a flight risk and that there was a risk of destruction of evidence. 36 The Ministerio Pblico also asked in the complaint that the Armed Forces, and not the military, serve the warrant, arguing that the police had a conflict of interest because they worked under the Secretary of Security, who in turn was a collaborator of the President, and thus there was a fear that the police might not comply with the warrant. 37 Finally, the complaint requested that the case file be kept secret. 38 There is also a second complaint, also lodged by the Ministerio Pblico, against Zelaya Rosales, dated June 26, 2009. It is substantially identical to the first complaint. 39 The Supreme Court proceeded to name a single natural judge, Magistrate Tomas Arita Valle, who would preside over the pre-trial phase of the case. 40 The Supreme Court, on June 26, approved the request of this natural judge to issue a warrant allowing entry into Zelaya Rosaless house (between the hours of 6 a.m. and 6 p.m.) and another warrant authorizing his capture. 41 The entry warrant ordered him to be brought before the corresponding authority. The warrant was to be executed by Rene Antonio Hepburn Bueso, a lieutenant coronel in the Estado Mayor Conjunto of the armed forces. The case file against President Zelaya Rosales, including the complaint, naming of the natural judge, and search warrant, were not made public until June 30, two days after Zelaya Rosaless removal. On June 29, the Ministerio Pblico filed a motion asking that secrecy be lifted from the case and that the case file be made public, given that the reasons for keeping the case secret had disappeared. The Supreme Court agreed and made the file public on June 30. 42 Thus, there was no evidence or public knowledge of the existence of any criminal case against Zelaya Rosales until June 30. Four squads from the military arrived at Zelaya Rosaless home slightly before 6 a.m. on June 28, and he was taken to an Air Force facility and flown to Costa Rica. A subsequent press release issued by the military on June 30 would state that the actions of the military were in compliance with the warrant issued by the Supreme Court on June 26. Zelaya Rosales conducted a press conference (still in his pajamas) immediately upon arrival in Costa Rica, and spoke again on July 1 when addressing the General Assembly of the Organization of American States. On those occasions, he stated that the military pointed guns at him and ordered him to accompany them, where they brought him to an airplane and took him to Costa Rica. We do not know whether the military acted alone or after consultation with or under the orders of other institutions of state. Upon accepting the presidency on June 28, 2009, President Micheletti stated that [o]ur army has only fulfilled the duty ordered to it
35 36

CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros. CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros, at 60-61. 37 CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros at 61. 38 Id. at 47. 39 CSJ-1-7_2, Requerimiento Fiscal Contra Manuel Zelaya Rosales. 40 Id. at 89. 41 CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros, at 92-93. 42 CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros, at 95-96.

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by the Supreme Court, the Ministerio Pblico, and the great sentiment of the Honduran people. 43 On June 29, the new Chancellor (Minister of Foreign Relations) of the Honduran government, Enrique Ortez Colindres, gave an interview with CNN en Espaol. He was asked why you let Zelaya Rosales go to Costa Rica? He responded: We spoke with the President of Costa Rica, through his delegates and representatives, and he, agreeably, left room for things not becoming abusive but instead would allow compliance with law. Ortez Colindres was also asked why they had not first arrested and suspended Zelaya Rosales from his post. He stated: [T]he President of the Republic had changed the consultation, and then, published it in the Gazette and that same day, after carrying forth the spurious consultation, he was going to declare a National Constituent Assembly, and went to break the judicial order and so this was necessary for the authorities that make the decisions in order to avoid a violation of that nature producing thousands of deaths in Honduras. 44 Further, General Romeo Vsquez on July 8, 2009 gave an interview to CNN en Espaol in which he stated that he acted on behalf of an inter-institutional consensus. He also stated that someone was giving the orders, and that the military had to comply with them because the Constitution commands the armed forces to protect the rule of law. 45 During the criminal trial subsequently initiated against six high-ranking members of the armed forces (including General Romeo Vsquez), these members stated in a letter of August 24, 2009 to the Ministerio Pblico that they themselves violated the judicial order and made the decision to transfer [Zelaya Rosales] to Costa Rica in order to preserve the lives of Honduran and foreign citizens. 46 Also on June 28, at 12:30 p.m., the Congress convened, and even though the presence of a quorum is stated, it is unclear how many members were present. The Congress proceeded to read the report of the special commission which had been appointed on June 25. The Commission found that Zelaya Rosales had violated the law and Constitution via seven specific acts: (1) failing to sanction decrees and laws sent to him in compliance with the law, (2) failing to send a budget to congress before the deadline of September 15, 2008, (3) formulating the public consultation, which had been held illegal by the contentious-administrative court, (4) ignoring the Ministerio Pblicos notifications to the executive that the consultation was illegal, (5) firing General Romeo Vsquez without cause, an order which was reversed by the Supreme Court after an amparo had been filed, (6) commissioning the military to carry out the consultation or poll process even after the judicial decisions, and (7) publishing PCM-020-2009 on June 25, 2009, thus showing an intent to go forward with the poll. The Commission also noted that the executive had failed to adequately deal with the H1N1 flu, the reconstruction of areas affected by a recent earthquake, a financial crisis that had claimed
Michelleti sucede a Mel, LA TRIBUNA (June 29, 2009), available at http://www.latribuna.hn/2009/06/29/micheletti-sucede-a-%E2%80%9Cmel%E2%80%9D/. 44 Television interview, CNN en Espaol (June 29, 2009), http://www.youtube.com/watch?v=YBw9PW9cDE8&feature=related. 45 Television interview, CNN en Espaol (July 8, 2009), http://www.youtube.com/watch?v=dqA2HLbgoTU. 46 CSJ-1-11_26, Contestacion de participacion referente quienes participaron en la detencion Zelaya, at 56-58.
43

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100,000 jobs, the security situation in the country, and had had constant confrontations with the [courts]. 47 The Secretary of the Congress, Jose Alfredo Saavedra Paz, then read a supposed resignation letter from President Zelaya Rosales, which was dated June 25, 2009 and stated as follows: Given the political situation that has been presented, which has unleashed a national conflict that has eroded my political base, and given the insurmountable health problems that have made it impossible for me to concentrate on the fundamental questions of state, I comply with my duty of offering my irrevocable resignation from the office of President of the Republic, together with that of my cabinet, effective as of this date. With my resignation, I hope to contribute to the healing of the wounds in the national political environment. 48 Zelaya Rosales himself, in his remarks from Costa Rica, denied that he had signed any resignation later and stated that any purported letter was false. 49 The official record of the congressional session stated that the deputies accepted the resignation of Zelaya Rosales based on the letter 50; however in an interview with us, the Secretary of Congress, Jose Alfredo Saavedra Paz, stated that Congress actually archived the letter because of doubts about its authenticity (given Zelaya Rosaless remarks from Costa Rica), and that Congress did not rely upon it in any way. 51 The President of Congress, Roberto Micheletti, named a second Commission to draft a decree related to the resignation of President Zelaya Rosales. After a break in the session (of indeterminate length), Saavedra read the proposed decree, Decree 1412009, that had been drafted by this second Commission. The exposition of motives for the decree referred specifically to three acts, the firing of General Romeo Vsquez, the disobeying of judicial decisions, and the publication of Decree PCM-020-2009 on June 25, 2009, and stated that Zelaya Rosales had repeatedly violated the legal order of our country, putting at imminent risk the Rule of Law and the democratic system of government . 52 The explanatory part of the decree itself stated that the irregular actions of [Zelaya Rosales] were sufficient grounds for Congress to censure (reprobar) his conduct, independent of his resignation from the post for which he was elected, and that in conformity with Article 242 of the

CN-9, 30-Acta-30-28-06-2009, at 63-64. See id. at 64-65. 49 See Zelaya Rosales niega haber renunciado a Presidencia de Honduras, EL UNIVERSAL (Mexico) (June 28, 2009), available at http://www.eluniversal.com.mx/notas/607952.html. 50 See id. at 65. 51 Interview of Jose Alfredo Saavedra Paz, Leonidas Rosa Suazo and David Landau, Tegucigalpa, Honduras (January 13, 2011). 52 CN-9_5-28-06-2009-ProyectoDecreto (the full text of the decree, along with its exposition of motives, is found separately from the congressional record).
48

47

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Constitution, in the absolute absence of the President and Vice-President of the Republic, the executive power will be exercised by the President of the National Congress. Congress then decreed, based on authority allegedly given to Congress under Articles 1, 2, 3, 4, 5, 40 no. 4, 205 no. 20, 218 no. 3, 242, 321, 322, and 323 of the Honduran Constitution, three specific actions. First, Article 1 censured (improbar) the conduct of Zelaya Rosales for his repeated violations of the Constitution and laws and his failure to observe the resolutions and decisions of the judicial branch. Article 1 also separated [Zelaya Rosales] from his post as Constitutional President of the Republic of Honduras. Article 2 constitutionally promoted Roberto Micheletti Bain, current president of the National Congress, to the post of Constitutional President of the Republic for the remainder of the constitutional period that ends January 27, 2010. Finally, Article 3 stated that the decree would go into affect immediately if approved by twothirds of the members that make up the Congress. The congressional record states that Articles 1, 2, and 3 were approved unanimously, and the session was closed at 2:25 p.m. 53 Later, Roberto Micheletti assumed the position of President of Honduras. In his speech, he stated that I do not arrive at this position via the ignominious route of a coup detat, I arrive as the product of an absolutely legal transition. 54 C. Aftermath of June 28 1. Reactions of Institutions of State & Emergency Decrees Many institutions issued written or oral communications in the days immediately following June 28. The president of the Supreme Court, Jorge Rivera Avils, on television on July 3, stated that the removal of Zelaya Rosales was contemplated by our laws and followed the legal process. 55 Similarly, in a press release of June 28, 2009, the Supreme Court stated that the Supreme Court of Justice ratifies that the orders of the court have been executed and will continue to be executed within the parameters of the Constitution and the law. 56 The Congress issued a written communication on July 1, stating that Zelaya Rosales had breached Article 239 of the Constitution, and that Congress had removed him pursuant to his breach of that article. 57 The decree of June 28 had not mentioned Article 239.

CN-9_30-Acta-30-28-06-2009, at 67, 76. Michelleti sucede a Mel, LA TRIBUNA (June 29, 2009), available at http://www.latribuna.hn/2009/06/29/micheletti-sucede-a-%E2%80%9Cmel%E2%80%9D/. 55 Television interview, Globovision (July 3, 2009), http://www.youtube.com/watch?v=c06W6QJ9P1w. 56 Supreme Court Official Communique, (June 28, 2009), http://www.poderjudicial.gob.hn./general/noticias/comunicado_situacin. 57 Communiqu from Honduras Congress, National Congress (July 06, 2003) available at http://www.vernipubblicita.com/HONDURASFREE/Communiqu%C3%A9-from-Honduran-Congress.pdf.
54

53

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The new government also imposed a series of emergency measures, and emitted two emergency decrees restricting constitutional rights. On June 28, the new president Micheletti announced a curfew from 9 p.m. to 6 a.m. for 48 hours, although he issued no decree or other legal measure in conjunction with this action. On June 30, the president announced Executive Decree 011-2009, which applied a curfew between 10 p.m. until 5 a.m. for the next 72 hours, but which could be extended at the criteria of the executive branch. 58 The decree was based on Articles 187 and 188 of the Constitution, and stated that it was governed by the State of Siege Law. The decree restricted rights to personal freedom (Article 69), the right not to be detained incommunicado for more than 24 hours (Article 71), freedom of association (Article 78), and the right to circulate freely through the national territory (Article 81). It appears that the curfew continued uninterrupted until July 12, and was then re-imposed on July 15 until early August. Executive decree 011-2009 was also ratified by the congress as congressional decree 144-2009, which passed on July 8. 59 The government passed a new decree, PCM-M-016-2009, on September 22, although it was not published until September 26. 60 This immediately followed events in which Zelaya Rosales reentered the country and began staying at the Brazilian embassy. The decree restricted, for 45 days, constitutional rights under Articles 69 (personal freedom), 72 (freedom of the press), 78 (freedom of association), 81 (freedom of travel), and 84 (freedom not be detained without prior judicial order, except for criminals caught in flagrante delicto). The decree prohibited public meetings not authorized by the police or military. It also prohibited any media report, in any form, that offends human dignity, public functionaries, or is against the law, or government resolutions; or is in any way against peace and public order, and it authorized the state to suspend any television or radio station that did not follow the rule. Finally, it allowed the military and police to detain any person found outside during the curfew, or who was deemed suspicious by the authorities, and allowed such persons to be locked up for an undefined period. The decree was revoked on October 6, although the revocation was not published until October 19 as PCM-M-020-2009. There were amparos filed against both executive decrees, but according to the Inter-American Commission for Human Rights none of them was decided while the decrees were still in effect, and the Court appeared to adhere to a doctrine that made it impossible to attack these decrees via amparo once their effects has ceased. 61 The Inter-American Commission on Human Rights also alleged, in a report
Decreto Ejectivo No. 011-2009, available at http://www.laboralred.net/media_files/download/DECRETO_EJECUTIVO_No_011-2009[1].pdf. 59 The Congressional ratification of the decree, available at http://www.poderjudicial.gob.hn/juris/Otros/Restringir%20Temporalmente%20%20las%20Garantias%20C onstitucionales%20%2809%29.pdf (the ratification decree alluded to article 205 no. 23 of the Constitution, which gives Congress power to [R]atify, modify or disapprove the restriction or suspension that the Executive Power has decreed in accord with the law.). 60 PCM-M-016-2009, Decreto Ejectivo del gobierno golpista de facto, available at http://www.elboby.com/2009/09/decreto-ejecutivo-pcm-m-016-2009-del-gobierno-golpista-de-facto/. 61 See Inter-American Commission, Honduras: Human Rights and the Coup DEtat, OEA/Ser.L/V/II. Doc. 55 (December 30, 2009). For example, a number of amparos filed against PCM-M-016-2009 were
58

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filed on December 30, 2009, human rights abuses against supporters of Zelaya Rosales, including unlawful detentions and extra-legal executions. 62 New national elections were held on November 29, 2009. 2. Judicial Decisions The courts initially moved forward with the criminal trial against Zelaya Rosales. On June 29, 2009, the Supreme Court issued an order sending the complaint of June 26, 2009 against Zelaya Rosales, which was being tried before the Supreme Court itself, to an ordinary, first-instance criminal law judge in Tegucigalpa. 63 On July 2, 2009, the Court took the same order with respect to the complaint of June 25, 2009. 64 In this second order, the Court explained that Articles 414 and 416 of the Code of Criminal Procedure provided a special procedure for trying high officials of state, allowing these officials to be tried only before the Supreme Court. But since Zelaya Rosales was no longer such an official, the case against him should go forward via the ordinary process, and thus be sent to a first-instance criminal judge. Further, on June 30, 2009, the Court issued an order lifting secrecy on the case against Zelaya Rosales. The June 25/June 26 cases against Zelaya Rosales were dismissed on June 30, 2010, because of a decree of amnesty against specified crimes that was issued on February 2, 2010. 65 However, there are two (subsequently filed) fraud cases still active against Zelaya Rosales, since fraud was not covered by the amnesty. Both deal with an unrelated financial matter misuse or theft of funds in the Honduran Social Investment Fund. On January 6, 2010, the Ministerio Pblico filed a complaint against six members of the Armed Forces General Romeo Vsquez (the chief of the Estado Mayor Conjunto), the heads of the three branches of the military, and two other members of the military high command. The complaint alleged that they all committed the crime of abuse of authority by ordering that Zelaya Rosales be carried out of the country to Costa Rica. The theory is an official commits abuse of authority by dictating or carrying out any order contrary to the Constitution or the laws, or by failing to obey a lawful order. Further, the actions of the military both violated Article 102 of the Constitution, which states that no Honduran may be expatriated or sent by the authorities to a foreign state, and violated the lawful arrest warrant issued by the judicial branch. 66 These cases
dismissed once the decree had been revoked, on the grounds that the legal effect of the decree had ceased. See Corte Suprema de Justicia, Sala de lo Constitucional, Informe: Recursos de Amparo Directamente Relacionados a Eventos Acaecidos a Partir del 28/06/09, at 16-24. 62 See Inter-American Commission, supra note 61. 63 CSJ-1-7_4, Remision del expendiente de la CSJ al Juzgado de Letra Penal. 64 CSJ-1-7_5, Requerimiento Contra Jose Manuel Zelaya Rosales y otros, at 100-03. 65 See Programa de Derechos Humanos, Poder Judicial, Informe: Registro y Seguimiento de Procesos Penales, a Nivel Nacional, Relacionados con los Hechos Acaecidos Antes, Durante, y Despues del 28 de Junio de 2009, [Report regarding the Status of the Habeas Corpus, Amparo, and Unconstitutionality Actions related to the Events during and after June 28, 2009] at 4 (December 2010). 66 CSJ-1-11_2, Presentacion del requerimiento Fiscal y otros.

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were brought before the Supreme Court because the accused were considered high state officials. The defense of these military officers was that they had broken the legal order and disobeyed a judicial order in order to avoid a greater evil the death of Hondurans and foreigners. 67 On January 21, 2010, the natural judge selected by the Supreme Court dismissed the complaint, and this order was affirmed, 2-1, by a Court of Appeals selected by the Supreme Court on February 18. The majority of the Court of Appeals held that the defendants lacked the requisite criminal intent and that the defendants acted under a state of necessity because they were attempting to save the lives of others. 68 This decision has been appealed by the Ministerio Pblico, via an amparo filed on April 23, 2010, but the amparo has not yet been definitively decided. 69 Finally, there are also a series of amparo and unconstitutionality actions filed by citizens against the decree issued by the Congress and against the actions of the military on June 28. Most of these actions appear to be either pending or were declared inadmissible for reasons for form lacking of standing, unclear formulation of the complaint, etc by the Court. However, some appear to have been resolved and denied on the merits for example, amparo case 890-09, brought against the Congress, military, and administrative judge, was denied on the merits on March 9, 2010. 70 The courts have also heard a number of actions for habeas corpus and amparo based on alleged human rights abuses particularly unlawful detention and excessive force in the months after June 28. 71

IV. Legal Analysis

A. Legal Analysis of the Proposed Consultation or Poll Held by Zelaya Rosales 1. Factual Summary In November 2008, President Zelaya Rosales first raised the idea of having a plebiscite, simultaneous with the three other elections of 2009 (for president, congress, and local officials), in order to determine whether to call a Constituent Assembly in 2010. On November 21, he stated that

67

CSJ-1-11_26, Contestacion de participacion referente quienes participaron en la detencion Zelaya, at

57. CSJ-1-11_57, Resolucin de Corte de Apelaciones designada por la CSJ, 18-02-10, otros, at 17-19. CSJ-1-11_60, Accion de Amparo ante Sala Constitucional de la CSJ por el Ministerio Pblico, at 16. 70 See Corte Suprema de Justicia, Sala de lo Constitucional, Informe: Recursos de Amparo Directamente Relacionados a Eventos Acaecidos a Partir del 28/06/09, at 3 (January 13, 2011). 71 See generally Corte Suprema de Justicia, Sala de lo Constitucional, Informe Pertinente al Estado de las Acciones de Habeas Corpus, Amparos, y Inconstitucionalidades Relacionadas con los Eventos Acaecidos a Partir del 28 de Junio de 2009 [Report regarding the Status of the Habeas Corpus, Amparo, and Unconstitutionality Actions related to the Events during and after June 28, 2009] (December 2010).
69 68

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I am going to govern for four years. But I think that yes it is necessary to begin a dialogue with the political forces of the country about the necessity of a convocation, parallel to the next electoral process, about a plebiscite, without interrupting the electoral process . We are going to fight for the yes, others will fight for the no, and a plebiscite will decide whether we convoke a National Constituent Assembly without interrupting the electoral process and that in 2010 we can put forward this free exercise of democracy. 72 On March 23, 2009, the government issued a proposed decree (which was never officially published), Decree PCM-005-2009, ordering a public consultation to be held at the latest on June 28, 2009. 73 The text of the decree read as follows: Article 1: To realize in conformity with the law, a broad popular consultation in the entire national territory, so that the Honduran citizenry can freely express, their agreement or no, with the convocation of a National Constituent Assembly, that will dictate and approve a new Political Constitution. Article 2: The Consultation will be in the charge of the National Institute of Statistics (INE), as the organ charged with the production of trustworthy and opportune statistics, necessary for the permanent knowledge of the national reality, National Planning and the efficient management of public sector decision-making, for which it can execute and organize the generation of data. The consultation must occur, at the latest, on the last Sunday of the month of June in the year 2009 and will ask the following question: Are you in agreement that, in the general elections of November 2009, a Fourth Urn be installed to decide on the convoking of a National Constituent Assembly to approve a new constitution? All the institutions and organs of the Executive Power have the obligation to give opportune and adequate collaboration to the INE, for compliance with this task. Additionally, the organized Civil Society is convoked so that they may participate and guard the legitimacy and transparency of this popular consultation.
Manuel Zelaya Rosales pronone asamblea constituyente, EL HERALDO (Nov. 21, 2008), available at http://www.heraldohn.com/index.php/content/view/full/46876. Manuel Zelaya Rosales made a similar statement on February 17, 2009: he was going to propose a Fourth Urn, but it would not prolong his presidency even a day more. See Marilyn Mendez, Honduras: The Illegal Route of the Fourth Urn, LA PRENSA (June 27, 2009) available at http://www.laprensa.hn/Apertura/Ediciones/2009/06/27/Noticias/Honduras-La-ruta-ilegal-de-la-CuartaUrna. Others in government took a different view; for example, Rafael Pineda Ponce, an ex presidential candidate for the Liberal Party, stated on January 17, 2009 that President Zelaya Rosales is promoting an environment of destabilization in order to remain in power. Buscan crear vacio de poder en Honduras, EL HERALDO (Jan. 17, 2009), available at http://www.proceso.hn/2009/1/17/Buscan-crear-vacio-de-poderen-Honduras. 73 CSJ-1-2_3, Documentos que acompanan la demanda, at 19-21.
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Article 3: The positive result of this popular consultation will serve as a legitimate basis for the Executive to send to the National Congress a special legal project to place the 4th urn on the ballot in the general elections of November 2009 Article 4: The present decree is of immediate execution and must be published in the official publication the Gazette. 74 On May 8, 2009, two lawyers in the Ministerio Pblico (or Prosecutors Office), and acting on behalf of that office, filed an action in front of the ContentiousAdministrative Court, both asking that court to suspend the popular consultation called for in PCM-005-2009 as an interim measure and to nullify the decree as both illegal and unconstitutional. 75 The demand argued that any popular consultation should, under Article 51 of the Constitution, be supervised by the Supreme Electoral Court and not by the Institute of Statistics, that it constituted a plebiscite or referendum under Article 5 of the Constitution, but did not follow the prerequisites (such as prior congressional approval) spelled out in that article. The demand argued finally that Zelaya Rosales, by using a consultation to call a Constituent Assembly that would write a new constitution, was using the mechanism to reform the petrified articles listed under Article 374 of the Constitution, which could not be reformed under any circumstances. On May 13, 2009, the Court ordered a separate piece on the question of whether PCM-005-2009 should be preliminarily suspended pending full resolution of the issue. The Procurador (or Attorney General), Rosa Amrica Miranda de Galo, who is legally charged with defending the law, made a filing on May 20, 2009. 76 In her filing, she expressed no view on the ultimate merits question of the legality of the decree. On the question of the preliminary suspension of the decree, she stated: For the reasons stated above, it is evident ... that the injunction could provide the most adequate circumstances for this tribunal to resolve the legal situation ; in this regard, Article 121 of the Law of the Contentious-Administrative Jurisdiction stipulates that injunctions may be granted when the execution of the actions claimed may cause damages or prejudice impossible or difficult to repair; in this sense, it is solicited that the Judge determine the corresponding Interlocutory Sentence, according to what proceeds from the law. 77 In an order dated May 25, 2009, the Administrative Court denied Zelaya Rosaless lawyers, along with others, the right to intervene in the suit (as coadyuvante), arguing that they would only have such a right if their arguments harmonized with the
74 75

Id. at 20-21. CSJ-1-2_2, Demanda Ordinaria 151-09, at 1-2. 76 CSJ-1-4_5, Personamiento de Rosa Miranda en representacin legal del Estado, at 15. The Procuradura would subsequently file, after receiving the permission of the executive, a formal allanamiento that accepted the charges laid against the decree and that therefore asked the Court to nullify the decree on the merits. However, such a decree was not filed until August 14, 2010. 77 Id. at 17.

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argument of the Procuradura, and in this case they were trying to make independent arguments. 78 On May 22, 2009, the Supreme Electoral Tribunal issued an order to the Director of the National Institute of Statistics, Sergio Sanchez, to appear before the Tribunal and explain the actions of that agency in connection with the June 28 consultation. After the meeting, Sanchez stated that no poll was binding and that: There is not a published Decree. We are going to begin to work in the moment in which there is an Executive Decree following the law and we are going to comply with it. Consultations of an electoral nature correspond to the Electoral Tribunal; the National Institute of Statistics carries out polls and censuses. 79 On May 22, the Supreme Electoral Tribunal issued an order to the press to stop running any publicity for the June 28 consultation by May 26, and also announced that it had opened an investigation into whether the organizers of the consultation had committed any electoral crimes in carrying it out. 80 Zelaya Rosales did not stop running the advertisements and other publicity for his consultation. 81 On May 26, 2009, after a meeting of his Council of Ministers, Zelaya Rosales issued (but at this point did not publish) a new decree, PCM-019-2009, voiding PCM-052009. He also issued (but at this point did not publish) a new decree (PCM-020-2009), which would be essentially identical to the old decree, but which would call the questioning on June 28 a national opinion poll rather than a popular consultation.82 The text of PCM-020-2009 is as follows: Article 1: Order the execution, in conformity with the law, of a National Opinion Poll that will be carried out Sunday, June 28 of this year and will ask the following question: Are you in agreement that, in the general elections of November 2009, a Fourth Urn be installed to decide on the convoking of a National Constituent Assembly to approve a new constitution? Article 2: All dependencies and organs of the Public Administration: Secretaries of State, Decentralized and Deconcentrated Institutions, are instructed to incorporate and execute actively all of the tasks assigned for
CSJ-1-2_22, Resolucin un de Rechazar de plano improcedentes todos los personamientos que anteceden y las defensas previas, at 349-50. 79 INE admite ante el TSE que no organiza encuesta, EL HERALDO (May 21, 2009), available at http://www.elheraldo.hn/content/view/full/132728. 80 TSE ordena retirar publicidad de la 4ta. urna, LA PRENSA (May 22, 2009) available at http://www.laprensahn.com/Apertura/Ediciones/2009/05/22/Noticias/TSE-ordena-retirar-publicidad-de-la4ta.-urna. 81 Consulta sobre la cuatra urna no la para ni Kaliman, dice Mel Zelaya Rosales, PROCESO DIGITAL (May 22, 2009), available at http://www.proceso.hn/2009/05/22/Politica/Consulta.sobre.la/13596.html. 82 CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros, at 69-70. This press conference is part of the record of the criminal case against Zelaya Rosales.
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the realization of the denominated project: National Opinion Poll for the Convocation of a National Constituent Assembly, which constitutes an official activity of the Government of the Republic. Article 3: This National Opinion Poll will be realized under the technical coordination of the National Institute of Statistics (INE), the organ charged with the production of trustworthy and opportune statistics, necessary for the permanent knowledge of national reality, the planning of development and the efficient management in the making of decisions in the Public Sector. Article 4: The Directive Council as the Superior Organ of the INE, in accord with Article 8 number 1 of the Law of the National Institute of Statistics (INE), will supervise the effective execution of the National Opinion Poll for the Convocation of a National Constituent Assembly. The Secretary of State in the Presidential Dispatch, in his condition as President of the Directive Council of the INE, will be the functionary charged with informing the results of the Opinion Poll. Article 5: This Decree is of immediate execution and will be published in the official publication, La Gaceta. 83 The Court, in an interlocutory decision dated May 27, 2009, accepted the arguments of the Ministerio Pblico and suspended PCM-05-2009 (essentially issuing a preliminary injunction against it), as well as any publicity in connection with the consultation scheduled for June 28. 84 The order, in relevant part, read: First: Declare founded the present incidental question of Suspension of the Impugned Act, solicited by the [petitioner]. Second: In consequence, all of the effects of the tacit administrative order with general character that Executive Decree PCM-05-2009 of March 23, 2009 contains, are suspended, as are any type of publicity about what is established in the [order]; in the same manner [is decreed] the suspension of the consulting procedure of the citizens by the Executive Power through the Constitutional President of the Republic, or any of the institutions that compose the administrative structure of the Executive Power. 85 On May 29, 2009, the court issued a clarification of its ruling. The Court stated that it issued this clarification at the request of the Ministerio Pblico. The clarification read as follows: Clarify: The Interlocutory Sentence of May 27, 2009 in the sense that the effects of the suspension ordered, of the tacit act of a general character that contains Executive Decree PCM-05-2009 of date March 23, 2009, includes any other administrative act, general or particular, that has been emitted or not, express or tacit, published or unpublished in the official
83 84

Id. at 70. CSJ-1-4_7, Sentencia Interlocutoria y notificaciones, at 23. 85 Id.

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publication La Gaceta, that carries the same end as the tacit administrative act that has been suspended, as well as any change in name in the consultation or questioning procedure, which implies an evasion of compliance with the interlocutory decision that is being clarified. 86 The Procuradura declined to file any appeal on behalf of the executive branch. Zelaya Rosales filed a constitutional action called an amparo both against the decision and its clarification. These amparos were denied both by the Court of Appeals and by the Supreme Court. Both Courts held that Zelaya Rosales had no standing to file any sort of appeal, since the suit was against the State of Honduras, and the Procuradura was its legal representative and had chosen not to appeal. The decision of the Court of Appeals was made on June 16; the decision of the Supreme Court was not formally made until July 23, after Zelaya Rosales had been removed as president. 87 The Administrative Court would subsequently issue two communications to Zelaya Rosaless office. The first, on June 3, ordered him to adopt necessary measures to carry out the order. 88 The second, on June 18, ordered him to stop carrying out acts that evaded the decision. 89 The third, also issued on June 18, ordered him to report on compliance with the decision within five days. 90 Zelaya Rosales on May 29 held a meeting of his cabinet on national television, where he asked his Secretary of Defense (Edmundo Orellana Mercado) to read Executive Accord 027-2009. He also appeared together with General Romeo Vsquez, the chief of the Estado Mayor Conjunto, the governing body of the armed forces. The Executive Accord, for the first time, ordered the military to support the Institute in carrying out the poll. 91 This Accord was also never published. The text of the Executive Accord is as follows: Article 1: To order the Armed Forces of Honduras in all of its branches to support the National Institute of Statistics in the realization of the national opinion poll approved in a meeting of the Council of Ministers, putting at its disposition its logistical means and other necessary resources.

86 CSJ-1-4_10, Aclaracion del Juzgado de la Sentencia Interlocutoria Y notificaciones, at 29. The administrative court did not issue a final order on this decree until September 28, 2009, well after Zelaya Rosales had been removed from the country. CSJ-1-2_34, Fallo de declarer procedente la acion incoada por Gelmer Humberto Cruz y Henry Salgado Nunez. This final order declared decree PCM-05-2009 null. The judge agreed with all of the arguments raised by the Ministerio Pblico, and added that there was only one way to amend the constitution 2/3s approval of Congress under article 373. Since Zelaya Rosaless decree did not follow this procedure, it was void for this additional reason as well. 87 CSJ-1-3_8, Inadmisibilidad del Recurso de Amparo (Court of Appeals), at 16; CSJ-1-5_11 Resolucion Sala de lo Constitucional declarando inadmisible el Recurso de Amparo (Supreme Court), at 23. 88 CSJ-1-6_13, Comunicacin Judicial al Secretario de Estado en el Despacho de Seguridad. 89 CSJ-1-6_20, Comunicacin Judicial al Secretario de Estado en el Despacho de Finanzas. 90 CSJ-1-6_10, Comunicacin Judicial al Secretario de Estado en el Despacho de la Presidencia. 91 CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros, at 74. The televised meeting is published along with the complaint against Zelaya Rosales (dated June 25, 2009).

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Article 2: The present Executive accord will enter into effect after this date and must be published in the Official publication La Gaceta. 92 Several other executive officials also spoke at the meeting about the poll and noted that the government would be logistically ready to have 15,000 polling places open on election day and had technology in place so people could quickly learn the results. Finally, the presidents Minister of the Presidency, Enrique Flores Lanza, stated that the opinion poll was absolutely legal under the Constitution, Law of Citizen Participation, the Law of the National Statistics Institute, and international treaties signed and ratified by Honduras. Flores also noted that the current accord had absolutely nothing to do with the demand before the Administrative Law Judge against a tacit act that called for a national consultation [because] all of the decisions adopted in that process cannot be applied with respect to this new proceeding for a national opinion poll, which is absolutely legal. The chief of the Estado Mayor Conjunto, General Romeo Orlando Vsquez, was present at the meeting and sat next to Zelaya Rosales. He stated that because the armed forces are an apolitical and obedient institution, we have to obey the order within the margins of the law. 93 That same day, Zelaya Rosales reportedly said: Now they have to arrest the General. 94 On June 3, Congress passed a resolution disapproving of Zelaya Rosaless conduct and stating that he had disobeyed a judicial order and issued an arbitrary command to the armed forces to support the National Institute of Statistics in the execution of an illegal poll. 95 On June 18, the Contentious-Administrative Court sent a communication to General Romeo Vsquez, ordering him to abstain from actions that would lead to the implementation of the consultation or poll on June 28. 96 On June 24, the military sent a memo to the administrative court stating that it would comply with the courts order. On June 24, Zelaya Rosales read a document on national television in which he fired General Romeo Orlando Vsquez from his office as Chief of the Estado Mayor Conjunto and accepted the resignation of the Minister of Defense, Edmundo Orellana Mercado. The commanders of the three branches of the military also resigned on that day. On June 25, 2009, General Vsquez filed a writ of amparo against his removal from office. He argued that Article 40 of the Constitutive Law of the Armed Forces only allowed him to be removed from office for certain specified reasons, and that he had not

Id. Las FF AA estaran cometiendo ilegalidad, LA PRENSA (May 30, 2009), available at http://www.laprensahn.com/content/view/full/213613/. 94 Ahora tienen que capturar al General desafa el presidente Zelaya Rosales, PROCESO DIGITAL (May 29, 2009), available at http://www.proceso.hn/2009/05/29/Nacionales/E.CAhora.tienen/13725.html. 95 El Congreso imprueba la conducta del Ejecutivo, EL HERALDO (June 4, 2009), available at http://www.elheraldo.hn/Ediciones/2009/06/04/Noticias/El-Congreso-imprueba-la-conducta-del-Ejecutivo. 96 C-1-6_37, Comunicacion Judicial al Jefe del Estado Mayor Conjunto.
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been removed for one of those stated reasons. 97 He also argued that he was entitled to a right to defense under Article 82 of the Constitution, which had not been given him, and that under Article 323 of the Constitution, he could not carry out illegal orders. 98 That day, the Constitutional Chamber of the Supreme Court issued an order provisionally suspending the removal as unconstitutional. 99 The Court would eventually rule on the merits on March 9, 2010, finding that the removal was indeed unconstitutional and unanimously reinstating the General to his post. 100 Also on June 25, the Supreme Electoral Tribunal issued an order calling the proposed poll illegal and denouncing the events before the Ministerio Pblico. Further, the Supreme Electoral Tribunal ordered the armed forces to abstain from carrying out the poll. 101 The next day, the Supreme Electoral Tribunal issued an order to the Ministerio Pblico to seize all materials related to the poll. 102 Congress also held a session on June 25, in which it formed a commission to investigate the actions of President Zelaya Rosales and to approve or disapprove the conduct of his administration. 103 Finally, on June 25, 2009, President Zelaya Rosales published both PCM-0192009, which rescinded the still unpublished PCM-05-2009, and PCM-020-2009, which called for the opinion poll to be held on June 28, in La Gaceta. 104 He also led a band of followers to the Acosta Mejia Air Force base, where the confiscated poll materials had been deposited by the Prosecutors Office. Once there, Zelaya Rosales and his followers removed 814 boxes of material the ballots and ballot-boxes needed for the poll that was to be held on June 28. 105 After taking these materials, Zelaya Rosales stated: I told [the commander of the base] that I should be recognized as Chief of the Armed Forces, and that I wanted the ballot-boxes so that I could carry them away. 106
Article 40 of the law states that the Chief of the Estado Mayor Conjunto would be named by the president, would have a term of three years, and could only be removed for the following reasons: (1) Resignation, (2) Absolute incapacity duly accredited, (3) Removal from the post by signed judicial decision, (4) Loss or suspension of citizenship decreed by a competent authority in accord with law, and by ending his time of active service in the military. 98 CSJ-1-13_2-SCO-881-2009, Recurso de Amparo por Mauricio Mazariegos, a favor de Romeo Vasquez, at 2. 99 CSJ-1-13_4, Providencia de CSJ en nombre del Estado, acumulando Amaparos a favor de Romeo V y otros, at 10. 100 CSJ-1-13_28, Resolucion de CSJ, Sala de lo Constitucional, Notificacion, at 52. 101 CSJ-1-11_17, Copias debidamente autenticadas del Tribunal Supremo Electoral, at 3-4. 102 Id. at 5. 103 CN-9_30-Acta-30-25-06-2009-a. This is Act 30 of June 25, 2009. 104 PCM-020-2009 stated the following legal grounds as support for the decree: articles 1, 2, and 245 nos. 1-2 of the Constitution, articles 1, 3 no. 4, and 5 no. 1 of the Law of Citizen Participation, articles 1, 4 no. 1, 5 no. 3, and 12 of the Law of the National Institute of Statistics, article 2 final paragraph of the Regulation of the Law of the National Institute of Statistics, articles 11, 17, 19, 20, 22 nos. 9 & 10 of the General Law of Public Administration, Articles 10 and 11 of the Regulation of the Organization, Functioning, and Competences of the Executive Power, article 19 of the International Covenant on Civil and Political Rights, and article 6 of the Inter-American Democratic Charter. See CSJ-1-11_16, Informes de Instituciones del Estado emitiendo opinion sobre restitucion o no de Manuel Zelaya, at 94. 105 CSJ-1-7_5, Requerimiento contra Jose Manuel Zelaya Rosales y otros. Also found in the complaint against Zelaya Rosales. 106 Mel empieza a quedarse sin respaldo, EL HERALDO (June 26, 2009), available at http://www.elheraldo.hn/layout/set/print/content/view/print/156725.
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2. Legal Arguments a. Positions Against Zelaya Rosaless Decrees Those actors who argue that President Zelaya Rosaless proposed decrees are illegal argue first that these decrees had no basis in law. They state that the National Institute of Statistics, in the Constitutive Law of the National Institute of Statistics, is not authorized to supervise a nationwide poll or consultation of this magnitude. Moreover, they state that the military had no legal authority to supervise a consultation of this nature. According to Article 272 of the Constitution, during elections the military in involved in safeguarding electoral materials and other aspects of security of the process, and is therefore placed under the authority of the Supreme Electoral Tribunal during these periods. However, this event was not an election, and the Supreme Electoral Tribunal was not involved in supervising the process. Finally, they state that the president had no authority to decree a consultation or poll of this nature, and that the citizens initiative device found in the Law of Popular Participation provides no support for such a power. Those opposed to the decrees also argue that they were unconstitutional. One constitutional argument is that the president violated the Constitution by failing to follow the procedures laid out in Article 5 of the Constitution, which regulates two popular participation devices, the plebiscite and the referendum. For example, both types of devices must receive approval by two-thirds of congress before being submitted to the voters, a step that was not taken in this case. Further, both the plebiscite and referendum must be supervised by the Supreme Electoral Tribunal. Another constitutional argument is that the decrees violated Articles 373, 374, and 239 of the Constitution. Article 373 provides a procedure for constitutional amendment amendments must be approved by two-thirds of all members of Congress in two different legislative sessions. Article 374 provides that certain articles cannot be amended under any circumstances. In particular, the Constitution refers to Articles 373 and 374 as being unamendable, as well as the articles referring to the form of government, the national territory, the presidential term, the prohibition on newly being elected president of the republic, the citizen who has held [the presidency] under whatever title, and the reference to [which high officials] cannot be president in the subsequent term. Finally, Article 239 of the Constitution provides that any citizen who has served as [president] cannot again be president or presidential designate, and states that he who breaks this disposition or proposes its reform, along with those who support him directly or indirectly, will cease immediately in their respective posts, and are prohibited from holding any public function for ten years. The argument of those opposed to the decrees is that by moving towards a Constituent Assembly, President Zelaya Rosales was seeking to undermine the exclusive method of constitutional amendment laid out in Article 373 and to alter the unamendable articles under Article 374. By moving towards a Constituent Assembly in order to write a 30

new Constitution, Zelaya Rosales propose[d] [the] reform of the constitutional article forbidding presidential reelection, and therefore violated Article 239. Finally, those opposed to the reform argue that Zelaya Rosaless continuing to move forward with the proposed consultation or poll after the contentiousadministrative court decision and its clarification, as well as his issuance of PCM-0202009 and Executive Accord 027 of 2009, were illegal because they were in violation of a valid court order. The initial decision voided decree PCM-005-2009, and the subsequent clarification ordered Zelaya Rosales not to move forward with any decree aimed at the same end. b. Positions in Favor of Zelaya Rosaless Decrees Those who supported Zelaya Rosaless decrees argued first that the decrees were supported by law. The Law of Popular Participation, in Article 5, creates a device called a citizens initiative. This device allows for the heads of public organs or agencies of whichever state power to convoke the citizenry in general, the members of a municipality, of a neighborhood or town, of a profession, sector, or organized social group, so that they emit opinions and formulate proposals on collective problems that affect them. The results will not be binding but yes relevant elements for the exercise of the functions of the convoking power. Those who argue that the poll or consultation was legal point to this provision as the basis for Zelaya Rosaless decrees. Moreover, they argue that the use of the National Institute of Statistics to manage the consultation or poll was not illegal. According to the constitutive law of this organization, it is charged with collecting and analyzing data for use in public policy nationwide. It would be unsuited to supervise an election, but can properly play a role in a non-binding consultation or poll aimed at collecting public opinion data. Further, these actors argue that the decrees did not violate Articles 373, 374, or 239 of the Constitution. Since the consultation or poll would have no binding effect on the legal order, and since President Zelaya Rosales did not state that his intent in seeking a Constituent Assembly was to alter the no-reelection rule, the decrees did not constitute a propose[al] [to] reform the Constitutions rule barring reelection. Also, they point to Article 2s command that sovereignty corresponds to the people, from which emanates all the powers of the State that it exercises through representation. Because of this article, they argue that the constitutional amendment procedures specified in Articles 373 and 374 do not deprive the people of their power to write a new constitution. The decrees were aimed at exercising the peoples power to write a new constitution. Finally, they argue President Zelaya Rosales did not violate the Constitution or laws by disobeying the administrative court orders, because those orders were illegal. They state that initial case should not have been brought because the proposed decree, PCM-005-2009, had not yet been published, and the administrative action of nullification 31

proceeds only against published decrees. The clarification issued by the judge was illegal because the judge has the power only to judge the decree placed in front of him by the lawsuit, and could not strike down other decrees. The Procuradors pleading declining to defend the decree was also illegal. She is charged with defending state actions, and is allowed to issue a plea of no contest (allanarse a la demanda) only after gaining the express permission of the executive (Article 24 of the Law of the Administrative-Contentious Jurisdiction). The refusal to allow President Zelaya Rosales or his attorneys to intervene in the case, to file appeals, or to file amparos was illegal. He had a sufficient interest in the case to be allowed to intervene in it and file appeals or amparos from the judicial orders. 3. Assessment PCM-005-2009, publicized on March 24, 2009 but never published, called for a consultation, to be held on June 30, 2009, on the question of whether a constituent assembly should be called to rewrite the Honduran Constitution. Designated polling places would be set up around the country for people to vote yes or no to this question, and the process would be placed under the control of the National Institute of Statistics. PCM-020-2009, publicized on May 26, 2009 and published on June 25, 2009, replaced the word consultation with the word poll, but otherwise repeated the steps laid out in PCM-05-2009. Accord 027-2009, publicized on May 29, 2009 and never published, repeated the language of PCM-020-2009 and also ordered the Armed Forces to support the National Institute of Statistics in carrying out the poll. The decrees and the accord stated that the results of the consultation or poll would serve as a legitimate basis for the presentation of a law in Congress convoking a Constituent Assembly. a. The Procedures for the Consultation or Poll: The Use of the National Institute of Statistics and the Military We conclude that the use of the National Institute of Statistics for the purposes envisioned in these decrees was illegal under Honduran law. The National Institute of Statistics has as its purpose coordinating the National Statistics System [and] ensuring that official statistical activities are carried out in an integrated, coordinated, and rational form, and under a common set of norms. 107 This body is charged with technical tasks related to government statistics. It is tasked with conducting the census, collecting, organizing, and analyzing data collected by the Institute and by other organs of the state, and lending technical support to other government entities related to data management. 108
Ley del Instituto Nacional de Estadistica [Law of the National Institute of Statistics], Decree 862000 art. 2., June 19, 2000 (Hond.). 108 See id. art. 5, which defines the functions of the National Institute of Statistics as follows: 1) To formulate and execute the policies, programs, and the National Plan of Statistics, for the short, medium, and long term, as well as to evaluate the secretarial, regional, departmental, municipal and institutional programs, in coordination with the units and offices of statistics that make up the system, 2) To organize the calling of the national census, 3) To execute and coordinate the generation of data via statistical investigations and thus use of databases in the public sector,
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Nothing in the statute gives the National Institute of Statistics any functions for regulating a nationwide, in-person vote. The Institute lacked the expertise to monitor polling places and ensure the impartiality of the voting process. It lacked the legal power to supervise the consultation or poll. Article 51 of the Constitution creates a Supreme Electoral Tribunal and charges it with everything related to electoral acts and proceedings. Under Article 5 of the Constitution, this institution is also charged with supervising the referenda and plebiscites carried out according to law. Finally, according to Article 15 of the Law of Politics and Political Organizations, the Supreme Electoral Tribunal is charged with creating the list of registered voters based on an electoral census, safeguarding electoral materials, supervising elections, verifying their results, and hearing certain legal complaints brought against the legality of voting or electoral processes. 109 That law also creates Municipal and Departmental Electoral Tribunals under the authority of the Supreme Electoral Tribunal in order to supervise elections at the local level. It also creates Electoral

4) To regulate the methods, procedures, and techniques used by the organs of the National Statistics System, 5) To execute and coordinate the production of basic statistics for the elaboration of systems of national accounts, monetary, fiscal, balance of payments, joint production indexes, employment, salaries, and prices, 6) To develop investigations aimed at the measurement of the principle socio-economic and demographic variables in the country, 7) To establish norms and national standards for the regulation, compatibility, and comparability of the systems for treatment of information, 8) To recommend and promote the norms and standards for the implementation of systems of information communication, 9) To hold conferences related to the offering of technical, financial, national and international assistance on the topic of statistics., 10) To ensure that the data or individual reports administered for statistical endsare managed under principles of confidentiality and reserve, 11) To systematize, maintain, consolidate, and divulge the statistical information available in databases and communication networks, 12) To establish channels of communication and consultation between producers and users, with the goal of complying with the minimal information necessities of the country, 13) To apply sanctions to natural or legal persons who commit infractions under this law or its regulations, 14) To contract with public and private entities, national and international, for the execution of activities of the National Institute of Statistics, 15) To lend paid service for technical assistance, investigations, and other tasks related to its ends, and, 16) Other tasks assigned in conformity with this Law. 109 Article 15 reads in relevant part as follows: The attributions of the Supreme Electoral Tribunal are as follows: 5. To organize, direct, administer, and safeguard electoral processes; 6. To elaborate, purge, and publish the Electoral Census; 10. To receive, safeguard, and verify the documentation and electoral material utilized in electoral processes; 11. To divulge preliminary results based on scrutiny; 12. To carry out the definitive scrutiny [of electoral processes] ; 15. To hear and resolve (a) the partial or total nullification of votes and declarations of elections; (b) Complaints, denunciations, or irregularities in electoral processes .

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Receiving Boards in each voting center in order to ensure the fairness of voting in each center and to report results to the Supreme Electoral Tribunal. 110 The system set up to supervise elections in both the Constitution and Law of Politics and Political Organizations helps to ensure that the electoral process is fair and transparent. That system was not utilized or referenced in PCM-005-2009 or PCM-0202009. The consultation or poll set out in those decrees would have no binding legal effect. But it was intended to have a political effect and to serve as the start of a process that would have ended with a Constituent Assembly drafting a new constitution. Any such process would have to follow requirements in order to represent the sovereignty of the Honduran people. One requirement is that every step in the process be conducted fairly and transparently. Fairness and transparency could not be assured without the involvement of the mechanisms designed for that end. Further, Executive Accord 027-2009 violated statutory and constitutional norms related to the use of the military. Executive Accord 027-2009 ordered the military to support the National Institute of Statistics in carrying out the poll ordered in the decree. The military is constituted, according to the Constitution, as a national institution of permanent character, essentially professional, apolitical, obedient and nondeliberative. 111 The military is supposed to be an essentially apolitical body and not treated as an instrument for the political ends of some actors of state against others. Article 272 also states: For purposes of guaranteeing the free exercise of the vote, the custody, transport, and safeguarding of the electoral materials and other aspects of the security of the process, the President of the Republic will place the Armed Forces at the disposition of the Supreme Electoral Tribunal from a month before the election until the declaration of them. Thus the military is charged with guaranteeing the free exercise of the vote, but this task is to be performed in a certain way by holding, transporting, and safeguarding electoral materials under the authority of the Supreme Electoral Tribunal. The step of placing the military under the authority of the Supreme Electoral Tribunal, which is an independent body, is essential to ensure that elections are fair and transparent. Properly supervised by the Supreme Electoral Tribunal, the military can act as an impartial guarantee for the security of elections. The president misused the militarys attribution to guarantee the free exercise of the vote when he ordered the military to oversee this poll without placing it under the supervision of an independent body. Further, he violated the constitutional norm demanding that the military be treated as apolitical. As stated in the facts, Zelaya Rosaless initial decree, PCM-005-2009, did not express any role for the military in carrying out the consultation. But Accord 027-2009, which was issued on May 29, after PCM-005-2009 had been struck down by the Administrative Court and after other institutions of state and political actors had made known their opposition to the law,
See id. arts. 19-40. CONST. HOND., art. 272; see also Ley Constitutiva de las Fuerzas Armadas [Constitutive law of the Armed Forces], Decree 98-1984, art. 1, July 12, 1984 (Hond.) (reiterating that the Armed Forces are essentially professional, apolitical, obedient and non-deliberative).
111 110

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ordered the military to support the poll. Moreover, after General Romeo Vsquez on May 29 stated publically that he would support the project, Zelaya Rosales reportedly said, referring perhaps to his political opponents or the courts, now they will have to arrest the general. By utilizing the military as part of a contested political project, Zelaya Rosales raised the specter of the military being used as a cudgel or threat against other institutions of state, rather than as an impartial safeguard of the electoral process. b. Legal Authority for the Consultation or Poll We also conclude that the executive decrees and accord calling for a consultation or poll were likely unauthorized by law. According to Article 245, section 10 of the Constitution, the president has the power to emit accords and decrees, and dispatch regulations and resolutions conforming to law. In other words, the executive can issue decrees, accords, regulations, or resolutions only if the Constitution or a law passed by congress gives him the power to do so. Here the president had no constitutional or legal authority to issue decree PCM-005-2009, decree PCM-020-2009, or accord 027-2009. Article 5 defines and regulates two devices of popular participation, the referendum and the plebiscite. The referendum is defined as a device whereby the public ratifies or disapproves a law or constitutional amendment already approved by Congress. The plebiscite is defined as a device whereby the public votes on a legal or constitutional measure not already approved by the political branches. The effect of both devices is binding: The National Congress will order the norms that result as a consequence of the consultation placed in vigilance via the constitutional procedure stated in law. A valid plebiscite or referendum must follow a specific procedure. It must first be proposed by the president, ten congressmen, or six percent of voters. It must then be approved by two-thirds of Congress before being submitted to the public for a vote. It is unclear whether the devices in Article 5 are meant to be the exclusive devices for popular consultation. Therefore, it is possible that the Congress might be able to create other devices by law. One such device might be a non-binding consultation or poll of the public. Such a device might not necessarily need to follow the procedures stated for the referendum and plebiscite in Article 5. But in order for President Zelaya Rosales to order such a device by executive decree, he must find some basis for the decree either in the Constitution or in existing law. In issuing PCM-020-2009, 112 the president relied mainly on the Law of Citizen Participation, 113 and in particular on a device called the citizens initiative, which is defined in Article 3, clause 4 114 and Article 5, clause 1 of the Law. According to Article 5, clause 1:
See supra note 32. The Law of Citizen Participation was passed on January 27, 2006, in the early days of President Zelaya Rosaless term. 114 Article 3 of the Law of Citizen Participation states as follows: The mechanisms of Citizens Participation, among others, are:
113 112

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The citizens initiative is a participation mechanism by which citizens can present the following requests and initiatives: (1) to ask the heads of public organs or agencies of whichever state power to convoke the citizenry in general, the members of a municipality, of a neighborhood or town, of a profession, sector, or organized social group, so that they emit opinions and formulate proposals on collective problems that affect them. The results will not be binding but yes relevant elements for the exercise of the functions of the convoking power. 115 This provision emphasizes the power of the citizen to make requests to certain public authorities so that the citizenry or a group of the citizenry might be convoked to emit opinions or formulate proposals on public policy. This specific provision, along with the law in general, is focused on empowering citizens to gain a greater say in their government. 116 The key question here is the scope of the power that is given to government officials to convoke citizens. There is no doubt that this provision would give the president or the heads of a department or municipality, at the request of various social groups, the ability to convoke a meeting at which certain citizens could emit opinions or formulate proposals on some set of issues. But it is probably inadequate authority to allow the president to hold a nationwide, non-binding vote, a process that is more expensive, complex, and subject to potential abuse. Unlike the procedures for referenda or plebiscites, 117 the citizens initiative provision specifies no threshold for the number of petitions or signatures, or other procedures (such as congressional approval) that would be required before convok[ing] the citizenry for purposes of a vote. According to Article 5 of the Constitution, referenda and plebiscites can only be proposed by the president, ten congressional deputies, or the signatures of six percent of the general population, and are only sent to the people for a vote if also approved by two-thirds of all members of congress. Once approved, the referendum or plebiscite process is overseen by the Supreme Electoral Tribunal,
Plebiscite; Referendum; Open municipal meetings; Citizens initiative; and Others prescribed in law. 115 Clause 2 of article 5 of the Law of Citizen Participation states that the citizens initiative can also be used in order for citizens to offer collaboration to the public authorities, in the execution of a work or the lending of a service, offering for its realization economic resources, materials, or personal work for the benefit of the community or of the State. This use of the citizens initiative has no relevance here. 116 The preamble to the law states, in part, as follows: Citizen participation implies the inclusion of citizens in the formulation, execution, and evaluation of all the policies and actions of the State, converting them into the protagonist and formulator of their own destinies. 117 CONST. HOND., art. 5. The purposes and procedures for referenda and plebiscites are specified in article 5 of the Constitution. Referenda are defined as binding nationwide votes on laws or constitutional amendments already passed by congress, so that they can be ratified or disapproved by the populace. Plebiscites are defined as binding nationwide votes on constitutional amendments or proposed statutes that have not already been approved by the Congress. 1) 2) 3) 4) 5)

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presumably in order to ensure that the process is fair and accurate. To allow a nationwide vote, even if nonbinding, without these procedures would make it possible for the executive to waste public funds and to manipulate public opinion. 118 c. The Constitutionality of the Decrees We now discuss the arguments that the decrees violated Article 239 of the Constitution. Article 239 establishes that no president who has once held the presidency may hold it again. It states that anyone who breaks that prohibition or proposes its reform, along with those who support him in doing so directly or indirectly, shall immediately cease in the exercise of his office and be ineligible to serve in a public post for ten years. This provision is part of a system regulating changes to the Constitution. Article 373 states the procedure for constitutional reform, which must proceed by a two-thirds vote in the Congress in two different sessions. Article 374 makes some articles of the Constitution (including the provision prohibiting presidential reelection) unamendable. The intent of Article 239 is to serve as a safeguard against executives perpetuating themselves in power. The article was written against the backdrop of Honduran constitutional history. Historically, Honduran executives often broke rules about term limits or reelection in order to avoid giving up power. Article 239 seeks to prevent this by making it unconstitutional not only to break the article, but also to propose its reform. The question of whether Zelaya Rosales violated Article 239 is very difficult to answer. There is no argument that he actually broke the prohibition on reelection. The debate centers on whether he propose[d] its reform. On the one hand, the provision could be read broadly in an attempt to stop executives who are trying to extend their
The decrees also relied on several provisions of the Honduran constitution and of international law, but we do not think any of these provisions plausibly authorized them. The decrees relied on articles 1, 2 and 245 clauses 1 & 2 of the Honduran Constitution as support. Article 1 defines the general ends of the state, and article 2 states that sovereignty belongs to the people, from which emanate all the powers of the State, which are exercised by representation. This language indicates that the representative branches are ultimately answerable to the people, but it does not provide any specific support for this consultation or poll. Article 245 deals with the powers of the president: clause 1 states that the president has the attribution of complying and ensuring compliance with the Constitution, treaties and conventions, laws, and other legal dispositions. Clause 2 states that the president directs the general policy of the state and represents it. Neither clause authorizes this consultation or poll absent some more specific legislative support. In addition, the decrees relied on Article 19 of the International Covenant on Civil and Political Rights and article 6 of the Inter-American Democratic Charter. Article 19 of the Covenant enshrines the rights to hold opinions without interference and to freedom of expression. This provision creates a human right in individual citizens to hold opinions and to express them, but does not authorize any particular government action to gauge these opinions or expressions. Article 6 of the Inter-American Democratic Charter states: It is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition for the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy. This provision encourages participatory democracy, but does not suggest that it can be exercised outside of a countrys existing legal order.
118

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terms early on in that process. President Zelaya Rosales had issued a decree as a first step in a process that he hoped would end in the writing of a new constitution. Such a new constitution might alter the unamendable articles, including the prohibition on presidential reelection. Under a very broad reading of Article 239, this might mean that he propose[d] [the] reform of the prohibition on presidential reelection. On the other hand, Article 239 could be read more narrowly in order to give more space for political participation and debate. President Zelaya Rosales never expressly stated that he intended to alter the presidential no-reelection clause. Further, his consultation or poll was to have no binding effect. Under a narrower reading of Article 239, the decrees may not have propose[d] the reform of the rule against presidential reelection. There is also the closely related question of whether a constituent assembly could be called within the Honduran legal order to write a wholly new constitution. Articles 373 and 374 lay out procedures for constitutional change, but they do not include the possibility of a constituent assembly. These articles would seem to prohibit a constituent assembly under the existing constitutional order. However, Article 2 states that sovereignty resides with the people. Ultimately, we think that there is no clear answer to this question from the perspective of existing Honduran constitutional law. d. The Contentious-Administrative Judicial Orders We find that President Zelaya Rosales illegally failed to comply with the judicial orders of the contentious-administrative court. The administrative court suspended PCM-005-2009 on May 27. It issued a clarification of this decision on May 29. The clarification banned any other administrative act, general or particular, that carries the same end as the tacit administrative act that has been suspended, as well as any change in name in the consultation or questioning procedure, which implies an evasion of compliance with the interlocutory decision that is being clarified.. On June 3 it ordered the executive to report on the measures it had taken to comply with the early orders. On June 18 it ordered the president to stop evading the prior orders of the court. President Zelaya Rosales attempted to file both appeals and amparos against these decisions. All of these appeals and amparos were denied on the grounds that the president lacked standing. The Honduran Constitution states that all public officials are bound by law.119 The contentious-administrative court issued an order suspending PCM-005-2009 and forbidding the president from carrying out any other administrative act with the same end. None of these orders was overturned by a higher-ranking court. The president was required to comply with these orders. Yet, the president violated the orders of the contentious-administrative court when he publicized Executive Accord 027 of 2009, as
Article 321 of the Honduran constitution states that [s]ervants of the State do not have more faculties than those expressly conferred by law. Any act that is executed outside of the law is null and implicates responsibility. Article 323 states: Functionaries are depositories of authority, legally responsible for their official conduct, subject to the law and never superior to it.
119

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well as when he published PCM-020-2009, and when he continued to take steps to carry out the consultation or poll. Some supporters of President Zelaya Rosales have argued that the president did not have to comply with the orders of the contentious-administrative court because it issued an illegal ruling and an illegal clarification. They argue that the ruling against PCM-005-2009 was illegal because the decree had not been published, and a lawsuit may only be brought against a published decree. 120 Further, they argue that the clarification was illegal because it attempted to strike down other decrees not before the court, and an administrative lawsuit may only nullify the decree that is the object of the action. 121 They also argue that the procedures followed by the Procuradura and the Court were illegal. They argue that the Procuradura filed a pleading essentially agreeing to the demand, and that this may not be done without getting the presidents permission.122
120

Article 30 of the Law of Contentious-Administrative Jurisdiction states that acts of a general character issued by the Administration can be challenged once they have entered into administrative effect. It is unclear whether this requires publication. A provision might have entered into administrative effect once the administration has acted in reliance on the decree, even if it has not yet been published. We note that Zelaya Rosaless failure to publish the decrees was likely in violation of Honduran law. Article 119, clause 4 of the General Law of Public Administration states: Decrees, as well as the Accords of the President of the Republic and of the Secretaries of State, will be published in the Official Gazette. The president publicized PCM-005-2009 on March 24, 2009 and it was never published. Similarly, Executive Accord 027-2009 was publicized on May 29, 2009 and never published. PCM-0192009 and PCM-020-2009 were publicized on May 27, 2009, but not published until June 25, 2009. If President Zelaya Rosales intended to give these measures legal effect, they should have been published. The non-publication of these decrees appeared to be an attempt to evade judicial review. 121 Article 82 of the Law of Contentious-Administrative Jurisdiction states that when the Court upholds an administrative challenge, it will totally or partially nullify the impugned act. Article 84 of the Law allows the parties to seek a clarification or addition to the decision in the terms of the laws of civil procedure. It is unclear whether these laws allow the judge to issue an order encompassing an as-yet unpublished decree that is virtually identical to the decree already struck down. 122 The Procuradura issued an initial pleading, on May 20, on the question of whether the decree should be suspended pending resolution of the merits. Her filing stated: For the reasons stated above, it is evident ... that the injunction could provide the most adequate circumstances for this tribunal to resolve the legal situation ; in this regard, Article 121 of the Law of the Contentious-Administrative Jurisdiction stipulates that injunctions may be granted when the execution of the actions claimed may cause damages or prejudice impossible or difficult to repair; in this sense, it is solicited that the Judge determine the corresponding Interlocutory Sentence, according to what proceeds from the law. She expressed no view on the merits. Article 24 of the Law of Contentious-Administrative Jurisdiction makes the Procuradura the proper respondent in a case against an administrative decree. However, it gives the Procuradura the power to plead no contest to the demand (allanarse a la demanda) only after getting the express permission of the president via an Accord. In the case of such a plea (see article 86 of the Law of Contentious-Administrative Jurisdiction), the Judge will usually dictate sentence in accord with the demand. However, if the respondent is the Public Administration, then the judge retains the power to issue whatever sentence is just and accords with law. The Procuradura did not receive permission from the president before filing this pleading. However, the position taken by the Procuradura in this pleading probably did not constitute a formal plea of no contest under Honduran law. First, while it failed to defend the decree, it also did not take a clear position in favor of its nullification or suspension. Second, it only gave an argument on the preliminary suspension of the decree, and not on the underlying merits of the action.

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Finally, they argue that the president should have been allowed to intervene in the lawsuit and to file appeals and amparos against the decision. 123 We emphasize three points here. The first is that these arguments, even if true, would not justify Zelaya Rosaless conduct. The judicial orders were issued and not overturned by any higher court. They should have been obeyed. The second point is that it is unclear whether the actions of any actor during the judicial process violated Honduran law. 124 But third, it is clear that the lack of clarity in some of the legal texts, and the positions taken by various actors, worsened the crisis rather than calming it. For example, the law may have allowed the Procuradura to agree with the demandants position rather than issuing a defense of the law. It may also have prohibited Zelaya Rosales from intervening directly in the suit. But the combination of these factors meant that an executive decree of great national importance received no defense before the trial court. Further, no ordinary or special appeal was ever heard. The legal process did not allow for a full and transparent debate on the legality of the decrees. Further, it is unclear whether the contentious-administrative court was permitted to hear a lawsuit against an unpublished decree. It is also unclear whether it had the legal power to issue a clarification prohibiting future decrees that were focused on the same end as the nullified decree. But both actions were motivated by actions by Zelaya Rosales which seemingly aimed at evading judicial review and on evading compliance with the initial judicial decision.
The Presidents lawyers, along with others, attempted to intervene in the lawsuit before the contentious-administrative judge as intervenors (coadyuvantes) in defense of the law. Article 18 of the Law of Contentious-Administrative Jurisdiction allows a party to intervene so long as he has a direct interest in the maintenance of the act that motivates the contentious-administrative action. Article 27 states: The persons who act as respondents, or intervenors, should litigate together and under the same representation and direction, with their positions never being contradictory. If in the timeframe conceded they cannot come to an agreement on this, the tribunal will resolve it as it believes pertinent. Zelaya Rosales appears to have had a direct interest in maintaining his own decree. However, he may have litigated a contradictory position to the Procuradura. It is unclear whether and under what conditions he should have been allowed to intervene before the contentious-administrative tribunal. Zelaya Rosales also filed a series of appeals and amparos from the decisions of the contentiousadministrative court. These were all denied on the ground that he lacked standing to file them. According to Article 90 of the Law of Contentious-Administrative Jurisdiction, appeals can only be filed by petitioners or respondents, and intervenors can only join in appeals already filed by one of these actors. So Zelaya Rosales could not file an ordinary appeal against the decisions of the contentious-administrative tribunal on the merits. Article 41 of the Law of Constitutional Jurisdiction states that an amparo can be filed by an aggrieved person or anyone else acting in their name, so that they declare in concrete cases that a regulation, act, or resolution of authority, does not bind the petitioner nor is applicable because it contravenes, reduces, or distorts any of the rights recognized by the Constitution. The Courts held that Zelaya Rosales lacked standing to file an amparo because he was not the legal representative of the state of Honduras in this action. It is unclear whether the standing requirements for the contentious-administrative case are the same as the standing requirements for an amparo. 124 See supra notes 120-123.
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B. Legal Analysis of the Actions of the Ministerio Pblico and the Supreme Court in Connection with the Criminal Case Against President Zelaya Rosales 1. Factual Summary The Ministerio Pblico filed two criminal indictments against Zelaya Rosales, one dated June 25 and the other June 26. Neither case file was made public until June 30. The first indictment, dated June 25, alleges that Zelaya Rosales had committed crimes against the form of government (Article 328 # 3 of the Criminal Code), treason (Article 2 of the Constitution; Article 310-A of the Criminal Code), usurpation of functions (Article 354 of the Criminal Code), and abuse of authority (Article 349 #1 of the Criminal Code). 125 The complaint asked for an arrest warrant against Zelaya Rosales to be issued, arguing that he was a flight risk and that there was a risk of destruction of evidence. 126 The Ministerio Pblico also asked in the complaint that the Armed Forces, and not the military, serve the warrant, arguing that the police had a conflict of interest because they worked under the Secretary of Security, who in turns was a collaborator of the President, and thus there was a fear that the police might not comply with the warrant. 127 Finally, the complaint requested that the case file be kept secret. 128 There is also a second complaint, also lodged by the Ministerio Pblico against Zelaya Rosales, dated June 26, 2009. It is substantially identical to the first complaint. 129 The crime of treason is defined in Article 2 of the Constitution as supplantation of popular sovereignty and usurpation of the constituted powers. Article 4 defines treason as infraction of the norm requiring alternation in the exercise of the Presidency of the Republic. The indictment alleges that Zelaya Rosales violated those norms by seeking to hold a Constituent Assembly and to write a new constitution that would undermine existing powers of state and potentially allow presidential reelection. 130 The crime against the form of government is defined as efforts aimed at stripping in whole or in part the Congress, the Executive Power, or the Supreme Court of prerogatives and faculties that the Constitution gives them. 131 The indictment alleges that Zelaya Rosales committed this crime by failing to follow the procedures indicated in Article 5 of the Constitution for referenda and plebiscites. The indictment alleges that Article 5 is the only mechanism for consultation of the people under Honduran law. 132

125 126

CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros. CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, at 60-61. 127 Id. at 61. 128 Id. at 47. 129 CSJ-1-7_2, Requerimiento Fiscal Contra Manuel Zelaya Rosales. 130 CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, at 54. 131 COD. PEN., art. 328, cl. 3. (Hond.). 132 CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, at 52.

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His consultation would not have been supervised by the Supreme Electoral Tribunal and was not approved by two-thirds of Congress. 133 The crime of usurpation of functions occurs when a functionary or public employee usurps functions belonging to another charge. 134 The indictment alleges that Zelaya Rosales committed this crime by seeking to carry out his consultation or poll without the supervision of the Supreme Electoral Tribunal, the only institution of state authorized for these sorts of consultations. 135 The crime of abuse of authority occurs when an official denies giving due compliance to an order, sentence, decision, accord, or decree dictated by a judicial or administrative official inside the limits of their respective competences and with the legal formalities. 136 The indictment alleges that Zelaya Rosales committed this crime by refusing to comply with the decision of the contentious-administrative court. 137 The contentious-administrative court had suspended his decree and had issued a clarification forbidding Zelaya Rosales to issue a new decree aimed at the same ends. Upon receiving the indictment, the Supreme Court proceeded to name a single natural judge, Magistrate Tomas Arita Valle, who would preside over the pre-trial phase of the case. 138 The Supreme Court, on June 26, approved the request of this natural judge to issue a warrant allowing entry into Zelaya Rosaless house (between the hours of 6 a.m. and 6 p.m.) and a separate warrant allowing his arrest. 139 The entry warrant ordered Zelaya Rosales to be brought before the corresponding authority. The warrant was to be executed by Rene Antonio Hepburn Bueso, a lieutenant coronel in the Estado Mayor Conjunto of the armed forces. The case file against President Zelaya Rosales, including the complaint, naming of the natural judge, and search warrant, were not made public until June 30, two days after Zelaya Rosaless removal. On June 29, the Ministerio Pblico filed a motion asking that secrecy be lifted from the case and that the case file be made public, given that the reasons for keeping the case secret had disappeared; the Supreme Court agreed and made the file public on June 30. 140 Thus, there was no evidence or public knowledge of the existence of any criminal case against Zelaya Rosales until June 30. The military went to President Zelaya Rosaless house on the morning of June 28 and seized him. However, they did not bring him before the natural judge. Instead, he was put on a plane to Costa Rica and left in Costa Rica that day. We do not know
Article 5 of the Constitution requires that plebiscites and referenda be proposed by either the president, ten congressmen, or six percent of citizens, and then receive the approval of two-thirds of all members of Congress before being submitted to a nationwide vote. 134 COD. PEN., art. 354. (Hond.). 135 CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, at 58. 136 COD. PEN., art. 349 (Hond.). 137 CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, at 56. 138 Id. at 89. 139 Id. at 92-93. 140 Id. at 95-96.
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whether the military acted alone or after consultation with or under the orders of other institutions of state. Upon accepting the presidency on June 28, 2009, President Micheletti stated that [o]ur army has only fulfilled the duty ordered to it by the Supreme Court, the Attorney Generals Office, and the great sentiment of the Honduran people. 141 One June 29, the new Chancellor (Minister of Foreign Relations) of the Honduran government, Enrique Ortez Colindres, gave an interview with CNN en Espaol. He was asked why you let Zelaya Rosales go to Costa Rica? He responded: We spoke with the President of Costa Rica, through his delegates and representatives, and he, agreeably, left room for things not becoming abusive but instead would allow compliance with law. Ortez was also asked why they had not first arrested and suspended Zelaya Rosales from his post. He stated: [T]he President of the Republic had changed the consultation, and then, published it in La Gaceta and that same day, after carrying forth the spurious consultation, he was going to declare a National Constituent Assembly, and went to break the judicial order and so this was necessary for the authorities that make the decisions in order to avoid a violation of that nature producing thousands of deaths in Honduras. 142 Further, General Romeo Vsquez on July 8, 2009 gave an interview to CNN en Espaol in which he stated that he acted on behalf of an inter-institutional consensus. He also stated that someone was giving the orders, and that the military had to comply with them because the Constitution commands the armed forces to protect the rule of law. 143 After the removal of President Zelaya Rosales from power on June 28, the courts initially moved forward with the criminal trial against him. On June 29, 2009, the Supreme Court issued an order sending the complaint of June 26, 2009 against Zelaya Rosales, which was being tried before the Supreme Court itself, to an ordinary, firstinstance criminal law judge in Tegucigalpa. 144 On July 2, 2009, the Court took the same order with respect to the complaint of June 25, 2009. 145 In this second order, the Court explained that Articles 414 and 416 of the Code of Criminal Procedure provided a special procedure for trying high officials of state, allowing these officials to be tried only before the Supreme Court. But since Zelaya Rosales was no longer such an official, the case against him should go forward via the ordinary process, and thus be sent to a firstinstance criminal judge. Further, on June 30, 2009, the Court issued an order lifting secrecy on the case against Zelaya Rosales. The June 25/June 26 cases against Zelaya Rosales were dismissed on June 30, 2010, because of a decree of amnesty against

Michelleti sucede a Mel, LA TRIBUNA, (June 29, 2009), available at http://www.latribuna.hn/2009/06/29/micheletti-sucede-a-%E2%80%9Cmel%E2%80%9D/. 142 Entrevista Canciller Enrique Ortez Honduras CNN [Television interview of Enrique Ortez, Chancellor of Honduras], CNN en Espaol, (June 29, 2009), available at http://www.youtube.com/watch?v=YBw9PW9cDE8&feature=related. 143 Gobierno golpista hondureo no ha podido explicar por qu expulsaron del pas a Zelaya Rosales. [Television interview of Jose Miguel Insulza, Secretary General of OAS, and Romeo Vsquez, former Chief of the Honduran Armed Forces], CNN en Espaol, (July 8, 2009), available at http://www.youtube.com/watch?v=dqA2HLbgoTU. 144 CSJ-1-7_4, Remision del expediente de la CSJ al Juzgado de Letras Penal. 145 CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, at 100-03.

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specified crimes that was issued on February 2, 2010. 146 However, there are two (subsequently filed) fraud cases still active against Zelaya Rosales, since fraud was not covered by the amnesty. Both deal with an unrelated financial matter misuse or theft of funds in the Honduran Social Investment Fund. 2. Summary of Legal Positions There is no dispute about the basic procedure to be used in trying a high state official like the president. Article 313, clause 2 of the Constitution states that the Supreme Court has the power to hear the processes initiated against the highest officials of state and their deputies. 147 Some of the procedures for criminal trials against high state officials are further regulated by the Code of Criminal Procedure in Articles 414 through 417. The articles indicate that the Ministerio Pblico will investigate possible crimes committed by high state officials. If he finds them to be well-founded, he will present the complaint to the Supreme Court. The Court will select one of its members (called the natural judge) to hear the preparatory and intermediate stages of the lawsuit. A panel of three Supreme Court judges would sit through the trial stage of the case. Appeals would be heard by the Criminal Chamber of the Supreme Court. If this Chamber is not unanimous, the case would be heard by the full Supreme Court. There is also agreement that the relevant procedures are otherwise governed by the ordinary rules of the Code of Criminal Procedure. Once the Ministerio Pblico has presented the indictment to the Supreme Court, the natural judge can order the arrest of the defendant under certain circumstances. 148 He can also order entry into the defendants home. 149 The arrest warrant should order the defendant brought before the judge so that his initial statement can be taken by the natural judge. 150 a. Positions Against the Legality of the Actions of the Ministerio Pblico and Supreme Court Supporters of Zelaya Rosales question whether the indictments were actually filed on June 25 and June 26. They point out that neither indictment was made public and reported on in the press until June 30, two days after Zelaya Rosaless removal. They suggest that the criminal cases were fabricated after Zelaya Rosaless removal. They also
See Programa de Derechos Humanos, Poder Judicial, Informe: Registro y Seguimiento de Procesos Penales, a Nivel Nacional, Relacionados con los Hechos Acaecidos Antes, Durante, y Despues del 28 de Junio de 2009, at 4 (December 2010). 147 This article was reformed in 2004. The prior text of the provision provided that the Supreme Court had the power to [h]ear the processes initiated against high functionaries of state, when the National Congress has declared the case founded in law. See LEON ROJAS CARON, LA CONSTITUCIN HONDUREA ANALIZADA 526 (2006). Thus, prior to 2004 the Congress had to lift a high officials immunity before that official could be tried by the Supreme Court. 148 Article 285 of the Code of Criminal Procedure states that the Ministerio Pblico can request judicial detention of the accused when the indictment is presented before the judge. Article 176 allows preventative detention, and article 178 allows for preventative prison. These devices are permitted, for example, if there were a risk of flight or of obstruction of the investigation. 149 See COD. PROC. PEN., art. 177, 212 (Hond.). 150 See COD. PROC. PEN., art. 286 (Hond.).
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argue that the case should not have been kept secret once it was presented to the Supreme Court. Their position is that no provision of the Code of Criminal Procedure allows for secrecy in this phase of the case. They also question the legality of the arrest warrant, which ordered a military officer and not a police officer to carry out the arrest. They argue that this is illegal under the Code of Criminal Procedure, which requires that police officers carry out arrest warrants. They also argue that members of the military consulted with other institutions of state before carrying Zelaya Rosales out of the country. Finally, they argue that all four of the criminal charges against Zelaya Rosales treason, crimes against the form of government, usurpation of functions, and abuse of authority were legally unfounded. They argue that the consultation or poll procedure followed by President Zelaya Rosales was authorized by law and by the Constitution. Moreover, a Constituent Assembly would have been a lawful way to write a new constitution. Thus, Zelaya Rosales did not commit the crime against the form of government, treason, or usurpation of functions. They also argue that the orders issued by the contentious-administrative court were unlawful. Thus, Zelaya Rosales did not commit the crime of abuse of authority. b. Positions in Favor of the Legality of the Actions of the Ministerio Pblico and Supreme Court Those who argue that the Ministerio Pblico and Supreme Court acted constitutionally stress that the indictments were issued to the Supreme Court on June 25 and June 26. The natural judge, on the Ministerio Pblicos request, properly issued an arrest warrant so that the defendant could be brought before the natural judge. The process was kept secret because of the sensitive nature of proceedings and because there were ongoing investigations against Zelaya Rosales and other officials. Secrecy was lifted on June 30, once Zelaya Rosales had been removed from the country, because of the great public and international interest in determining what had occurred. They also argue that the Court can lawfully use the military to carry out arrest warrants when necessary. Article 306 of the Constitution provides: The judicial organs will require, in necessary cases, the assistance of the Public Forces for compliance with their resolutions; if this assistance is denied or they are unavailable, they will demand it from the citizens. He who unjustifiably refuses to give assistance will be held responsible. They argue that the assistance of the military was necessary in this case. The police are responsible to the Secretary of State for Security. 151 The Secretary of State for Security is a cabinet minister responsible to the president. They argue that the police lacked the necessary independence to carry out an arrest warrant against the president. They also argue that the body arresting the president needed to gain the support

See Ley Orgnica de la Polica Nacional [Organic Law of the National Police of Honduras], art. 1, 2008 (Hond.).

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of or neutralize the Presidential Honor Guard, which always surrounds and protects the president. 152 The armed forces were better suited to perform this task than the police. Finally, these actors argue that the charges against Zelaya Rosales were wellfounded. Because his consultation procedure was unauthorized by law and unconstitutional, he did commit the crimes of treason, usurpation of functions, and against the form of government. Further, because he ignored a series of valid legal orders from the contentious-administrative court, he committed the crime of abuse of authority. 3. Assessment a. The Judicial Process Against Zelaya Rosales We are unable to determine whether the indictments were filed on June 25 and June 26, 2009, as dated. The documents were not made public until June 30, two days after President Zelaya Rosaless removal. The fact that the cases were maintained in secret until June 30 means that we cannot determine with certainty when the case files were created. If we assume that the Ministerio Pblico did present the two indictments to the Supreme Court on June 25 and June 26, then the Supreme Court appeared to have acted properly in naming a natural judge. Under Article 313, clause 2 of the Constitution, the Supreme Court has the power to try high state officials for crimes. And under Articles 414 through 417 of the Code of Criminal Procedure, the Supreme Court must name a single natural judge for the pre-trial phases of the case. The arrest warrant also appears to have been lawfully granted. Under the ordinary rules of the Honduran Code of Criminal Procedure, arrest warrants may be granted if there is a risk the defendant may flee or destroy evidence. 153 These may have been risks in this case. The Honduran criminal code allows a warrant to permit entry into a defendants home in order to make an arrest if necessary. 154 The arrest warrant specified
See Ley Constitutiva de las Fuerzas Armadas [Constitutive Law of the Armed Forces], art. 24, 1998 (Hond.). 153 Art. 176 of the Code of Criminal Procedure allows the Public Ministry to carry out preventative detention of a person in the following circumstances: (1) There exists reason to think that he was involved in the commission of a crime and that he might hide, flee, or make himself absent from the place; (2) Upon initiating the investigations, they cannot identify the presumed guilty party or witnesses and there is a need to proceed with urgency, in order to avoid that those who were present in the place where the crime was committed will move away from there, will communicate among themselves, or will modify in whatever form, the state of things or the place of the crime; and (3) Without just cause, any person obliged to give a declaration refuses to do so after having been duly cited. Art. 178 allows the judge to order preventative prison if some of the following circumstances are met: (1) Risk of flight of the defendant; (2) Possible obstruction of the investigation by the defendant; (3) A founded risk that the defendant will reintegrate into the criminal organization that he is suspected of belong to and will use the mechanisms that the organization gives him to obstruct the investigation or to facilitate the flight of other defendants; (4) A founded risk that the defendant will attempt or execute acts of retaliation against the accuser or denouncer. 154 COD. PROC. PEN., art. 177, 212 (Hond.).
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that the defendant should be brought in front of the natural judge so that his declaration could be taken. This is the proper procedure under the Honduran Code of Criminal Procedure. 155 Although indictments were allegedly presented to the Supreme Court on June 25 and June 26, the process was kept secret until June 30. It is unclear whether this was legal under Honduran law. Article 278 of the Honduran Code of Criminal Procedure states: Investigations realized by the competent authorities will be maintained in secret with respect to all persons who do not form part of them, while their results have not been presented to the judicial organs. This requires that investigations by the Ministerio Pblico be maintained in secret before they have been presented to the judiciary. However, the indictments were allegedly presented to the judiciary on June 25 and June 26. No provision of the Honduran Code of Criminal Procedure expressly allows criminal processes to be maintained in secret once the indictment has been presented to the judiciary. b. The Use of the Military to Carry out the Arrest Warrant The use of the military rather than the police to execute the arrest warrant against President Zelaya Rosales appears to be legal under Honduran law. However, the relevant legal provisions are unclear. The Code of Criminal Procedure consistently assumes that the police will carry out arrest warrants. This is the normal legal practice in the country. However, Article 306 of the Constitution states that the [j]urisdictional organs will require, in necessary cases, the assistance of the Public Forces for the compliance of their resolutions . In this case, the assistance of the military was arguably necessary. The police may not have been sufficiently independent of the president. Likewise, the police may have been unable to subdue the Presidential Honor Guard around the president. We are unable to determine whether other institutions of state or political actors had discussions with the military about removing President Zelaya Rosales from the country before the military carried out this act. It is also unclear whether other institutions or military actors ordered the military to remove Zelaya Rosales from the country. Any such discussions or orders would be illegal under Honduran law. The Code of Criminal Procedure requires that a defendant be taken before a judge after an arrest warrant is executed. 156 Likewise, Article 102 of the Honduran Constitution prohibits any Honduran from being expatriated or sent by the authorities to a foreign state. 157
See COD. PROC. PEN., art. 285-286 (Hond.). Id. 157 The question of how the Supreme Court and the Ministerio Pblico were legally required to respond to the Armed Forcess actions in carrying Zelaya Rosales out of the country is a complex one. The Supreme Court made certain statements implying that the actions of the Armed Forces in this regard were legal. As indicated above, these actions were not legal, but instead constituted the disobeying both of the judicial warrant and an unconstitutional expatriation. If the Supreme Court or another court had substantially continued with the case against Zelaya Rosales in his involuntary absence, the trial may have had doubtful legitimacy in light of due process and other related norms found in the Constitution. It may have been constitutionally problematic to proceed against Zelaya Rosales under such circumstances. However, while the Supreme Court did remit the two indictments against Zelaya Rosales to a lower court
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c. The Underlying Basis for the Charges At least some of the charges against Zelaya Rosales appear to be well-founded. The criminal code states that the crime of abuse of authority occurs when an official denies giving due compliance to an order, sentence, decision, accord, or decree dictated by a judicial or administrative official inside the limits of their respective competences and with the legal formalities. 158 As stated above in Part IV.A, Zelaya Rosales clearly disobeyed the May 29 clarification of the contentious-administrative court, as well as the June 18 order by the contentious-administrative court to cease moving forward with the proposed consultation or poll. It is irrelevant whether the judicial decision was correct or whether all of the proper procedures were followed. The decision was not overturned by any higher court. Therefore, it should have been obeyed. 159 C. Legal Analysis of the Congressional Actions 1. Factual Summary

On Wednesday, June 3, 2009, the National Congress approved a resolution by majority of votes, stating: The National Congress, composed of the deputies that represent the people, in conformity with Article 202 of the Constitution and in the exercise of attribution 20 of Article 205 of the aforementioned legal text, given that the conduct of the Executive Branch in fulfilling its obligation to remit the national budget, as well as the public disobedience of the judicial order complemented by the arbitrary order of the Armed Forces to support the National Institute of Statistics in an illegal poll, is a notorious negative practice of his administration, and therefore censures (imprueba)

judge on June 29 and July 2, 2009, these cases were dismissed on June 30, 2010 because of an amnesty decree issued on June 2, 2010, which covered these indictments. This dismissal likely avoided due process or other constitutional problems with respect to the two indictments. Finally, we note that the Ministerio Pblico is charged with investigating criminal wrongdoing and with bringing appropriate cases to the courts. In this case it would appear that the Ministerio Pblico acted appropriately by filing charges against the military leaders involved in the decision to have removed Zelaya Rosales from the country. The ultimate criminal culpability of these officers is a complex question. The criminality of conduct is a separate question from its constitutionality, and thus a violation of a constitutional norm does not necessarily imply criminal responsibility. We also note that we lack adequate information to assess whether other officials, either inside or outside the Armed Forces, were involved in the expatriation and might have been charged by the Ministerio Pblico. 158 COD. PEN., Art. 349 (Hond.). 159 The other charges against Zelaya Rosales treason, abuse of authority, and usurpation of functions are more difficult to assess. They depend in part, for example, on the underlying question of whether a Constituent Assembly would ever be legal within the Honduran system. This is a question, as we explain throughout our analysis, which cannot be clearly answered within the framework of the Honduran constitution.

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the conduct of the Executive Branch and warns him [to undertake] its immediate rectification. 160 In an interview regarding the foregoing resolution, Congressman Rodolfo Iras Navas indicated that the Constitution of the Republic says nothing clear with regards to sanctioning the Executive if it does not abide by the resolution of Congress, but the deputies have the power to analyze if the President, in this case, is fit to continue governing. 161 In this regards, Congressman Iras Navas added that the Congress of the Republic, with a qualified majority can disqualify (inhabilitar) the president from governing and appoint someone else in his place. On Thursday, June 25, 2009, the National Congress held a session with a quorum of approximately 115 members present, out of 128 total members. 162 This session included in its agenda, under draft bills, a draft bill presented by the President of the Board of Directors of Congress, Roberto Micheletti Ban, proposing to censure (improbar) the conduct of the Executive Branch, with regards to the removal from office of the Chief of the Council of the Armed Forces, citizen Romeo Vsquez Velsquez. 163 The President of Congress appointed a Special Commission composed by Congressmen Jos Alfredo Saavedra Paz (also the Secretary of the Board of Directors of Congress), Gabo Alfredo Jalil Meja, Antonio Csar Rivera Callejas, Juan Ramn Velsquez Nazar (also one of the Vice-presidents), and Jos Toribio Aguilera Coello, to pronounce themselves on the Draft Bill proposing to censure the conduct of the Executive Branch, with regards to the removal from office of the Chief of the Council of the Armed Forces, citizen Romeo Vsquez Velsquez. 164 This session was suspended at 1:25 p.m. in the afternoon, and reconvened at 4:40 p.m. 165 At the renewal of the session, Juan Ramn Velsquez Nazar, who was also previously appointed to the aforementioned Special Commission, presented the following motion: That this National Congress shall appoint a Special Commission for the investigation to approve or censure the administrative conduct of the representative of the Executive Branch because of his failure to provide due attention to problems of national interest and defying the Judicial Organisms by failing to abide by their resolutions and decisions, in
El Congreso imprueba la conducta del Ejecutivo, LA PRENSA, June 4, 2009, available at http://www.elheraldo.hn/Ediciones/2009/06/04/Noticias/El-Congreso-imprueba-la-conducta-del-Ejecutivo. 161 Id. 162 National Congress, Records of session no. 30 (2009), 1-2. The announcement of the removal of the Chief of the Council of the Armed Forces was made by President Zelaya Rosales on the previous night of June 24, 2009. See Rodrguez Velsquez v. Zelaya Rosales, Constitutional Section, Supreme Court of Justice, SCO-881-2009 (June 25, 2009), 2-4. 163 National Congress, Records of session no. 30 (2009), ss. 4.1), 6. 164 National Congress, Records of session no. 30 (2009), ss. 9.2), 38. 165 National Congress, Records of session no. 30 (2009), ss. 10-11, 42. At the renewal of sessions, quorum was again established, but the exact number of congressmen accounted for was not indicated in the record.
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detriment of the Rule of Law. Also, a dialogue should be conducted to analyze the efforts that have been conducted with regards to the problematic situation developing at this moment. 166 This new motion was debated by the Congress in light of the events surrounding President Zelaya Rosaless removal of confiscated ballot material for the Fourth Urn from the Acosta Meja Air Force Base in Tegucigalpa occurring earlier same afternoon. 167 Congress approved the foregoing resolution in its original text, even though the final resolution indicates the approval incorporated, the suggestions made by the Honorable Congressmen Juan Orlando Hernndez Alvarado and Jos Toribio Aguilar Coello. 168 The new Special Committee appointed for this new motion was composed of Congressmen Ricardo Rodrguez, Rigoberto Chang Castillo, Jos Toribio Aguilar Coello, Enrique Rodrguez Burchard, and Wilfredo Bustillo Castellanos. This new motion apparently superseded the appointment of the earlier Special Commission. This second Special Commission requested that the Congress give them more time to make their investigations, given the delicate nature of the request. 169 The session was suspended on Friday, June 26, 2009 at 1:12 a.m. Congress resumed this session on Sunday, June 28, at 12:30 p.m. There is no mention of the call to the meeting, since it should have been extraordinarily convened as it was a Sunday, but the existence of quorum is indicated in the session. The first point of the session was the presentation of the report of the Special Commission in charge of the opinion regarding the censure draft bill. The Chairperson of the Special Commission, Ricardo Rodrguez, presented the report. The report includes a series of charges against President Zelaya Rosales, as follows: This Commission considers that the Executive Branch has executed unfortunate actions, defying the standing authorities and compliance of its constitutional and legal duties, that in one way or another impact the normal activity of the nation; to that effect, it is our mission to inform the entire Congress well and faithfully. We have personally reviewed the corresponding documents, to wit: a) The failure to sanction more than 96 decrees and laws remitted to Mister President in compliance with the legal procedures for issuing laws, b) The failure to remit a General Budget of the Republic, that in accordance with constitutional mandates should have been presented to Congress on September 15 of last year at the latest; c) The decisions issued by the Contentious-Administrative Court and ratified by the Contentious-Administrative Court of Appeals in Tegucigalpa,
National Congress, Records of session no. 30 (2009), ss. 13, 47. Particularly referenced in the comments of Congressman Juan Orlando Hernndez Alvarado, who called for the investigation of these actions and an urgent resolution of the Special Committee examining this draft bill. National Congress, Records of session no. 30 (2009), ss. 13, 48. 168 National Congress, Records of session no. 30 (2009), ss. 13, 60. 169 National Congress, Records of session no. 30 (2009), ss. 14, 61.
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regarding the illegality of the Fourth Urn process and the actions related to the poll; d) Notices to the Executive Branch from the Prosecutors Office regarding the illegality of the aforementioned poll; e) Decision of the constitutional revision requesting a temporary injunction claimed with regards to the removal of the Chief of the Council of the Armed Forces; f) Records of the confiscation and deposit for custody of electoral material, charged to Aviation Colonel, Marco Vitelio Castillo Brown, g) Decree No. PCM-020-2009 issued by the Council of Ministers and published in the official publication La Gaceta on June 25 of the present year [2009], [containing] a public opinion poll for the convocation of a NATIONAL CONSTITUTIONAL ASSEMBLY, [which] began to be executed today. In light of the foregoing, the Judicial Branch, through the ContentiousAdministrative Court, issued a resolution ordering the Armed Forces to immediately confiscate the material. In addition to the previous examples, we can also add notorious issues of public knowledge, that have been covered by the media: the scant attention to substantial problems faced by the Honduran people like the A1HN1 flu, which has already caused human losses, the victims and the reconstruction of the areas affected by the earthquake, the financial crisis which has caused the loss of more than 100,000 jobs, the continuously increasing insecurity that causes mourning for thousands of families, drives away national and foreign investment that Honduras needs, as its struggles to develop, the removal of the confiscated electoral material, and the constant confrontation with the operators of justice. All of the above demonstrates that the President is endangering his fidelity to the Republic, his compliance with the Constitution, and the laws that regulate the actions of public officials, placing the Rule of Law, governance, and the democratic system in peril. That this is the chronology and compilation of events found during the exercise of our commission, for which we have been provided with documentation from the corresponding authorities. 170 After the report was read, the next item was the presentation of the resignation letter allegedly signed by President Zelaya Rosales. According to the congressional record from the session, the Secretary of the Board of Congress immediately submitted a vote on the resignation, and the record states it was accepted. 171 However, in an interview with two of the authors of this report, the then-secretary of Congress stated that the resignation had been archived and not accepted. 172 He further stated that Congress was aware of an interview Zelaya Rosales gave from Costa Rica in which he was denouncing the resignation letter as fraudulent. According to his account, Congress never attempted to rely on the resignation letter in removing Zelaya Rosales. 173
National Congress, Records of session no. 30 (2009), ss. 17, 62-64. National Congress, Records of session no. 30 (2009), ss. 18, 65. 172 Interview of Jose Alfredo Saavedra Paz, January 13, 2011, by Leonidas Rosa Suazo and David Landau, Tegucigalpa, Honduras. 173 However, there were comments from at least one Congressman indicating that the decision to remove the President was based on his absence due to resignation. See National Congress, Records of session no. 30 (2009), ss. 20, 73 (comments of Congressman Juan Orlando Hernndez Alvarado).
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At this point, a new Special Commission was appointed to draft the corresponding congressional resolution regarding the resignation of the President of the Republic, Jos Manuel Zelaya Rosales. After this appointment, the session was again adjourned. When the session reconvened momentarily, the first item read was a new174 draft bill, summarized in the record as follows: [R]elated to what the National Congress, in application of Articles 1, 2, 3, 4, 205 Numeral 20), and 218 Numeral 3), 242, 321, 322, and 323, of the Constitution of the Republic resolves to: a) censure the conduct of the President of the Republic, citizen Jos Manuel Zelaya Rosales, for the repeated violations to the Constitution of the Republic and the laws, as well as the failure to observe the resolutions and decisions of the jurisdictional organisms; and b) separate citizen Jos Manuel Zelaya Rosales from the office of Constitutional President of the Republic of Honduras. 175 The record indicates that this new draft bill was approved unanimously. Aside from the two articles included above, there was a third article, not textually copied in the record, but that contained the appointment of Congressman Roberto Michelletti Ban as Constitutional President of the Republic. This third article was approved unanimously, and the resolution was issued as congressional decree no. 141-2009. The text of the approved bill that was attached to the congressional record, however, does not match the one transcribed in the congressional record, although it does match the discussion. For this reason it is almost certain that the discussion centered instead on another draft bill, proposed by Congressmen Ricardo Rodrguez, Rigoberto Chang Castillo, Rolando Dubn Bueso, Jos Toribio Aguilera Coello, and Gabo Alfredo Jalil Meja. The final text of the approved congressional bill, in its disposition, reads: Article 1: The National Congress, in application of Articles 1, 2, 3, 4, 205 Numeral 20), and 218 Numeral 3), 242, 321, 322, and 323, of the Constitution of the Republic resolves to: A) censure the conduct of the President of the Republic, citizen Jos Manuel Zelaya Rosales, for the repeated violations to the Constitution of the Republic and the laws, as well as the failure to observe the resolutions and decisions of the jurisdictional organisms; and B) separate citizen Jos Manuel Zelaya Rosales from the office of Constitutional President of the Republic of Honduras. Article 2: Constitutionally promote citizen ROBERTO MICHELETI [sic] BAIN, actual President of the National Congress, to the office of Constitutional President of the Republic, during the remaining period to finish the constitutional period finishing on January 27 of the year 2010.
174

There is no indication in the record why the draft bill regarding the resignation was not further National Congress, Records of session no. 30 (2009), ss. 20, 65-66.

discussed.
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Article 3: The present bill shall take effect upon its approval by two thirds of the votes of the members of Congress, and consequently is effective immediately. 176 The session was adjourned at 2:25 p.m., and the swearing in ceremony for the new Constitutional President of the Republic, was included in the order of the day for the next session, which was scheduled for that same day, at 2:40 p.m. 177 Negotiating commissions acting on behalf of Manuel Zelaya Rosales and Roberto Micheletti Ban celebrated a mediation named the Guaymuras Dialogue soon after the initial San Jos negotiations failed. On October 30, 2009, the negotiating commissions reached an agreement, named the Tegucigalpa-San Jos Accord. This accord included a point submitted for deliberation by the National Congress. The text of the TegucigalpaSan Jos Accord indicated that the National Congress, as an institutional expression of popular sovereignty, in the use of its powers, in consultation with the points that the Supreme Court of Justice should consider pertinent and in conformity with the law, should resolve in that proceeding with respect to returning the incumbency of Executive Power to its condition previous to June 28 until the conclusion of the present presidential term, on January 27, 2010. However, the negotiating commissions disagreed on the timeline for the vote by the National Congress: Zelaya Rosales wanted the vote before the elections, while Micheletti Ban and the National Congress seemed to agree that the vote should be held after the elections. As a result, Zelaya Rosales finally retracted his agreement with the Tegucigalpa-San Jos Accord. General elections were held in Honduras on November 29, 2009. Following these elections, on December 2, 2009, the National Congress submitted the foregoing issue to vote, 178 notwithstanding Zelaya Rosaless retraction. The Secretary of Congress read reports requested as to the legal implications of the vote, delivered by the Supreme Court of Justice, the Prosecutors Office, the Attorney Generals Office, and the National Commissioner for Human Rights. The opinions, which were read during the congressional debate, generally agreed that the incumbency of the presidency could not be returned to its state previous to June 28, 2009. 179 After hearing the opinions, the following motion was submitted to vote by 111 of the 128 members of the National Congress: in order to strengthen the democratic system and the Rule of Law, to ratify in each and every one of its parts, the actions taken on the session of June 28 of the present year, as contained in congressional decree no. 141-2009 of June 28, 2009, published in La Gaceta no. 31,950 of July 1, 2009. 180 The final vote on the motion was 111 votes in favor, 14 votes against, with 3 absences. 181

176 177

Congressional bill no. 141-2009. National Congress, Records of session no. 30 (2009), ss. 21, 77. 178 National Congress, Congressional record no. 52 (2009), ss. 11, 18. 179 National Congress, Congressional record no. 52 (2009), ss. 11, 19-56. 180 National Congress, Congressional record no. 52 (2009), ss. 12, 57-58. 181 National Congress, Congressional record no. 52 (2009), ss. 12, 196.

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2. Summary of Legal Positions We found several legal issues to analyze with regards to the actions of the National Congress. The first, and principal issue, is the legality of the congressional actions resulting in the removal of Manuel Zelaya Rosales from the presidency. The second issue is the legality of the appointment of Roberto Micheletti Ban as Constitutional President. A third issue is the legal effect of the congressional vote, on December 2, 2009, ratifying the removal of Zelaya Rosales. a. Positions against the Legality of Actions taken by Congress The supporters of Manuel Zelaya Rosales argue that the National Congress had no authority to remove him from the presidency, and therefore, his substitution by Roberto Micheletti Ban constituted an illegal act. 182 These supporters point out that there is no express authorization allowing the National Congress to remove a sitting president in Article 205 of the Constitution. They read Numeral 20 of Article 205 of the Constitution as conferring censure faculties upon the National Congress, but no impeachment faculties. Moreover, supporters of Zelaya Rosales insist that Congress cannot interpret the Constitution to grant itself more powers than those expressly conferred. 183 They add that the Supreme Court has placed limits on this interpretive power in ways that would have made it impossible to invoke in the fashion used here. 184 Also, the congressional attributes in Numeral 10 of Article 205 of the Constitution, cannot confer more powers than those already enumerated in the Constitution. In this regard, supporters of Zelaya Rosales also add that, even if the National Congress had faculties to interpret the Constitution, these have been historically made through a decree, and have not been used
Some supporters of Zelaya Rosales argue that the National Congress was not legally convened and that there was no quorum present, since the number of congressmen is unclear. As mentioned in the analysis below, the records seem to reflect that quorum existed in the congressional sessions, and that the decisions taken followed a majority vote. We are unable to make an independent determination of this factual issue. 183 Article 205, numeral 10, grants the National Congress power to [i]nterpret the Constitution of the Republic in ordinary sessions, in a single legislature, with two thirds (2/3) of the votes of the totality of its members. 184 See Constitutional Chamber, Supreme Court of Justice, Unconstitutionality Review Decision No. 2895-02, May 12, 2003, and Clarification, May 15, 2003. This decision declared the unconstitutionality of a Congressional reform adding numeral 9 to article 218 of the text of the Constitution. This reform sought to include constitutional interpretations among those legislative acts that were not subject to a presidential veto before entering into effect. In a clarification of its decision, the Constitutional Chamber stated that [t]he Supreme Court of Justice is the definitive and final interpreter of the Constitution of the Republic as derived from articles 303, 304, 316 in relation to 184 of the constitutional text. It must be clear that the definitive and final interpretation is subsumed within the inherent faculties of judges and magistrates in their functions for sentencing and execution of sentences; but this does not invade or diminish the powers of the National Congress with regards to the procedures for reform and authentic interpretation, which must be done according to the formal and substantive directives that the Constitution of the Republic dictates. Id.
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to implicitly reform the Constitution when they perform an action that contradicts the text. Moreover, Zelaya Rosaless supporters mention that any impeachment process, even if it were authorized by the Constitution, would have to be harmonized with the rest of the constitutional text. Therefore, they argue that an impeachment would necessarily have to protect the rights of the individuals accused of administrative improprieties, as in any accusatorial process conducted by the State. Consequently, the impeachment process cannot mean that the accused has no rights to confront his accusers, to be present during the proceedings, or to conduct investigations and present evidence on his behalf. In other words, any such impeachment process was illegal insofar as it did not preserve even the most minimal due process protections for Zelaya Rosales. Additionally, supporters of Zelaya Rosales argue that his destitution hinged on actions, like the supposed violation of the unamendable articles or the violation of judicial orders, that had only been alleged, but that had not been proven in a court of law. 185 As discussed in previous sections, they also dispute that these allegations constituted any type of violation at all. Therefore, they consider the National Congress acted as a fact finder, assuming faculties that are the competence of the Judiciary. Supporters of Zelaya Rosales agree with supporters of Congress that, if there had been a qualified absence of the president, a substitution would have been required, and that, if substitution had operated, the office of president should have fallen upon Micheletti Ban. However, in this case, there was no qualified absence of the President, since it was obvious to members of the National Congress that Zelaya Rosales had been forcibly expatriated. Therefore, the National Congress could not have effected a substitution of an absent president, since it did not have faculties to remove Zelaya Rosales, and Zelaya Rosales had not absented himself from the country permanently. 186 Finally, supporters of Zelaya Rosales allege that the ratification of the original removal decree cannot grant it any more legitimacy than it initially had. Since the original decree removing the president was null, the ratification cannot purport to legitimize what was already illegal. Also, the ratification should have properly been a congressional decree, and not merely a motion. b. Positions in Favor of the Legality of Actions taken by Congress The supporters of the actions of the National Congress argue that Congress was duly authorized for the removal of president Zelaya Rosales in use of their faculties, pursuant to Article 205, Numeral 10 of the Constitution. They interpret this faculty broadly, as giving the Congress the power to impeach a sitting president. In addition, they read this faculty in light of very specific prohibitions against attempts to modify the
See, e.g., Edmundo Orellana, Golpe de Estado en Honduras. Un anlisis jurdico, available at http://www.voselsoberano.com, Sept. 27, 2009, at 8. 186 See, e.g., Efran Moncada Silva, Inconstitucionalidad de la llamada sucesin constitucional, available at http://www.voselsoberano.com, Oct. 2, 2009, at 2.
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Constitution. Therefore, supporters of the actions of the National Congress consider that Articles 239 and 374 of the Constitution give additional powers to the government to defend itself against attempts to modify certain articles of the Constitution. Article 239 establishes that whosoever violates or proposes [the] reform [of the prohibition against presidential reelection], as well as those who directly or indirectly support [reelection] shall immediately cease in the exercise of their office and will be disqualified from having any public office for ten (10) years. On the other hand, Article 374 states that the constitutional articles referring to the form of government, the national territory, the presidential term, the prohibition for any person to be reelected President of the Republic when they have held that office under any title, and regarding those who cannot be President of the Republic for the subsequent period, cannot be reformed. In their view, Zelaya Rosales had publicly manifested that the reason behind the Fourth Urn was his desire to call a Constituent Assembly, dissolving the current Constitution. Because the current Constitution contains unamendable articles, dissolving the current Constitution resulted in an attempt to dissolve these unamendable articles. Additionally, these unamendable articles, particularly Article 374, constitute guarantees that preserve the alternation in the presidency and the term limits. Consequently, the convocation to a constitutional assembly resulted in a violation of the ordinary processes for constitutional reform, and would result in the elimination of safeguards that could be used to prolong the presidential term. Furthermore, these supporters claim that Article 239 is self-executing and therefore that any authority could have pronounced that its violation had occurred and that Zelaya Rosales had been removed. They indicate that Zelaya Rosales motives, as well as several criminal actions, had been consummated in public, and therefore did not require a separate fact finding process. Because all of the legal requirements were in place whereby Article 239 was triggered, Zelaya Rosales had in fact ceased to be in office. As a result, the congressional decree merely ratified the automatic operation of the constitutional norm. Additionally, the supporters of the actions of the National Congress argue that, because the president had ceased in office, the National Congress acted correctly in replacing Zelaya Rosales with the person next in line to assume the presidency in case the sitting president cannot finish his term of office. Specifically regarding this issue, the relevant legal norm is Article 242 of the Constitution indicates as follows: If the absence of the President is absolute, the Vice-president shall exercise the representation of the Executive Branch during the remainder of the constitutional term. But if the Vice-president of the Republic is also absent, the Executive Branch shall be governed by the President of the National Congress, and in the latters absence, by the President of the Supreme Court of Justice, for the remainder of the constitutional term.

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Because the Vice-president had previously resigned, the office fell upon Micheletti Ban, being the president of Congress. Finally, supporters of the actions of the National Congress suggest that the Tegucigalpa-San Jos Accords became a binding agreement. For this reason, Zelaya Rosales was bound by the decision delegated to the National Congress in this agreement, namely to vote upon the restitution or not of the President. Consequently, the ratification of the legality of the removal decree, not only dispelled any doubts as to the actual support for the original decree, but also had an additional legal effect, as Zelaya Rosales had agreed to these terms. In their view, it does not matter that Zelaya Rosales later reneged upon this agreement, since it was binding upon both parties when it was signed by their corresponding representatives. Furthermore, the vote followed the terms of the agreement, and therefore could have been taken in any form the National Congress determined, as long as it could guarantee that the issue had been sufficiently discussed and the votes were appropriately tallied. 3. Assessment The National Congress based their enactment of congressional bill no. 141-2009, where President Zelaya Rosales was removed from office and Roberto Micheletti Ban was appointed Constitutional President, upon several dispositions in the Constitution. In particular, the National Congress expressly relied upon Articles 1, 2, 3, 4, 205 number 20, and 218 number 3, 242, 321, 322, and 323 of the Constitution of the Republic as the source of their faculties. These articles consist of four different categories: articles regarding the democratic, republican form of government (Articles 1-4); the censure faculties (Articles 205 and 218 number 3); the succession line in the case of absence of the president (Article 242); and the general duties of public officers (Articles 321-323). During the debates mentioned above, Congressmen implied several other constitutional dispositions, which are also relevant to their arguments. For a thorough analysis of the faculties of Congress for this bill, we have also considered various other constitutional provisions, among which are Articles 42 number 5, 89, 90, 94, 205 number 10, 239, and 374. a. Removal of President Zelaya Rosales For the present analysis, we found it important to separate the two components of congressional bill 141-2009, namely the removal of the acting president and the appointment of a new president. Regarding the removal of the president, the principal article invoked by Congress is 205 number 20. This article contains the congressional faculty to approve or censure the administrative conduct of certain public officers, including the Executive Branch. The censure faculty does not textually permit any formal sanction that may result from this action. In some cases, for example when the public official may be appointed and removed by Congress, it may follow that censure extends to removal from office. 57

However, in the case of a public official that holds office through direct election, the interpretation that the censure faculty extends to removal from office seems difficult to support by the text of the Constitution.187 In the particular case of President Zelaya Rosales, Congress attempted to use the censure faculty to remove him from office. The censure was supported by a report on administrative violations investigated by the Special Commission appointed by Congress. In its literals a) through g), the Special Commission report lists a series of actions undertaken by the Executive Branch in violation of constitutional, legal, and judicial duties. 188 In addition to the foregoing, there were also some additional, broader allegations of administrative negligence and endangerment of the democratic order. To create the report, the Special Commission acted as a fact finder, investigating data firsthand, with regards to these alleged violations of legal norms. The Special Commission finds the President responsible for these violations, and also concludes that many of these violations are self-evident, as they were public knowledge. 189 These contentions, as well as the debate in Congress, suggest that Congress was following a type of impeachment procedure, where the President was investigated and found responsible of specific violations to the legal norms. Congress did not fully develop in the bill its analysis of one of the most important allegations against Zelaya Rosales: the violation of constitutional norms through the convocation of a national constitutional assembly. This allegation is the most substantial, and has the most constitutional support, insofar as it is related to a possible change in the term limits of the presidency. The Constitution contains several provisions related to the prohibition against presidential reelection or lengthening the term of the presidency. Several of these provisions contain strict prohibitions or stern penalties. For example, citizenship can be lost (although it can be reinstated) for inciting, promoting, or supporting continuation of the term or reelection of the President of the Republic. 190 The prohibition, however, lies specifically within two articles, 239 and 374. Article 374 states that the constitutional articles referring to the form of government, the national territory, the presidential term, the prohibition to for any person to be reelected President of the Republic when they have held that office under any title, and regarding those who cannot be President of the Republic for the subsequent period, cannot be reformed. Article 239 explicitly prohibits reelection and also states that [w]hosoever breaks this disposition or proposes its reform, as well as those who directly or indirectly support him, shall immediately cease in the exercise of their office and will be disqualified from the exercise of any public function for ten (10) years.

Also, as discussed above in Part IV.B, the Criminal Code gives the Supreme Court the power to impose general or special disqualification, which would include removal from office, as a sanction upon conviction of a high official. 188 National Congress, Records of session no. 30 (2009), ss. 17, 62-64 189 National Congress, Records of session no. 30 (2009), ss. 17, 63. 190 CONST. HOND., art. 42, cl. 5.

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The interpretation of Article 239 is unclear on several points. As indicated above in Part IV.A.3.c, it is not clear whether President Zelaya Rosales violated this article. The prohibition could be interpreted more or less broadly, and there are plausible arguments on both sides of the question. If Zelaya Rosales did violate Article 239, it is unclear by what process the sanction listed in the article would be carried out. Some who have supported the position of the Congress have argued that the sanction in Article 239 is self-executing. They argue that an official who violates this article is automatically removed from office without any additional process. Such an argument would be plausible based solely on the text. But it raises deeply troubling implications and would be extraordinary in comparative constitutional law. First, if the article were self-executing, and no institution were charged with interpreting it, then it would be unclear whether the article had been violated in a particular case. It seems then, that some institution must be charged with determining whether Article 239 had been violated. Second, such an interpretation would deny the accused official basic guarantees of the rights to confrontation, self-defense, and due process, which are contained elsewhere in the Constitution. An alternative interpretation would state that Congress had the power to remove officials for violations of Article 239. In other words, Congress would read its censure mechanism found in Article 205, clause 20 to include removal in cases where Article 239 had been violated. This argument might be bolstered by the fact that in the Honduran constitutional order, Congress is charged with the faculty to interpret the Constitution, in ordinary session by a two-thirds vote of its members. 191 While the Supreme Court of Justice is charged with determining whether specific laws conform to the Constitution, the Congress can interpret the Constitution in the abstract. Thus, an argument in defense of Congresss actions might argue that Congress was utilizing its constitutional interpretation power to read Article 205, clause 20 in light of Article 239. But this interpretation is also unlikely. First, past Honduran practice indicates that when Congress interprets the Constitution, it expressly states that it is relying on this power of constitutional interpretation. Also, it issues its interpretation via a special law, which applies abstractly to all future events. These practices are also followed in other countries with a similar constitutional design. They help to safeguard the rule of law by
CONST. HOND., art. 205, cl. 10 (stating that Congress has the power [t]o interpret the Constitution of the Republic in ordinary sessions, in one legislature, with two-thirds (2/3) of the votes of the totality of its members. For this procedure, articles 373 and 374 may not be interpreted.). But see Constitutional Chamber, Supreme Court of Justice, Unconstitutionality Review Decision No. 2895-02, May 12, 2003, and Clarification, May 15, 2003. This decision declared the unconstitutionality of a Congressional reform adding numeral 9 to article 218 to the text of the Constitution. This reform sought to include constitutional interpretations among those legislative acts that were not subject to the presidential veto prior to entering into effect. In its decision, the Supreme Court of Justice indicated that it recognized the congressional power to interpret and reform the Constitution, as long as it conformed to the constitutional norms. Additionally, the Supreme Court of Justice declared itself the final and definitive interpreter of the Constitution. In this regard, it is unclear what the scope or limits to congressional interpretation are. However, the Supreme Court of Justices unconstitutionality decision would not seem to bar a priori any congressional interpretation, as long as it was subject to judicial review. For this reason, this decision does not affect our analysis of the issue below.
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ensuring that citizens and officials have clear notice that the Constitution has been interpreted. Yet the Honduran Congress followed none of these steps in this instance. Bill 141-2009 never mentioned Article 205, clause 10. Nor did Congress issue a special law devoted to interpreting the Constitution. Thus, it is implausible that Congress was utilizing its constitutional interpretation power here. Second, as stated above, Congress is not expressly given the power to remove the president, and it seems very difficult to imply a removal power based on the congressional power to censure the executive in the performance of his duties. Such an important procedure would probably have been textually mentioned, even if the exact removal procedures were not established in the Constitution. 192 Third, the procedure followed in the censure and removal of President Zelaya Rosales did not apply some basic constitutional guarantees. It would be extraordinary to read this article as omitting basic guarantees of the accused to confrontation, self-defense, and due process, which are contained elsewhere in the Constitution. As a result, Article 239 would seem better interpreted if its application included at least the minimal constitutional guarantees for any sanctioning procedure. In the censure, there was no opportunity for evidence to be presented against the allegations, no representation or defense on behalf of President Zelaya Rosales. Further, the removal was carried out at a moment when he was absent because of his forceful removal from the country. For the foregoing reasons, it is likely that the censure procedure did not follow the tenets of the Constitution both its procedure and application. Lastly, we note the possibility that Congress was using its power to accept the resignation of the president or to fill a vacancy in the case of [his] absolute lack, both as bases to remove President Zelaya Rosales. Both are stated as congressional powers in Article 205, clause 12 of the Constitution. We note here that Congress did not appear to rely on its power to accept the presidents resignation. It never stated Article 205, clause 12 as support for its actions. Further, while the record stated that the resignation was accepted, the then-secretary of Congress stated in an interview that the resignation was merely archived and not acted upon. 193 He stated that before the vote, deputies were aware of a television interview, conducted by Zelaya Rosales from Costa Rica, in which he claimed that the resignation was false. Even if Congress had purported to rely on this power in this situation, its exercise would not be in accord with the Constitution. The record indicates that Congress may
The congressional constitutional interpretation power in article 205, clause 10 is a power of constitutional interpretation, not constitutional amendment. It is not a power to contradict or change existing constitutional provisions. We also note that a recent Supreme Court decision suggests that the Court has the power to review congressional interpretations of the constitution. See Constitutional Chamber, Supreme Court of Justice, Unconstitutionality Review Decision No. 2895-02, May 12, 2003, and Clarification, May 15, 2003. This indicates that the Court can strike down congressional interpretations of the constitution if they exceed the boundaries of the existing constitutional text. 193 Interview of Jose Alfredo Saavedra Paz, January 13, 2011, by Leonidas Rosa Suazo and David Landau, Tegucigalpa, Honduras.
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have moved to an immediate vote on the resignation after the letter was read. In these circumstances, an immediate vote would have been impermissible. The power found in Article 205, Clause 12 must be exercised reasonably. Where the resignation letter is known with certainty to be true based on the circumstances such as when the President is able to appear before Congress to confirm its content Congress would be able to proceed to an immediate vote. But where, as here, there is considerable evidence indicating that the resignation letter may have been fabricated, Congress must exercise a reasonable investigation into the truth before accepting a purported resignation. Here, even a cursory investigation would have revealed serious doubts about the authenticity of the letter. A similar analysis applies to the congressional power to fill vacancies in case of the absolute lack of the president. Congress never purported to use this power in bill 141-2009. This power is not listed as a basis for congressional action in bill 141-2009. Therefore, it does not constitute a legal basis for the removal of Zelaya. But even if the Congress had attempted to use this power on these facts, its exercise would not have been in accord with the Constitution. The power to declare the absolute lack of a president, and therefore to fill the resulting vacancy, is limited and must be exercised reasonably. It might be appropriate to use this power in situations where the president was completely physically or mentally incapacitated or where the president had fled the country for a long period of time and had stated that he had no intention to return. But Congress knew that Zelaya Rosales had been forcibly removed from the country when it voted on bill 141-2009. A forcible removal of a sitting president by other actors of state could not reasonably be seen as an absolute lack that would trigger congressional power to fill the vacancy. 194 b. Appointment of Roberto Micheletti Ban as Constitutional President Congress based its appointment of Roberto Micheletti Ban as Constitutional President upon its removal of President Zelaya Rosales. Because of the termination of the latters presidency, Congress took on the responsibility for naming the successor to the presidency. In this regard, Article 242 of the Constitution indicates as follows:
194

Our analysis here concludes that the congressional attempt to remove Zelaya Rosales from office probably violated the Constitution. We do not explicitly analyze other courses of action that Congress might have taken during its session on June 28, which would have complied with the laws and the Constitution. We only analyze the constitutionality of actions that were actually taken. There is no doubt that Congress, under article 205, clause 20 of the Constitution, had the power to censure the President and the conduct of his administration. Congress also had the power to subpoena state officials and other parties to investigate events, not only regarding the conduct of Zelaya Rosales and his administration, but also the actions involved in removing Zelaya Rosales from Honduras. For example, article 205, clause 21 of the Constitution gives Congress the power [t]o name special commissions for the investigation of topics of national interest, and states that appearance at the request of these commissions will be obligatory under the same terms observed in the judicial process. Thus, it is clear that Congress had the investigatory powers necessary to investigate multiple issues involved in the conflict between Zelaya Rosales and other institutions of state.

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If the absence of the President is absolute, the Vice-president shall exercise the representation of the Executive Branch during the remainder of the constitutional term. But if the Vice-president of the Republic is also absent, the Executive Branch shall be governed by the President of the National Congress, and in the latters absence, by the President of the Supreme Court of Justice, for the remainder of the constitutional term. The line of succession is activated if there is an absolute absence of the president. During the congressional debate there was some confusion as to whether the line of succession would be activated because Zelaya Rosales was outside of Honduras, because he had ceased in his office due to the operation of Article 239, or because of his destitution. The first cause is very unlikely, as Zelaya Rosaless exile to Costa Rica on the same morning this decision was taken by Congress, could not have been deemed a permanent absence at that point. Also, the second cause does not have much support from the facts, since even if Article 239 had taken effect, there was no declaration to that effect by any authority, and was not so justified in the bill. Therefore, it seems that destitution of the president, as alleged in the bill, is the only feasible support for the succession to take effect. Congress carried out the succession itself as contemplated in the Constitution. In the vacancy of the presidency, the Vice-president should have assumed as President.195 However, the Vice-president had voluntarily resigned on November 17, 2008, and no new Vice-president had taken office as of the date of the enactment of the congressional bill. 196 The next person in line in this succession was the President of Congress, who at that time was Roberto Micheletti Ban. Therefore, the appointment of Roberto Micheletti Ban followed the constitutional succession, as specified in Article 242. But this does not affect the legality of the removal, which was analyzed above. d. Ratification of Bill 141-2009 on December 2, 2009 On December 2, 2009, the Congress ratified Bill 141-2009. The Constitution does not contemplate a procedure to ratify a bill that has been already enacted. 197 In the case of the present congressional bill, this procedure was carried out as a special petition by virtue of the Tegucigalpa-San Jos Accords. Several congressmen disagreed with

The figure of the Vicepresident was later found to be unconstitutional by the Supreme Court of Justice. Originally, the Constitution required the existence of three Presidential Designates which could substitute the President in his temporary or permanent absences. These provisions were modified by a congressional decree. However, the Supreme Court of Justice ruled that the figure of the Presidential Designates was contained in one of the unamendable articles, and therefore could not be reformed by Congress. 196 Elvin Santos renuncia a la Vicepresidencia, LA PRENSA, in http://www.laprensa.hn/Pa%25C3%2583%25C2%25ADs/content/view/full/72982 (last viewed on Feb. 19, 2011). 197 The exception, which is not applicable here, is for constitutional amendments. Under article 373 of the Constitution, constitutional amendments must be passed by two-thirds of the members of the Congress, and then ratified by the same voting margin in a subsequent Congress.

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regard to the form of the ratification, arguing that there must be a separate bill enacted, and not the approval of a motion to ratify, as it was included in the agenda. 198 Even if the bill had been supported by both negotiating parties, which it was not, it is unlikely that the Tegucigalpa-San Jos Accord granted any additional constitutional faculties to Congress. Neither did the ratification provide congressional bill 141-2009 with any more constitutionality than it had initially possessed. While this vote may have had substantial significance as a political statement, it did not alter any of the conclusions of the foregoing constitutional analysis. D. The Militarys Role 1. Factual Summary The earliest instance of military-related participation in the events of 2009 occurred when Secretary of Defense, Edmundo Orellana Mercado, expressed that the Armed Forces would assume the position of supporter of Zelaya Rosaless Fourth Urn initiative. The announcement came during Zelaya Rosaless May 29 televised cabinet meeting, during which Orellana Mercado read aloud Executive Accord 027-2009. 199 The Accord included the following language: Article 1: To order the Armed Forces of Honduras in all its branches to support the National Institute of Statistics in the realization of the national opinion poll approved by the Council of Ministers, putting at its disposition its logistical means and other necessary resources. 200 The chief of the Estado Mayor Conjunto, General Romeo Orlando Vsquez, was present at the meeting and sat next to Zelaya Rosales. 201 He stated that because the armed forces are an apolitical and obedient institution, we have to obey the order within the margins of the law. 202 That same day, Zelaya Rosales reportedly said: Now they have to arrest the General. 203 On June 3, Congress approved a resolution in which it stated that Zelaya Rosales had issued an arbitrary command to the armed forces to support the National Institute of Statistics in the execution of an illegal poll. 204 Also on that date, the Ministerio Pblico
National Congress, Congressional record no. 52 (2009), ss. 12, 86 (comments from Congresswoman Silvia Bessy Ayala Figueroa), 193 (comments from Congressman ngel Edmundo Orellana Mercado). 199 CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, at 28. 200 CSJ-1-7_2, Requerimiento Fiscal Contra Manuel Zelaya Rosales, at 21. 201 See supra note 199. 202 Las FF.AA. estaran cometiendo ilegalidad, LA PRENSA (May 30, 2009) available at http://www.laprensahn.com/content/view/full/213613/. 203 Ahora tienen que capturar al General, desafa el presidente Zelaya Rosales PROCESO DIGITAL (May 29, 2009) available at http://www.proceso.hn/2009/05/29/Nacionales/E.CAhora.tienen/13725.html. 204 El Congreso imprueba la conducta del Ejecutivo, EL HERALDO (April 06, 2009), available at http://www.elheraldo.hn/content/view/full/141359.
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warned the military that they would suffer criminal sanctions for obeying that command as it would be tantamount to ignoring the ruling of the administrative court. At some point between June 3 and June 24, the leadership of the Estado Mayor Conjunto of the Armed Forces decided not to support the poll. While it is difficult to pinpoint the precise event that led them to decline to follow Zelaya Rosaless plan, it appears to have occurred shortly after the Appeals Courts June 18th denial of Zelaya Rosaless amparo 205 and the Administrative Courts issuance of an official letter to the military ordering them to follow its rulings. 206 Military representatives claim that during that period their lawyers decided to analyze the legality of the Fourth Urn initiative and eventually concluded that the poll was illegal and should not be carried out pursuant to Article 323 of the Constitution. On June 24, six days after the Appeals Courts decision, General Vsquez announced to Zelaya Rosales that, while the Armed Forces were prepared to execute his order, the Estado Mayor Conjunto, as advised by their internal counsel, did not think it was possible legally to comply with such an order. 207 Vsquez claims that he approached Zelaya Rosales with the legal problem at that time because he thought the president could still find a diplomatic and legal solution. The Armed Forces sent a note to the Administrative Court stating that they had complied with the judicial order. Later that night, Zelaya Rosales dismissed Vsquez and accepted the resignation of Orellana Mercado. In response the commanders of the army, navy, and air force resigned. The following day, June 25, 2009, General Vsquez sought constitutional protection from the Constitutional Chamber of the Supreme Court on the ground that he was arbitrarily stripped of his position in violation of the law. That same day, the Chamber ordered the provisional suspension of the order terminating him from office, and returning him to his post. 208 Once again in office, General Vsquez took to the television airwaves the next day and explained that the military would have complied with Zelaya Rosaless order to carry out the poll if it were not for judicial decisions declaring the initiative illegal. Also on June 25, the Supreme Electoral Tribunal ordered the Armed Forces to abstain from carrying out the poll. 209 The following day, June 26, the Supreme Electoral Tribunal issued an order to the
Republica de Honduras Congreso Nacional [National Congress of Honduras], Congressional record no. 52 (2009), ss. 11,18 206 Id. at ss. 11, 19-56. 207 See Honduran leader defies top court, BBC News (June 26, 2009), available at http://news.bbc.co.uk/2/hi/8120161.stm. The Legal Military Auditors (Auditora Jurdica Militar) of the Armed Forces had advised Gen. Romeo Vsquez Velsquez, as Chief of the Estado Mayor Conjunto, on at least three separate memoranda dated April 27, June 1, and June 4, 2009, that the Fourth Urn poll was likely illegal and that the Armed Forces could not legally comply with an order to support this poll. See Herberth Bayardo Inestroza Membreo, Opinion, AJMFFAA-23-009, File No. 335, April 27, 2010; Opinion, AJMFFAA-23-09, File No. 423, June 1, 2009; Opinion, AJMFFAA-23-009, File No. 428, June 4, 2009. 208 CSJ-1-13_28, Resolucion de Corte Suprema de Justicia, Sala de lo Constitucional, Notificacion. 209 CSJ-1-11_17, Copias debidamente autenticadas del Tribunal Supremo Electoral.
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Ministerio Pblico to seize all materials related to the poll. 210 In addition, the Contentious-Administrative Court issued a warrant to the military to seize and incinerate all materials for the poll. The Supreme Court also allegedly issued a warrant, which at that point was kept secret, to search Zelaya Rosaless residence and to arrest him. 211 The Supreme Court appointed Lt. Col. Rene Antonio Hepburn Bueso to execute the latter warrant. 212 The Supreme Courts arrest and search warrants are dated June 26, 2009, although they were not made public until June 30. In the early morning of June 28, up to four military squads arrived at Zelaya Rosaless residence. Among them were the leaders of each force, as well as Lt. Col. Hepburn Bueso. The military force gained access to Zelaya Rosaless home. Although it is impossible to know exactly what occurred in that action, it is clear that Zelaya Rosales was detained and driven to an Air Force facility, where he was eventually flown to an air base in Costa Rica. That same day, the judiciary issued a communiqu in which they explained that the military had been ordered to seize and destroy all of the poll materials. They further stated: Finally, the judicial branch states that if the source of todays events is based on a judicial order issued by a competent judge, its execution falls within the parameters of the law, and must be carried out against any illegal obstacle that might arise to prevent Honduras from regaining the rule of law. 213 Marcia Villeda, one of the vice-presidents of Congress, stated in a June 28 statement that the military was ordered to act, and Micheletti Ban, also in a June 28 statement, stated that the military has only fulfilled the duty ordered to it by the Supreme Court, the Attorney Generals Office, and the great sentiment of the Honduran people. 214 Two days later, on June 30, the commanding officers of the Estado Mayor Conjunto issued their own communiqu in which they explained that the raid and arrest of Zelaya Rosales were executed in compliance with the arrest warrant issued by the natural judge. They did not explain why the Armed Forced had removed Zelaya Rosales from the country. Lastly, the Supreme Court issued an additional communiqu on June 30 that included several of the documents that were produced in connection with the two criminal proceedings initiated against Zelaya Rosales. Among the documents included
210 211

See id. CSJ-1-7_5, Requerimiento Contra Manuel Jose Zelaya Rosales y otros, pgs. 93-94. (Arrest

warrant). Id. at 93. Supreme Court Official Communiqu, (June 28, 2009), http://www.poderjudicial.gob.hn./general/noticias/comunicado_situacin. 214 Michelleti sucede a Mel, LA TRIBUNA (June 29, 2009), available at http://www.latribuna.hn/2009/06/29/micheletti-sucede-a-%E2%80%9Cmel%E2%80%9D/
213 212

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were the arrest and search warrants. Nothing in either warrant specifically authorized the expatriation of Zelaya Rosales. The warrants were dated June 26, although they were not made public in any way until June 30. On July 8, 2009, Vsquez would explain in an interview that he acted on behalf of an inter-institutional consensus. He also stated that someone was giving the orders, and that the military had to comply with them because the constitution commands the armed forces to protect the rule of law. 215 The military did not assume power in the aftermath of Zelaya Rosaless removal. They did, however, play a role in enforcing curfews and other measures announced by the new government. On January 6, 2010, Prosecutor General Luis Alberto Rub indicted six military leaders for the expatriation of Zelaya Rosales General Vsquez, air force commander Luis Javier Prince, army commander Miguel ngel Garca, naval commander Juan Pablo Rodrguez, high command sub-chief Venancio Cervantes, and brigade general Carlos Antonio Cullar. Less than three weeks later, on January 26, 2010, the Supreme Court dismissed the charges against all defendants. The court based its decision on its conclusion that prosecutors could not establish that the defendants acted with the malice that is required for a criminal conviction. The Court stated that the defendants acted so as to prevent a situation of great danger, real and imminent, that having continued would have signified the institutional collapse of the State, ungovernability, and a confrontation between Hondurans, with the consequent loss of valuable human lives . [B]eing between these [risks], [the military officers] did not have the deliberate intention to incur criminal consequences, nor to occasion a harm to Mr. Manuel Zelaya Rosales. 216 A special Court of Appeals appointed from members of the Supreme Court affirmed on February 22, 2010. 217 The Ministerio Pblico filed an amparo against the final decision of the Supreme Court on April 23, 2010, and that process was still ongoing as of January 2011. 218 2. Legal Positions of the Relevant Actors There are two important legal issues in connection with the militarys role in this crisis. First, whether the Estado Mayor Conjunto acted legally when it refused to follow Zelaya Rosaless orders with respect to the Fourth Urn. Second, whether the military personnel who apprehended Zelaya acted legally when they seized Zelaya Rosales and removed him from the country. On the first issue, there is no dispute that under Articles 278, 321, and 323 of the
Gobierno golpista hondureo no ha podido explicar por qu expulsaron del pas a Zelaya Rosales. (Television interview of Jose Miguel Insulza, Secretary General of OAS, and Romeo Vsquez, former Chief of the Honduran Armed Forces), CNN en Espaol (July 8, 2009), available at http://www.youtube.com/watch?v=dqA2HLbgoTU. 216 CSJ-1-11_7-Audiencia Inicial, Juez Natural Jorge Rivera Avils, Otros, at 46-47. 217 CSJ-1-11_57, Resolucin de Corte de Apelaciones Designada por la Corte Suprema de Justicia. 218 CSJ-1-11_60, Accin de Amparo ante Sala Constitucional de la CSJ por el Ministerio Pblico.
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Constitution, the Armed Forces cannot comply with an illegal order. Therefore, the disagreement comes down to whether Zelaya Rosales's orders to have the military participate in the Fourth Urn process were legal or illegal. On the second issue, the position of those who believe that the military's removal of Zelaya Rosales from the country was illegal state that Article 102 of the Constitution prevents the expatriation of Honduran nationals. Some who have supported the military's actions have emphasized that Article 272 gives the military the duty to "defend the territorial integrity and sovereignty of the Republic, maintain peace, public order and the rule of the Constitution, the principles of free suffrage and alternation in the exercise of the Presidency of the Republic. They argue that this provision may have justified the militarys action in removing Zelaya Rosales from the country. 3. Legal Analysis a. Military Refusal to Assist with the Fourth Urn The President has the constitutional authority to take command of the Armed Forces and to take necessary measures for the defense of the Republic. 219 He further exercises direct command of the Armed Forces in his capacity as Commander General. However, there are important constitutional limits to the president's power over the Armed Forces. Article 278 of the Constitution states that [t]he orders imparted by the President of the Republic must be obeyed and executed with respect to the Constitution of the Republic and the principles of legality, discipline, and military professionalism. Moreover, Article 321 states that [State officials] do not have more powers than those expressly conferred by the law. Any act that they execute outside of the law is null and implicates responsibility. Furthermore, Article 323 states that Functionaries are depositories of authority, legally responsible for their official conduct, subject to the law and not superior to it. No functionary or employee, civil or military, is obliged to follow an illegal order or an order that involves the commission of a crime. Thus, the issue is whether Zelaya Rosaless orders with respect to the Fourth Urn are legal. As discussed above in section IV.A, Zelaya Rosaless orders were illegal. As a result, the leaders of the Armed Forces found themselves in a position where they were constitutionally allowed (and in fact obligated) to disregard the presidents order. Thus, the commanding officers observed the law in their refusal to assist with the Fourth Urn. b. Militarys Removal of Zelaya Rosales from the Country Turning now to the issue of whether the militarys removal of Zelaya Rosales was legal, the pivotal provision is Article 102 of the constitution, which states that No Honduran may be expatriated or sent by the authorities to a foreign state. The Criminal Code formalizes this provision, indicating that violations of the norm will result in
219

CONST. HOND., article 272, sec. 16.

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criminal sanctions. 220 There are no convincing arguments that would provide a legal justification for Zelaya Rosaless removal. Regardless of whether Zelaya Rosales had already been somehow stripped of his presidential powers prior to his removal pursuant to Article 239, he was still a Honduran citizen and therefore continued to enjoy the protections of Article 102. We note that it is unclear whether the military received orders from another branch of government to remove Zelaya Rosales from the country. It is also unclear whether the military had any discussions or consultations with any other institutional or political actor regarding the removal. If any other institutional or political actors had been involved in the removal, these actors likely also acted illegally in that regard. Moreover, the Armed Forces acted illegally in removing Zelaya Rosales from the country even if they had received strict orders from another branch of government to do so. As discussed above, illegal orders are void, and the military may not follow them. Any order to expatriate Zelaya Rosales would be illegal. We note that the military officers were exonerated in their criminal trial in January 2010. We express no opinion on this criminal case. Our analysis is confined to the legality of the military's actions. The question of whether military officials are criminally responsible for the expatriation of Zelaya Rosales is distinct from the question of whether his expatriation was legal. Finally, we address briefly Article 272 of the Constitution, which gives the military the duty to defend the territorial integrity and sovereignty of the Republic, maintain peace, public order and the rule of the Constitution, the principles of free suffrage and alternation in the exercise of the Presidency of the Republic. The same provision states that the military is an institution that is essentially professional, apolitical, obedient and non-deliberative. This provision must also be interpreted in light of Article 321, which states that [State officials] do not have more powers than those expressly conferred by the law. Any act that they execute outside of the law is null and implicates responsibility. Article 272 thus gives the military duties to defend the State. But it does not give the military any extra-legal or extra-constitutional powers in order to carry out this duty. The duties stated in Article 272 must be carried out in adherence to the law and the other provisions of the Constitution. The Armed Forces violated Article 102 of the constitution when it removed Zelaya Rosales from the country. Article 272 cannot transform this unconstitutional act into a constitutional one.

220

COD. PEN., art. 133, sec. 8 (Hond.).

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V. Recommendations
Peaceful transition, the key to functioning democracy, is the single most difficult feature for a constitution to manage. Many constitutions are not well-crafted to handle problems associated with irregular transitions. In particular, there is always the risk that irregularity insufficiently covered by a constitution will precipitate constitutional crisis: the state of affairs where the meaning of the constitution is genuinely in doubt, and it is genuinely unclear what institution, if any, has the lawful right to resolve that doubt. One context where such a problem may arise and where it did in June 2009 is when efforts are made to alter an entrenched constitutional provision. The events of June 2009 involved three distinct dangers to democracy. All are difficult for a constitutional regime to manage, and all have been common both within Latin American and internationally. The first is the threat of an elected official, particularly a president, using his power to undermine the institutional order and therefore weaken or destroy democracy from within. A constitution must provide adequate procedures for preventing these acts and if necessary for removing the official peacefully. The second is the threat of the military becoming involved in politics, especially to topple democratically-elected institutions in an irregular fashion. The constitution must manage crises so that the military does not become a tool of political actors or a de facto arbiter of institutional disputes. The final danger is the lack of clarity on exactly what roles different political institutions have during a crisis. Often constitutions do not provide clear answers to the questions of what tasks institutions may or must take on, and often institutions have conflicting or redundant functions. Moreover, constitutions rarely provide a clear process or arbitrator for deciding conflicts between institutions in these situations. Ideally, a constitution would provide a detailed procedural roadmap designating which institutions are responsible for enforcing the existing constitutional regime should it come under threat. Such a roadmap would specify a formal, public procedure for a particularly designated institution to interpret the existing constitution, in order to ascertain whether the government official was in fact in the process of violating the constitution. The roadmap would also specify a particular institutional procedure for trying, sanctioning and, if necessary, removing government officials who deviate from mandated constitutional norms. The Honduran Constitution seems not to have provided a sufficiently clear roadmap of institutional responsibility for addressing the situation of a government official such as the president, who apparently attempted to circumvent positive constitutional norms in order to seek constitutional change and the entry into a new regime. The result of this lack of clarity is that the processes of removal can be subjected to the criticism that they did not conform with express, formal, and public constitutional procedures. In our view, an independent observer could conclude that all the government actors involved in the events of June 2009 acted extraconstitutionally in various ways. 69

President Zelaya Rosales violated express constitutional norms that prohibited attempting to amend the constitution. Other institutions then failed to follow express constitutional norms in removing President Zelaya Rosales from office. The result of this situation is that debate about the constitutionality of President Zelaya Rosales's removal may appear to be transformed into a purely political question, rather than a legal-constitutional one. The most honest and objective analysis may simply be to identify the limitations and failures of the constitutional text that gave rise to the situation and to focus on drafting new constitutional provisions that provide clear and specific guidance for future situations. As this report suggests, all of the governmental actors whose behavior has been considered here acted to some degree outside the bounds of the Honduran constitution. The result was an extended constitutional crisis, one which had substantial costs to the Honduran government and public, and posed serious challenges to the rule of law. How can a series of events like those of June 2009 be avoided in the future? Our recommendations focus on three different aspects of the crisis. First, we make a series of recommendations aimed at clarifying the responsibilities of the different branches of government and the military during a crisis in which the constitutional order is threatened. Our recommendations aim at providing greater procedural and institutional clarity within the text of the constitution. To the extent possible, constitutional language should be drafted so that the ordinary reading public can easily understand the allocation of responsibilities and thus provide the ultimate check on governmental actors. Second, we recommend changes to strengthen the rule of law during emergency situations. These changes aim at allowing for the peaceful resolution of institutional disputes and the avoidance of human rights abuses during emergency situations. To this end, we recommend changes to the judiciary and to the provisions governing emergency powers. Finally, we recommend consideration of improvements to the constitutional provisions governing constitutional change. The goal here is to draft a clearer and more stable scheme of what can and cannot be done through various processes aimed at altering the constitutional text. A. Recommendations Situations Delineating Institutional Responsibility During Crisis

Our first set of reforms is aimed at delineating institutional responsibility during a crisis, such as the removal of the chief executive. We suggest reforms to clarify the process of presidential removal, to clarify the powers of Congress during a crisis situation, and to more clearly delineate the role of the military. 1. Presidential Removal
a.

Substance of Forced Removals 70

When the current Constitution of Honduras was enacted in 1983, the most popular way to remove a sitting president among the countries of Latin America was through military force. In the nineties, however, the utilization of formal, internal removal mechanisms such as presidential impeachment became the dominant method for presidential removal, and the trend has continued into the new millennium. 221 Removal of this sort has the potentially salutary effect of leaving democratic regimes intact even after sudden transfers of power. The constitution does not specify in clear terms what actions constitute substantive grounds for the forced removal of a sitting president from office. It should do so as specifically as possible. Abstractions (such as the U.S. Constitutions high crimes and misdemeanors) are extremely unhelpful. To the extent possible, the constitution should specify the specific sorts of actions that would trigger removal. 222 The constitution should distinguish between two potentially distinct categories: crimes specified by statute and subject to prosecution and punishment in the courts; and other actions that would justify removal from office, which should be specified in the constitution, not by statute. The reason this distinction is important is that, if the conditions for removal are specified by statute, then they can be changed by ordinary lawmaking procedures. This would potentially distort the relation between the constitution as a source of higher law, and the ordinary law passed by the legislature. Thus, the constitution should specify whether the commission of ordinary crimes (corruption, theft, murder, or sexual offenses) would constitute grounds for removal. It should separately specify whether an action that is not necessarily criminal, but is prohibited by the constitution for example, attempting to amend unamendable constitutional provisions constitutes grounds for removal. 223 To the extent that such
See ANIBAL PEREZ-LINAN, PRESIDENTIAL IMPEACHMENT AND THE NEW POLITICAL INSTABILITY IN LATIN AMERICA 1-3 (2007). 222 For example, the Ecuadorian constitution of 2008 allows a president to be removed only when one of the following stated grounds is met: (1) crimes against the security of the state, (2) crimes of extortion, bribery, embezzlement, or illicit enrichment, (3) crimes of genocide, torture, forced disappearance of persons, kidnapping, or homicide on political or moral grounds, (4) for having taken up duties that do not come under his/her competence, after a favorable ruling by the Constitutional Court, and (5) for severe political crisis or internal unrest. CONST. ECUADOR, arts. 129-30. We do not necessarily intend to endorse these specific provisions as good ones for the Honduran context. However, we do think that a specific list to the extent possible is better than a vague one. The list of provisions found in the Ecuadorian constitution with the exception of the last item are fairly specific. 223 Again, the Ecuadorian Constitution of 2008 distinguishes impeachment of the president, which is used to remove the president for criminal acts committed by him, from removal of the president, which is used to remove the president in all other situations. The first category includes: (1) crimes against the security of the state, (2) crimes of extortion, bribery, embezzlement, or illicit enrichment, (3) crimes of genocide, torture, forced disappearance of persons, kidnapping, or homicide on political or moral grounds, CONST. ECUADOR, art. 129. The second category includes: (1) for having taken up duties that do not come under his/her competence, after a favorable ruling by the Constitutional Court, and (2) for severe political crisis or internal unrest. CONST. ECUADOR, art. 130. We do not necessarily endorse these categories for Honduras. But it does show that a Constitution can clearly establish the criminal and non-criminal actions that can lead to the presidents removal.
221

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constitutional violations are intended to be considered as constituting the crime of treason, the text should say so specifically.
b.

Procedure for Forced Removals

The procedures for forcibly removing a president from office are not clear in the present Constitution. 224 These should be stated with particularity in the Constitution. At present, the Criminal Code and the Code of Criminal Procedure lay out the procedure to be used against high officials, including the sanctions of special or general disqualification. 225 The reason to specify removal procedures in the Constitution is that removal necessarily involves the balance of powers between the different organs of government. An ordinary statute may be changed by the legislature, which leaves the possibility of procedures being altered or changed in the midst of a presidential transition. Some considerations that the Constitution should address include: What institution should initiate removal? The prosecutor may be the right party for ordinary crimes. But that does not mean there should be no role for Congress when the actions justifying removal are not ordinary crimes, but rather violations of the constitutional order. What institution should judge whether removal is justified? The lower courts are unlikely to be able to manage a case of such magnitude. The Supreme Court may be able to do so. But removal may also have a political component that would justify providing a role for Congress. This may be particularly true if the grounds for removal included actions that were not considered crimes under ordinary law. What steps for trial should be taken? Should the trial be before a regular court or a special tribunal? The public nature of removal procedures is important to legitimate the process and reduce the possible taint of illegality. The constitution should require that all stages of the removal procedure be public.

Thus, the constitution says that the Supreme Court has the power to [K]now the processes initiated against the highest functionaries of state and congressional deputies CONST. HOND., art. 312, cl. 2. Congress is given power to approve or disapprove of the administrative conduct of the executive branch along with others like the judiciary, electoral court, etc. Id. art 205, cl. 20). However, these provisions do not expressly mention removal. 225 Upon receiving the indictment from the prosecutor, the Supreme Court selects one of its members as juez natural for the pre-trial stages of the suit. A three-member panel of the Court then hears the trial, and the appeal is before the plenary of the court. COD. PROC. PEN., arts. 414-419 (Hond.). The Code of Criminal Procedure also provides that an official can be suspen[ded] in the exercise of the post, when the crime is one against public administration during the pendency of the trial. COD. PROC. PEN., art. 173, cl. 12 (Hond.). Finally, the Criminal Code allows for the Court to impose as a penalty either special or general disqualification the former removes and disqualifies the convicted from holding the particular post she has held for a set period of time, while the latter includes any government post, as well as a full loss of political rights, for some period of time. See COD. PEN., arts. 48-49 (Hond.). Anyone subject to a term longer than 5 years in prison is automatically subject to a general disqualification for the length of the term plus the probationary period. See COD. PEN., art. 62 (Hond.).

224

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How will the procedures operate under crisis conditions when time is short? The ability to quickly suspend a president for the duration of the removal process may be important in these cases. Will removal be immediate or must it wait until the procedure is over? Is temporary suspension a possibility? The current Code of Criminal Procedure states that officials may be suspended during trial, but it appears to allow this only for crimes against public administration. 226 Removal of officials is permitted as a sanction after trial and conviction for a much broader set of crimes. It is not clear to us why temporary removal should be permitted only for the subset of crimes against public administration. Temporary suspension should be allowed for all removable offenses, for the subset of such offenses that is especially grave, or in cases where there is a special need for urgency because of national crisis. Several constitutions have a removal process where the congress votes to move the removal process forward, which sends the process to the Supreme Court for trial. The effect of the congressional vote is also to suspend the official for the duration of the trial. 227 Who enforces the decision to remove? What procedures make it clear to the enforcers and the public the decision has been taken legitimately? In considering all of these questions, we emphasize three points. First, removal of a president and trial of that president for criminal matters can be separate processes. At present, there is no distinction between the two concepts in Honduran law. High officials may be tried for crimes before the Supreme Court, and general or special disqualification (which involve removal) are two possible sanctions that will be applied upon conviction. 228 These sanctions are applied concurrently with other sanctions, such as prison terms. We see several problems with the current system. It creates vagueness about when the sanctions of general or special disqualification will be applied. There appear to be a range of cases where the Supreme Court would have discretion in deciding whether or not to impose general or special disqualification as part of the sentence upon conviction. 229 Also, the factors involved in sentencing an official to prison for a crime are different from the factors involved in removing an official from office. The process of removing an official from office may involve a political component not present in the
COD. PROC. PEN., art. 173, cl. 12 (Hond.). Venezuela and El Salvador are two countries with this design. See, e.g., COD. PROC. PEN., art. 380 (Ven.) (noting that the official will be suspended during the process); CONST. EL SAL., art. 237 (As soon as the Legislative Assembly or the Supreme Court of Justice declares that there are grounds for trial, the offender shall be suspended from the exercise of his functions and may not continue in his position for any reason whatsoever. If acquitted, he shall resume the exercise of his functions, if the position is one of those that is conferred for a determined time and the period of his election or appointment has not expired.). 228 See COD. PROC. PEN., arts. 414-19 (Hond.) (laying out the process for trying high officials); COD. PEN., arts. 48-49 (Hond.) (defining the criminal penalties of general and special disqualification). 229 In some specifically delineated cases the sentencing judge is not given discretion. For example, anyone subject to a term longer than 5 years in prison is automatically given a general disqualification for the length of the term plus the probationary period. See COD. PEN., art. 62 (Hond.). This suggests that in other cases, the sentencing judge retains discretion as to whether or not to impose general or special disqualification as part of the sentence.
227 226

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process of sentencing an official from jail. Moreover, it might be desirable for presidential removal to have distinct procedural features, so long as those features also satisfy due process safeguards. Lastly, it may be wise to separate these two processes in order to eliminate any ambiguity as to the causes and procedure for removal. 230 Second, the removal process for presidents perhaps should be handled differently from the removal process for other state officials. Currently, the Code of Criminal Procedure lays out one removal procedure for all high officials: all are tried by the Supreme Court using a special procedure. 231 As previously noted, these procedural provisions should be put in the Constitution and not merely in an ordinary law. But we also think that the removal procedure for the president (and perhaps several other officials like the vice president and members of the Supreme Court) should perhaps be different from the removal process for other high officials. The removal of the highest constitutional officers of State, especially the president, involves a political dimension that may not be present for other state officials. It also presents problems of social disruption that are only rarely present in the removal of other officials. For example, congressional involvement may be appropriate when removing the president, but inappropriate for the removal of some other state officials. 232 Third, it may be appropriate to include some role for Congress in the removal process involving the president. As mentioned, the removal of high officials may have an inherently political dimension that would make a congressional role appropriate, and this dimension is often maximized in the case of presidential removal. This may be particularly true if removal were allowed for acts that are not ordinary crimes. The Honduran constitution is unusual in giving the congress no role in the presidential removal process; other constitutions in Latin America give congress some role in the removal process. 233

For example, the Argentine constitution places removal in the hands of the Congress, and states the following about its effect: The judgment shall not extend further than to remove the accused person from office, and to disqualify him to hold any office of honor, trust, or profit in the Nation. But the party declared guilty shall, nevertheless, be subject to accusation, trial, and punishment according to law before the ordinary courts. CONST. ARG., art. 60. The Chilean constitution similarly places removal in the hands of Congress and states of its effect: Upon pronouncement of the declaration of guilt, the accused is removed from his position and he may not hold other public positions, whether subject to public election or not, for a period of five years. The official declared guilty shall be subject to judgment by the competent court, in accordance with terms of the law both to ascertain the applicable penalties prescribed for the crime, if any, and to establish civil liability for the harm and damage caused to the State or to private individuals. CONST. CHILE, art. 49, cl. 1. Thus, other constitutions create clear separation between the process of removal and the process of criminal (or civil) trial. 231 See COD. PROC. PEN., arts. 414-419 (Hond.). 232 Many Latin American constitutions have a special removal procedure applicable only to the president and a small group of similar officials. For example, the Argentine removal procedure applies only to the president, vice-president, cabinet ministers, and magistrates of the Supreme Court. Const. Arg., art. 53. The Colombian removal procedure applies only to the president, the magistrates of the high courts, and the chief prosecutor. CONST. COL., art. 178, cl. 3. 233 See infra notes 235-237.

230

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We recognize that in Honduras, Congress had a role in the removal process for all high officials including presidents prior to 2003. After the prosecutor presented an indictment to Congress, the Congress was charged with determining whether the high officials immunity should be taken away. If the Congress voted to remove the high officials immunity, then the case would go before the Supreme Court. This provision was changed because of concerns about congressional corruption and about Congress improperly protecting some officials from trial. 234 This concern could be mitigated if the process of removal were separated from the process of criminal trial, and if the process for the removal of the president (and perhaps several similar state officials) were separated from the process for the removal of most state officials. Congressional involvement is most appropriate for removal, rather than criminal sanctioning, and for presidents (and similar officials) rather than other state officials. This is because presidential removal, or even the initiation of removal proceedings, has immediate political ramifications that a majoritarian political body such as Congress is often best equipped to mediate. A congressional role in the removal process involving the president could take several different forms. There are three major models in Latin America, any of which may be appropriate for Honduras. In the first model, the congress has the power to determine whether the removal process should go forward. If it votes affirmatively, the process generally goes to the Supreme Court, which determines whether the president should be removed. 235 The second model is the same as the first, except the effect of the congresss vote is to suspend the president during the trial before the Supreme Court. 236 The third model places the entire removal power in the hands of the congress generally a lower house of the congress authorizes the removal process to go forward, and the trial occurs before the upper house of the congress. If the upper house votes for removal by the required margin (general a supermajority), then the president is removed. 237

See LEON ROJAS CARON, LA CONSTITUCION HONDUREA 526 (2006). Costa Rica, Guatemala, and Nicaragua are examples of this first approach. See CONST. COSTA RICA, art. 121, cl. 9 (stating that Congress has the power to [a]dmit or refuse any impeachment made against the person exercising the Presidency of the Republic, the Vice Presidents, members of the Supreme Branches and Diplomatic Ministers, declaring by a vote of two thirds of the entire Assembly whether or not there are grounds for legal action against them, placing them, if there are, at the disposition of the Supreme Court of Justice for prosecution thereof); CONST. GUATEMALA, art. 165, cl. h; CONST. NICARAGUA, art. 130. 236 Venezuela and El Salvador have this design. See, e.g., COD. PROC. PEN., art. 380 (Ven.); CONST. EL SAL., art. 237 (As soon as the Legislative Assembly or the Supreme Court of Justice declares that there are grounds for trial, the offender shall be suspended from the exercise of his functions and may not continue in his position for any reason whatsoever . If acquitted, he shall resume the exercise of his functions, if the position is one of those that is conferred for a determined time and the period of his election or appointment has not expired.). 237 This design exists, for example, in Argentina and Chile. See CONST. ARG., arts. 53, 59, 60 (requiring a two-thirds Senate supermajority for removal); Const. Chile, art. 48-49 (requiring a two-thirds Senate supermajority for removal). The Colombian Constitution uses a hybrid design depending on the type of offense for which the president is being removed. Where the basis for removal is a crime in the exercise of functions or unworthiness for bad conduct, the final trial for removal occurs before the Senate, which can remove the president by a two-thirds supermajority. Where the basis for removal is a common crime, then the final trial for removal occurs before the Criminal Chamber of the Supreme
235

234

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c.

Resignation and Other Causes of Removal

Article 205, clause 12 of the Constitution gives the Congress the power to accept or not the resignations [of the President and Vice-President], and to fill their vacancies in cases of the absolute absence of one of them. 238 These congressional powers are unclear, and should be better specified in the Constitution. The Constitution should specify a procedure for determining when a valid presidential resignation has occurred. For example, this might require as a precondition a congressional finding that the alleged resignation letter is valid and was actually signed by the president without any duress or other incapacitating factor. Another alternative may be to require a ratification of the resignation vote by the president. It might also require the assent of some other institution of state, such as the Supreme Court. 239 Also, the concept of absolute absence of the president should be better defined in the text. The term should be replaced by a clearer set of conditions. For example the Constitution might say that the Congress can fill a vacancy whenever the president is deceased, physically or mentally incapacitated, or has fled the country and has not returned after some set period of time. 240 Of course, the procedures undergirding these grounds for removal should be either identical to or as exacting as the procedures for forced removal. Otherwise, these grounds might be used as pretext when forced removal appears unlikely to succeed through existing legal channels. Lastly, it might be prudent for the Constitution to require a two-thirds supermajority for any congressional vote to fill a presidential vacancy or to accept his resignation. 241
d.

Self-Executing Constitutional Provisions for Forced Removal

Article 239 of the Constitution provides that [t]he citizen who had exercised the title of the Executive Power cannot be elected President or Vice-President of the Republic. He who breaks this disposition or proposes its reform, along with those that support him directly or indirectly, will immediately cease in the exercise of their respective charges and will remain ineligible for ten (10) years for the exercise of all public functions. This provision is arguably self-executing: under one possible
Court, after approval of the action by both the lower and upper houses of the Congress. See CONST. COL., art. 175. 238 CONST. HOND., art. 205, cl. 12. Also, article 242 states: In the temporary absence of the President of the Republic, the Vice-President will substitute in his functions. If the absence of the president is absolute, the Vice-President of the Republic will exercise the title of the Executive Power for the rest of the constitutional period. But if there is also an absence of the Vice-President of the Republic, the Executive Power will be exercised by the President of the National Congress, and in the absence of him, by the President of the Supreme Court of Justice for the remaining time in the constitutional period. 239 Article 145 of the Ecuadorian Constitution requires that certain conditions resulting in a change of presidential administration be approved by the Constitutional Court as well as by a two-thirds majority of the Congress. See CONST. ECUAD., art. 145. 240 Even though the Constitution, see CONST. HOND., art. 205 cl. 13, suggests that the president and the vice-president cannot leave the country for more than 15 days without congressional authorization, it does not seem that an unauthorized absence would constitute an absolute absence. 241 See id.

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interpretation it allows any official, including the president, to be removed from her post immediately, and by anyone, without any procedure or process. Such a self-executing provision would be extremely unusual in comparative constitutional law. It has very undesirable effects. It perhaps allows civilian or military officials to remove a president or other high officer without previously invoking any legitimate or public removal process, such as a congressional or Supreme Court trial. We believe that this provision should be reformed to make clear that removal for violating its prohibition could occur only after following the normal, constitutional removal process involving a president. The provision could state explicitly that the actions stated are grounds for removal, 242 but only after the removal process described elsewhere in the Constitution has been followed. 2. The Powers of Congress

Article 205, clause 10 of the Honduran Constitution gives the Congress power to interpret the Constitution in ordinary sessions, with two-thirds of the votes of the totality of its members. Articles 373 and 374 of the Constitution cannot be interpreted utilizing this procedure. One possible reading of the provision, supported by historical practice, is that Congress may exercise this power by passing a formal declaration in the form of a law. Yet this practice is not expressly enshrined in the constitutional text. This creates the possibility for the argument that whenever Congress acts, it necessarily acts in accordance with the Constitution. It also creates the possibility for Congress to claim after the fact that it has acted to interpret the Constitution. Logically this would suggest that the Constitution would not limit Congress at all; in fact, on this view Congress would be above the Constitution. We recommend amending the Constitution to specify how and when this Constitutional power is to be exercised. In our opinion it should be clear whether Congress can interpret the Constitution implicitly through practice, or whether interpretation must take place formally, following an official declaration in the form of a law. A related issue that ought to be resolved is the relation between judicial interpretation of the Constitution and this congressional power in case of conflict between them. There is considerable confusion about who has final interpretative authority of the constitutional text. The Constitutional Chamber of the Supreme Court has the power to hear unconstitutionality actions against laws, and the effects of those decisions is general (ie. the norm is struck from the legal order). 243 Meanwhile, as already stated, article 205 gives the Congress power to interpret the constitutional text.
It could also state more clearly the grounds for removal. The current wording of Article 239 makes its sweep very broad. It is possible, for example, that rather innocuous conduct could fall within its prohibition on propos[ing] reform of presidential term-limits. We recommend reconsideration of the language of Article 239 for the sake of determining whether it sufficiently delineates illegal conduct. 243 CONST. HOND., art. 316, cl. 2 ([T]he decisions in which the unconstitutionality of a norm is declared will be of immediate execution and will have general effects. Therefore, they will derogate the
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This raises the question, for example, of what would occur in the case that the Congress had issued an interpretation of the Constitution allowing a certain law to be constitutionally issued, but the Court were subsequently to hold that law unconstitutional. 244 There are several ways to resolve such a conflict. First, the Constitution could abolish the Congressional power to interpret the Constitution. Congressional power to interpret the constitutional text is now an unusual feature of regional constitutions. This does not necessarily make such a power undesirable, if properly clarified. Second, the Constitution could state explicitly that the Congressional power to interpret the Constitution was final and binding on any subsequent actions by the judiciary. Third, the Constitution could state that the Supreme Court retained the power to determine whether the interpretations issued by the Congress were proper interpretations or were instead de facto changes to the text. Finally, as noted above, Congress might be given a role in the removal process for presidents and similar officials. If Congress were given such a role, that role and its procedures should be clearly stated in the constitutional text. 3. The Role of the Military

In many countries regionally and globally, the military possesses the de facto power to upend the existing constitutional regime. The military has often played a deeply problematic role in Latin American history. Historically, the military has been the prime mover in removing elected governments and in replacing those governments with military regimes, sometimes for long periods of time. It has also at times been used as a tool for one elected branch of government (usually the president) to weaken other democratic branches of government. There is thus a well-known and well-justified fear within the region of military involvement in politics.

norm, which should be communicated to the National Congress, who will publish it in the National Gazette.) 244 In a recent decision, the Constitutional Chamber of the Supreme Court struck down an effort to amend Article 210 of the Constitution to make congressional interpretations of the Constitution not subject to the presidential veto. Language in that decision and its clarification suggests that the Supreme Court sees itself as the final arbiter of the Constitution. The Court also suggests that it would have the power to review congressional interpretations of the Constitution for constitutionality. In a clarification of its decision, the Constitutional Chamber stated that [t]he Supreme Court of Justice is the definitive and final interpreter of the Constitution of the Republic as derived from articles 303, 304, 316 in relation to 184 of the constitutional text. It must be clear that the definitive and final interpretation is subsumed within the inherent faculties of judges and magistrates in their functions for sentencing and execution of sentences; but this does not invade or diminish the powers of the National Congress with regards to the procedures for reform and authentic interpretation, which must be done according to the formal and substantive directives that the Constitution of the Republic dictates. Constitutional Chamber, Supreme Court of Justice, Unconstitutionality Review Decision No. 2895-02, May 12, 2003, and Clarification, May 15, 2003. Whatever the Courts interpretation of the Constitution, the key point is that the constitutional text itself is unclear. There is no clear answer in the constitutional text as to who has final interpretive authority. The constitutional text should be clarified on this issue.

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There are two related dangers. The first is that the military may be used as a political instrument by institutions or actors within the State for the purpose of consolidating power or reducing the power of other institutions or actors. The second is that the military will come to see itself as empowered to save the state during crisis periods via extra-constitutional means. In this case, there is evidence that several different institutional actors prodded the military towards excessive intervention in politics in situations where the military lacked legal or constitutional authority to act. This is perhaps the most troubling aspect of the current controversy. It is important that the Constitution and criminal laws explicitly prohibit political institutions and actors from using the military as a threat against other institutions. Such a prohibition must be backed by significant sanctions, such as removal from office. Military actors involved in such actions must also face serious sanctions. A well-designed constitution should specify the principle of civilian control.245 But it must also do more, and specify the lines of command to the military. In the case of crisis, to whom is the military responsible? Specificity on these questions can reduce (but not of course eliminate) the danger of the military acting as the de facto arbiter of constitutional conflict among branches of government. The Honduran constitution should also continue to make clear two important principles. The first is that all officials are limited by law and possess no extra-legal power. 246 The second is that civil and military officials may not obey illegal or unconstitutional orders. 247 These principles may be particularly important in situations, such as this one, where the military is utilized to perform delicate tasks related to the criminal process against a sitting president. There should be consideration of the critical question as to whether military involvement in the trial or removal process of a sitting high official is desirable, and under what circumstances. If the military will have some involvement in the criminal trial or removal of a high officer of state, that role must be clearly delineated within the Constitution and applicable statutory laws. Currently, the Honduran Constitution and laws are very broad, but they unclear as to when the military can be

Article 272 of the Honduran Constitution states that the military must defend the territorial integrity and sovereignty of the Republic, maintain peace, public order and the rule of the Constitution, the principles of free suffrage and alternation in the exercise of the Presidency of the Republic. It further provides that the military is an institution that is essentially professional, apolitical, obedient and nondeliberative. 246 Article 321 of the Honduran Constitution states: The servants of the State do not have more faculties than those expressly conferred by law. All acts executed outside of the law are null and implicate responsibility. 247 Article 323 of the Constitution states that [t]he functionaries are depositories of authority, legally responsible for their official conduct, subject to the law and never superior to it. No functionary or employee, civil or military, is required to comply with illegal orders or with those that involve the commission of a crime. Further, article 278 states that [t]he orders that the President of the Republic imparts must be obeyed and executed with respect to the Constitution of the Republic and the principles of legality, discipline, and military professionalism.

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involved in enforcing judicial orders, including orders in criminal cases involving high officials. 248 If the military (as opposed to the police) can be used to execute an arrest warrant or removal of a high official, then the Constitution should make clear in exactly what circumstances such a role can be given. The Constitution should specify who is authorized to give such an order, and when the military can be used to execute it. Either the Constitution or applicable laws should likely also provide procedural safeguards to ensure that the use of military power is not abused. For example, the laws might provide that civilian judges must accompany the military to execute the arrest warrant or removal order. There is also some suggestion in this case that the military saw itself as empowered to arbitrate a crisis between institutions of state. Article 272 of the Constitution states: The armed forces of Honduras are a permanent National institution, essentially professional, apolitical, obedient, and nondeliberative. They are constituted to defend territorial integrity and national sovereignty, maintain peace, public order and the power of the Constitution, the principles of free suffrage and alternation in the presidency. The first sentence of this provision emphasizes the important points that the military is an apolitical and non-deliberative institution. The second sentence of this provision is potentially dangerous. It may be interpreted although we do not believe this is the correct interpretation to give the military some vaguely defined powers, perhaps extraconstitutional, to take action in the event of a crisis of State. We recommend that Article 272 be amended. At a minimum, it should make clear that the military may not take illegal or unconstitutional actions in carrying out these duties, nor should it allow the military to take on competences that are already constitutionally or legally assigned to other institutions. Violations of this prohibition, in the interests of public necessity or some other similar end, should be backed by meaningful sanctions. B. Recommendations Strengthening the Rule of Law During a Crisis Our second set of reforms aims at ensuring that the rule of law is adequately protected during severe crises of state. To this end, we make recommendations relating to the structure and powers of the judiciary. The judiciary is an important arbiter between institutions during crises, and it is also a critical guardian of human rights in these situations. We also make recommendations relating to the regime governing states of exception.
Article 306 of the Constitution states that [t]he jurisdictional organs will require, in necessary cases, the assistance of the Public Forces for the compliance of their resolutions . This provision does not indicate what constitutes a necessary case[], nor does it contain specific rules for critically important cases like trials against high officers of state.
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1.

The Role of the Judiciary

The judiciarys primary strengths in times of crisis are its abilities to arbitrate between institutions of state and to safeguard human rights. In order to carry out these tasks properly, the courts must decide cases in a way that is legitimate and guarantees public confidence, must have adequate powers to receive cases quickly and to resolve them clearly, and it must have adequate independence from political forces.
a.

Transparency and Legitimacy of Judicial Action

The judiciary is the most important guardian of the rule of law. Its proceedings must, to the extent possible, be public and transparent. This is especially true when matters of national import are at issue. Whatever advantages are gained from holding judicial proceedings in secret will be outweighed by the rise in claims that those proceedings are illegitimate. The Constitution should specify that judicial proceedings against a sitting government official must be open and recorded. Secrecy creates the possibility that disinterested observers might experience genuine doubt as to the timing of the initiation of judicial proceedings. If the judiciary is assigned a formal role in presidential removal, its responsibilities should be expressly stated. The judiciary should also have the duty to express its reasoning and conclusions clearly and publicly. Much of the uncertainty in the June 2009 crisis resulted from the absence of any clear line of interpretation and the failure of the judiciary to express its position clearly and publicly, both in the criminal case against the president and the administrative case against the presidential decrees. b. Constitutional Powers of the Supreme Court The constitutional text creates several different actions for the protection of constitutional rights. 249 The amparo allows any aggrieved person or anyone else in their name to file a writ in order to protect individual rights in a particular case. 250 The unconstitutionality action can be solicited by whoever is considered injured in his direct, personal, and legitimate interest. 251 This action must always be heard by the

249

The Constitution also includes a constitutional action of habeas corpus. CONST. HOND., art.

182. CONST. HOND,, art. 183. The purpose of the amparo is to ensure that individuals (1) are maintained or restored to the exercise or enjoyment of the rights and guarantees that the Constitution establishes, or (2) to declare in concrete cases that a law, resolution, act or action of authority, does not oblige the petitioner nor is it applicable to contravene, diminish, reduce, or distort any of the rights recognized by this Constitution. Id. 251 CONST. HOND., art. 185.
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Constitutional Chamber of the Supreme Court. 252 Finally, the Constitution also gives the Constitutional Chamber of the Supreme Court the power to hear conflicts between the powers of State. 253 As explained more fully in Part IV.A, the issues in the lawsuit against President Zelaya Rosaless decrees dealing with the Fourth Urn were not fully heard. Further, they were never aired adequately before the Supreme Court, the highest court in the system. A lawsuit against these decrees was not brought via one of these constitutional devices but instead was filed as an ordinary action for nullification of the administrative decree. Thus, the case was heard before the Contentious-Administrative Court rather than the Supreme Court. Further, President Zelaya Rosales was not given the power to intervene in the lawsuit or to file appeals or amparos against the result. The Procuradura or Attorney General, who is constitutionally charged with defending state actions in administrative cases, did not offer any defense of the decrees. We recommend that there be consideration for expanding and clarifying the constitutional powers of the Supreme Court. The conflicts between the powers of state or conflicts of competence power is stated in Article 316, clause 2 of the Constitution and regulated in Articles 107-110 of the Law of Constitutional Justice. 254 These cases are decided quickly 255 and go directly to the Constitutional Chamber of the Supreme Court. 256 The facts of the controversy involving the Fourth Urn appear to have involved difficult conflicts between important institutions of state. Thus the conflicts of competences power might have been useful for resolving key issues. In other countries, this kind of judicial power has played an important role in adjudicating high-level disputes. 257 But this device was not used in this case, and it is unclear whether it could have been used under existing law. The definition of what a conflict is should be clarified and might need expansion. 258 Also, the list of institutions that can use the power might need to be expanded. 259

CONST. HOND., arts. 184, 316, cl. 1. An unconstitutionality action can reach the Court in two ways by way of a direct lawsuit before the Supreme Court, or by a request for a constitutional ruling during a pending lower court case by either the parties or the judge. In the latter case, the ordinary lawsuit is suspended and the case is elevated to the Supreme Court for a ruling. CONST. HOND., art. 185. 253 CONST. HOND., art. 316 cl. 2. 254 See Ley de Justicia Constitucional [Law of Constitutional Justice], Aug. 30, 2004 (Hond.), arts. 107-110. 255 See id. arts. 109-110 (institutional parties are given six days to answer the charge, and the decision must be made within five additional days, with the decision given to the parties within ten additional days). 256 The Constitutional Chambers decision is final if made unanimously. If not made unanimously, decisions go to the Plenary of the Supreme Court for review. See CONST. HOND., art. 316. 257 The Mexican Supreme Court has had a robust jurisprudence over controversies between different institutions of state since a constitutional reform in 1995. See generally HECTOR FIX-ZAMUDIO, ESTUDIO DE LA DEFENSA DE LA CONSTITUCION EN EL ORDENAMIENTO MEXICANO 209-30 (2005). The relevant provision gives the Supreme Court jurisdiction over all constitutional controversies between certain institutional actors. CONST. MEX., art. 105, cl. I. 258 Neither the Constitution nor the Law of Constitutional Justice offers any definition of what a conflict is. See CONST. HOND., art. 316, cl. 2; Ley de Justicia Constitucional [Law of Constitutional Justice], Aug. 30, 2004 (Hond.), art. 107 (Hond.). The Mexican formulation, which offers the Supreme

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The unconstitutionality action is designed to review the constitutionality of law. This device, which also brings a case directly in front of the Constitutional Chamber of the Supreme Court, covers only statutory laws, and not administrative regulations like the decrees issued by Zelaya Rosales. Constitutional issues involving administrative decrees are therefore left to the ordinary contentious-administrative judicial process, as occurred in this case. Consideration might be given to expanding the unconstitutional action to cover some or all administrative decrees, as well as statutory laws. Further, constitutional provisions involving the amparo should be reviewed to ensure that the device is informal, easy to use, quick, and that any standing requirements are not unduly burdensome. 260 Finally, we recommend consideration of the role of international law in judicial interpretation and decision-making. Currently, the Constitution lacks clarity both on the role of international treaties and on the role of other kinds of international law in constitutional interpretation. 261 A possibility would be to establish a stronger role for international law within the Honduran legal system. For example, certain important human rights treaties might be given the same status as the Constitution, and/or might be stated as criteria for constitutional interpretation. 262 Such a provision might play an
Court jurisdiction over all constitutional controversies between certain specified actors, might be a more appropriate textual formulation. CONST. MEX., art. 105, cl. I. 259 The constitutional provision states that the Supreme Court has the power to hear the conflicts between the Powers of State, including the Supreme Electoral Tribunal (TSE), along with those between the other entities or organs that the law indicates . CONST. HOND., art. 316. The Law of Constitutional Justice allows the Court to hear three types of conflicts: 1. The conflicts of competence or attribution subscribed between the Powers of State or between any of them and the Supreme Electoral Tribunal, 2. The conflicts of competence or attribution produced between the Public Ministry, the General Procuradura of the Republic, and the Superior Tribunal of Accounts, and 3. The conflicts of competence or attributions of the municipalities among themselves. Ley de Justicia Constitucional [Law of Constitutional Justice], Aug. 30, 2004 (Hond.), art. 110. The law currently does not appear to allow, for example, conflicts between the Procuradura or Ministerio Pblico and the President to be heard by the Supreme Court. 260 For example, the Colombian Constitution creates a similar device and states that it may be filed in any moment and place, through a preferential and summary proceeding. Further, the Constitution states explicitly that a decision must be reached within ten days at each level of the judiciary. See CONST. COL., art. 86. 261 Article 15 of the Constitution states that Honduras makes its own the principles and practices of International Law that pertain to human solidarity, respect for the self-determination of peoples, noninterventionism, and the reinforcement of peace and universal democracy. CONST. HOND., art. 15. It is not clear what practical effect this provision has on judicial interpretation or practice. Article 18 states that In case of conflict between a treaty or convention and the law, the first prevails. CONST. HOND., art. 18. Treaties are thus placed above statutes, but it is not clear if their status is equal to or below the Constitution. Article 17 states that any treaty that affects a constitutional disposition must be approved by the same procedures used to reform the Constitution. This suggests that most treaties have a status above ordinary law but below the Constitution. CONST. HOND., art. 17. 262 Colombia and Argentina give constitutional status to some or all international human rights treaties: The Colombian Constitution states that [t]he rights and duties consecrated in this Charter, will be interpreted in conformity with the international human rights treaties ratified by Colombia. CONST. COL., art. 93. The Argentine Constitution states: The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its

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important role in strengthening the judiciarys role as a check on the actions of other state authorities. This might be particularly important during times of institutional crisis, for example during states of exception. In these situations, judicial recourse to international law might strengthen the rule of law and help to insulate the judiciary from political pressures. 263 c. Judicial Structure Judicial independence consists of at least two different dimensions the independence of the judiciary as a whole from the political branches, and the independence of lower-ranking judges from their superiors in the judicial hierarchy. It is important that adequate independence be achieved along both dimensions, but excessive independence may lead to a lack of accountability. Further, judges must be selected and promoted in ways that ensure maximum public legitimacy. Judicial selection is a subtle and complex problem, one that is resolved very differently in different countries. One method to maintain judicial independence is to make judicial terms non-renewable. It would also be possible to broaden the basis for the selection of judges. The goal should be for the court to enjoy maximum public legitimacy. Currently, judges on the Supreme Court are selected by a two-thirds vote of the Congress, after a nominating board selects a list of at least three names for every vacancy on the Court. The nominating board is composed of representatives of the Supreme Court, College of Lawyers, National Commissioner of Human Rights, Honduran Enterprise of Private Enterprise, professors from the Schools of Legal Science, a representative elected by organizations of civil society, and a representative of the workers federations. 264 Supreme Court judges are selected for seven year terms, and can be reelected. 265
empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions have constitutional hierarchy, do not repeal any section of the First Part of this Constitution, and are to be understood as complementing the rights and guarantees recognized herein. CONST. ARG., art. 75, cl. 22. The Argentine constitution also provides that other human rights treaties can be given constitutional status if they are approved by two-thirds votes in both houses of Congress. See id. Finally, the South African constitution requires that courts consider international law when carrying out interpretation of constitutional rights provisions: When interpreting the Bill of Rights, a court, tribunal or forum must consider international law. CONST. S.A., art. 39, cl. 1. 263 The Colombian Constitution states that [t]he treaties and international conventions ratified by Congress, which recognize human rights and which prohibit their limitation during states of exception, will prevail in the internal order. CONST. COL., art. 93. The South African constitution states that during a state of emergency, limitation of rights is only allowed to the extent consistent with the Republic's obligations under international law applicable to states of emergency. CONST. S.A., art. 37, cl. 4. Both provisions use international law as a floor for the protection of human rights during states of exception. 264 See CONST. HOND., art. 311. We note also that the Constitution and laws are very vague on how some of the members of the Nominating Board are selected. For example, the relevant constitutional article states that the Nominating Board includes [a] representative elected by the organizations of civil

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The appointment process for the Supreme Court is plural, but might enjoy greater legitimacy if it were broadened to include other political actors. For example, the President currently plays no role in the appointment process for the Supreme Court. This may cause tensions during the appointment process and may also reduce the Courts ability to act as an arbitrator between state institutions. Further, it might be desirable to stagger judicial terms so that the entire Supreme Court did not turn over at the same time. It might also be desirable to make terms on the Supreme Court nonrenewable in order to maintain judicial independence. We also recommend that consideration be given to changing the relationship between the Supreme Court and the lower courts. The Constitution establishes a Judicial Council to handle judicial selection and promotions. 266 However, such a Council has never actually been created, because the necessary implementing law has never been passed. An additional project of constitutional reforms related to the Council passed in 2011. 267 However, the implementing law creating the Council has still not been issued. Also, important details have not been established. This includes the exact powers of the Council and the selection process for choosing it. We recommend that the Judicial Council be created as soon as possible. Also, the Supreme Court should not have complete control over the career paths of lower court judges. There is a need to protect the independence of lower court judges from their superiors, and to ensure that high courts can not interfere in irregular ways with individual cases. The best way to achieve this may through an implementation of the Judicial Council that will ensure member selection by a pluralistic group of actors, rather than simply by the Supreme Court. The Judicial Council must also be given broad
society. CONST. HOND., art. 311. It also includes [a] representative of the workers confederations. Id. The Constitution does not state how this selection process involving these two types of organizations will function. For example, the Constitutional provision does not establish which organizations can participate and how the voting process will work. The Law of the Nominating Board provides little additional detail. Article 27 states that the representative from civil society will be selected as follows: the Secretary of State in the Dispatches of Governance and Justice will convoke publically the organizations of civil society duly registered, for an assembly in which they will elect their representatives and nominate the precandidates they will present. Ley Junta Nominadora [Law of the Nominating Board], Decreto 1402001, art. 27, Oct. 1, 2001 (Hond.). Article 28 establishes procedures for the representative of the workers confederations: The Workers Confederations will organize in extraordinary assembly in accord with their specific rules to proceed to the election of their representative and substitute before the Nominating Board, as well as to choose the list of persons proposed as precandidates for Magistrates. Id. art. 28. It might be desirable to provide additional clarity on exactly which organizations can participate in the selection process and how that process will work. This could reduce the risk that the Nominating Board would be manipulated by political actors, rather than representing an authentic manifestation of the groups that compose it. 265 See CONST. HOND., art. 314. 266 See CONST. HOND., art. 317. 267 The reforms were to certain clauses of article 313, which establishes the powers of the Supreme Court, and article 317, which creates the Judicial Council. The members of the Judicial Council will have five year terms and may be reappointed once. See Aplastante ratificacin a reformas constitucionales, LA TRIBUNA, Feb. 18, 2011, available at http://www.latribuna.hn/2011/02/18/aplastante-ratificacion-areformas-constitucionales.

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powers over judicial selection, promotion, and discipline. 268 These processes must be governed by impartial, meritocratic, and objectively verifiable methods. Finally, constitutional designers might consider creating a separate Constitutional Court to adjudicate constitutional issues. Constitutional review is already partially centralized in the Constitutional Chamber of the Supreme Court. But centralizing judicial review of unconstitutionality actions, amparos, and constitutional controversies in a specialized Constitutional Court might be desirable for two reasons. 269 First, it might give the constitutional magistrates greater independence from the ordinary judiciary. Second, it might raise the public legitimacy and visibility of constitutional justice. 2. States of Exception In the aftermath of the institutional crisis that both caused and resulted from the removal of President Zelaya Rosales, the interim regime declared several states of exception. These states of exception suspended constitutional rights in order to deal with social unrest in the wake of the removal. The relevant constitutional provisions, Articles 187 and 188 of the Honduran Constitution, state that the President in agreement with his Council of Ministers may suspend certain enumerated constitutional rights via a decree that states the motives justifying the decree, the guarantee or guarantees restricted, the territory affected by the restriction, and the time that the restriction will last. The decree may not last for more than 45 days, although it can be reissued. Upon issuing the decree, the president is required to convoke the Congress to ratify, modify, or disapprove the decree within 30 days. 270

As one example, the Spanish Judicial Council provides for the following composition: The General Council of the Judicial Power shall consist of the President of the Supreme Court, who shall preside, and twenty members appointed by the King for a period of five years. Of these, twelve shall be Judges and Magistrates of all the judicial categories under the terms the organic law establishes; four will be proposed by the House of Representatives; and four by the Senate, elected in both cases by three-fifths majority of their members, from among lawyers and jurists of recognized competence with more than fifteen years in the exercise of their profession. CONST. SPAIN, art. 122, cl. 3. The Spanish model thus gives the Supreme Court an influence over the Judicial Council without allowing it to dominate its composition. 269 Many Latin American countries have created a specialized constitutional court in recent years. Bolivia, Chile, Colombia, Ecuador, and Peru all have specialized constitutional courts. See CONST. BOL., arts. 196-204; CONST. CHILE, arts. 81-83; CONST. COL., arts. 239-45; CONST. ECUAD., arts. 429-40; CONST. PERU, arts. 201-04. Several countries have a specialized constitutional chamber of the Supreme Court, which is the current Honduran model. See CONST. C.R., art. 10; CONST. VEN., art. 334. 270 CONST. HOND., art. 187. We note two issues that are unclear under current law, and that should be clarified. First, it is unclear whether or not the president could veto the decision of Congress to modify or disapprove a declaration of a state of exception. Such a veto power would be undesirable because it would make it very difficult for Congress to check presidential power. Second, article 205, clause 12 states that Congress has the power to [t]o decree the restriction or suspension of rights in conformity with what is prescribed in the Constitution and to ratify, modify, or disapprove the restriction or suspension dictated by the Executive Power in accord with the law. This may be interpreted to suggest that Congress has some additional power to restrict or suspend rights on its own. Any such additional power is likely unnecessary and undesirable.

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States of exception such as the ones used in Honduras are dangerous mechanisms. They may contribute to a climate in which the violation of human rights is endemic. They may also erode the legitimacy of a regime at a fragile point in time. At the same time, states of exception may in rare situations be necessary to prevent unrest from spiraling out of control. They may also be useful because they clearly separate situations of normality from situations of abnormality. We recommend consideration of reforms to clarify these provisions, strengthen the institutional accountability of the president when making decisions, and ensure that the state of exception does not exceed certain substantive bounds. The first point is that any states of exception or emergency possible in the legal order must be clearly delineated in the Constitution. The Constitution should also state explicitly that it provides an exhaustive list of any states of exception or emergency. In all other cases normal legal rules must apply. It is essential that an executive not be able to claim de facto emergency or exception powers by pointing to vague constitutional provisions, without following proper constitutional procedures. Further, ex post congressional control of presidential decrees convoking a state of exception may be inadequate. 271 Once the president has acted to declare the state of exception, it may be difficult in practice for the congress to disapprove or modify the declaration. It might be desirable to require the president to receive congressional approval (perhaps by a supermajority) either prior to the first declaration of a state of exception or prior to its reissuance. 272 It may also be desirable to have the decrees authorizing the state of exception, as well as any decrees issued during that state of exception, sent to the Supreme Court (or to its Constitutional Chamber) for automatic review. The Supreme Court would review whether the situation was sufficiently grave to require a state of exception and whether the restrictions on constitutional rights were proportional to the threat. 273 At a minimum, it would be desirable to explicitly state that the judiciary has the power to review
Ex post congressional control could potentially be improved by requiring congress to vote more quickly. For example, the Chilean constitution requires each house of congress to vote to accept or reject the presidential declaration of a state of emergency within ten days, by a simple majority of members present in each house. The Congress may subsequently derogate the State of Emergency by the vote of an absolute majority of the members of both houses. CONST. CHILE, art. 40, cl. 2. 272 For example, the Constitution of Brazil requires authorization by an absolute majority of the Congress before a State of Siege can be declared by the president. See CONST. BRAZIL, art. 137. The Constitution of Colombia allows the president to unilaterally declare a State of Internal Commotion for up to 90 days. He can also unilaterally declare a first extension of that State for an additional 90 days. However, the second and final extension of up to 90 days requires the prior approval of the Senate. See CONST. COL., art. 213. Finally, the Constitution of South Africa requires an Act of Parliament to declare a State of Emergency for up to 21 days. Any extension may last for up to three months: the first extension requires the approval of a majority of Parliament, and subsequent extensions require the approval of sixty percent of Parliament. See CONST. S.A., art. 37. 273 Under the Colombian Constitution, during a State of Internal Commotion, [t]he government will send to the Constitutional Court the day after their release, the legislative decrees that it dictates in use of the faculties referred to in the prior articles, so that [the Court] may decide definitively on their constitutionality. CONST. COL., art. 214, cl. 6; see also id. art. 215 (stating a similar requirement for States of Economic and Social Emergency).
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declarations of states of exception. 274 Further, such judicial review should occur even if the effects of the state of exception have already ceased. 275 This will clarify the limitations on government power in crisis situations. It may be prudent to place additional limitations on the nature of the limitations that may be placed on constitutional rights during a state of exception. The current text lists the rights that may be suspended, thus excluding other rights from being suspended during the state of exception. 276 It also provides a critical limitation: The restriction of rights decreed in no way will affect the functioning of the organisms of State, whose members always enjoy the immunities and prerogatives conceded by law. 277 States of exception must not allow one branch of government to reduce the powers of another governmental institution. It might be desirable to state explicitly in the constitutional text that no constitutional rights may be limited or suspended to a greater extent than is possible in international human rights treaties ratified by Honduras. 278 Such a provision would use international human rights law as a floor during crisis situations. Another possibility would be to limit the duration of the state of exception. Some constitutions limit the number of times a state of siege may be reissued. 279 A final possibility would be to state explicitly in the state of exception provisions that officials will be subject to criminal and civil responsibility for abuses committed during the state of exception. 280 C. Recommendations Related to the Processes of Constitutional Change

For example, the South African Constitution states: Any competent court may decide on the validity of- (a) a declaration of a state of emergency; (b) any extension of a declaration of a state of emergency; or (c) any legislation enacted, or other action taken, in consequence of a declaration of a state of emergency. CONST. S.A., art. 37, cl. 3. 275 The Supreme Court currently appears to adhere to a doctrine that denies judicial review of a state of exception once that state of exception has ceased. States of exception typically only last for relatively short periods of time. Thus, this doctrine may make judicial review of states of exception difficult or impossible. 276 See CONST. HOND., art. 187 (The exercise of the rights established in articles 69, 71, 72, 78, 81, 84, 93, 99, and 103, can be suspended .). 277 Id. 278 Two examples come from Colombia and South Africa. The Colombian Constitution states that The treaties and international conventions ratified by Congress, which recognize human rights and which prohibit their limitation during states of exception, will prevail in the internal order. CONST. COL., art. 93. The South African constitution states that during a state of emergency, limitation of rights is only allowed to the extent consistent with the Republic's obligations under international law applicable to states of emergency. CONST. S.A., art. 37, cl. 4. 279 For example, the Colombian Constitution only allows a State of Internal Commotion to be issued initially for 90 days, and to be extended twice for a maximum of 90 days each time. The second extension requires the prior approval of the Senate. See CONST. COL., art. 213. Similarly, the Colombian State of Economic and Social Emergency may only be declared for up to 90 days in a single calendar year. See id. art. 215. 280 The Ecuadorian constitution, for example, states that [p]ublic servants shall be responsible for any abuse that might have been committed in the exercise of their powers while the State of Exception was in force. CONST. ECUAD., art. 166.

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Finally, we make several recommendations related to the processes for changing the constitutional order. The reforms are aimed at providing greater clarity in the constitutional text and at providing a set of provisions related to constitutional change that might be more stable and less prone to abuse by political actors. 1. Mechanisms of Direct Democracy Countries in the region and in the rest of the world have taken a number of approaches to the problem of direct democracy. Some systems prohibit or discourage such practices, while others make them a significant part of the democratic order. Our recommendations here do not establish any particular model of direct democracy for Honduras. Rather, they are aimed at two points closely related to the June 2009 crisis: clarifying existing constitutional and statutory provisions and ensuring that strong executives or other institutional actors are not able to use direct democracy to abuse the constitutional and democratic order. We also understand that the Congress has recently approved a package of reforms to Article 5 of the Constitution, which establishes devices of direct democracy. 281 Existing constitutional and statutory provisions dealing with direct democracy are unclear on several key points. Article 5 of the Constitution establishes the devices of the referendum and plebiscite. The referendum is used to approve or disapprove a law or constitutional reform that has already been passed by Congress. The plebiscite is used to have a nationwide vote on legal or constitutional proposals that have not yet passed the Congress. Both have binding legal effect. But it is unclear whether these two devices are intended to be the exclusive mechanisms of direct democracy in Honduras, or whether additional mechanisms could also be created by statute. If these two mechanisms are intended to be exclusive, Article 5 should be amended to say so. If other devices like non-binding national consultations are allowed, these should also be explicitly stated in Article 5. Further, Article 5 must clearly establish the proper scope for any binding or non-binding devices of direct democracy. It is very important that the article establish exactly which constitutional provisions can be amended or discussed via these devices. For example, Article 5 should state explicitly whether or not it may be used to alter the unamendable constitutional provisions listed in Article 374 of the Constitution. It should also state whether nonbinding consultations may be used to discuss changes to these provisions.

See Aplastante ratificacin a reformas constitucionales, LA TRIBUNA, Feb. 18, 2011, available at http://www.latribuna.hn/2011/02/18/aplastante-ratificacion-a-reformas-constitucionales. A major aim of the reform is to make it easier for citizens to initiate plebiscites or referenda. While in these past these processes could be initiated by the President, ten members of Congress, or six percent of the population of registered voters, under the new law they can be initiated by the President, ten members of Congress, or two percent of the population of registered voters. Moreover, the old provision required at least 51 percent of registered voters to participate in any process for the result to be binding. The new provision requires only that at least 51 percent of the voters in the previous presidential election participate.

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The Law of Citizen Participation creates an additional device of direct democracy, the citizens initiative. 282 The citizens initiative does not have a clear definition or purpose within the statute. 283 Among other things, it allows citizens to [s]olicit the heads or organs or public dependencies of any power of State to convoke the citizenry in general, the neighbors of a municipality, of a neighborhood [or of] sectors or organized social groups, so that they may emit opinions and formulate solution proposals to collective problems that affect them. 284 The results of this convocation are nonbinding. Some of the problems related to the June 2009 crisis stemmed from a lack of clarity in this definition. It is unclear how the citizenry can be convoked, its relationship to other laws, particularly electoral laws, and what kinds of procedures must be followed during the process. We recommend that the Law of Citizen Participation be amended to clarify this power. The fact that the citizens initiative is formally non-binding does not diminish the problem. Even a non-binding vote can have significant effects on the political process. An important risk with any exercise of direct democracy is that it may be used by the chief executive or another institutional actor to subvert the constitutional order. Plebiscites, referenda, and similar devices have been abused by presidents to erode democracy from within. To guard against this risk, all exercises of direct democracy should have appropriate procedural protections. First, there should always be adequate protections to assure that the outcome of the vote is fair. This is important regardless of whether a vote is formally binding or not. Thus, any exercise of direct democracy that involves voting should be placed under the supervision of the Supreme Electoral Tribunal or a similar oversight body. 285 Second, procedures should be crafted to ensure that a president cannot unilaterally call for an exercise of direct democracy. Examples of such procedures are requirements that Congress approve any exercise before it is put to the people, or requirements that
See Ley de Participacion Ciudadana [Law of Popular Participation], Decreto No. 3-2006, arts. 3, 5, Jan. 27, 2006. 283 In full, the relevant provision states: The citizens initiative is a mechanism of participation through which the citizen can present the following petitions or initiatives: (1) Solicit the heads or organs or public dependencies of any power of State to convoke the citizenry in general, the neighbors of a municipality, of a neighborhood, or a colony, to guilds, sectors or organized social groups, so that they can emit opinions and formulate solution proposals to collective problems that affect them. The results will not be binding but yes relevant elements for the exercise of the functions of the convoker, and, (2) Offer collaboration to public authorities, in the execution of a work or the lending of a service, supporting for its realization economic resources, materials or personal work for the benefit of the community or the State. The competent public organ, in accord with its financial availability, can offer resources to cooperate in the execution of the works or make a public call for other citizens, businesses or social groups to collaborate in its execution. Id., art. 5. It is notable that the citizens initiatives has two very different (and largely unrelated) purposes in this statutory provision. 284 Id. 285 Article 5 of the Constitution places plebiscites and referenda under the supervision of the Supreme Electoral Tribunal. However, no similar protections exist in the Law of Citizen Participation.
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some adequate percentage of the population sign petitions in order to initiate proposals. 286 Again, these safeguards are important regardless of whether a vote will be binding or non-binding. Further, referendum or plebiscite proposals can often be written in a manner that is unclear or manipulative. It might be desirable to send proposals to the Supreme Court or other oversight body (such as the Supreme Electoral Tribunal) before any vote. The Court would have the power to ensure that the questions presented were clearly and fairly written. 287 Finally, it might be desirable to explicitly establish heightened thresholds for the exercise of direct democracy in some cases. The approval of amendments to certain important constitutional provisions, for example, should perhaps require a supermajority approval by the Congress before being submitted to a vote and/or a supermajority approval by the public during the vote. Any provision allowing for the convocation of a Constituent Assembly or similar device to rewrite the Constitution should likely require supermajority approval from both the Congress and the public. 288 Sweeping changes to the constitutional order should reflect, as much as possible, a true social consensus. 2. Constitutional Change The problem of constitutional change in Honduras raises two important questions that have implications both inside and outside the country. The first is whether a textually unamendable constitutional provision may ever be lawfully changed. The second, related question is the circumstances under which actors may dissolve the current Constitution and write an entirely new one.

Under the recently-passed reforms to article 5, initiatives and referenda can be initiated by the president, ten members of Congress, or the signatures of two percent of the voting population. They are put to the voters if approved by two-thirds of the Congress. The nation-wide vote succeeds if at least 51 percent of the amount of voters who participated in the previous presidential election participate, and if a majority of the valid votes favors the proposal. CONST. HOND., art. 5. No similar safeguards exist within the Law of Citizen Participation. Of course, there may also be risks associated with too many procedural barriers. If citizens view referenda and plebiscites as ways to enact political change without utilizing ordinary political processes, then they may become frustrated if votes cannot occur because they have been blocked by ordinary political actors. In such a case, it might be desirable to limit or eliminate the congressional role in approving proposed referenda or plebiscites. If such reforms were enacted, it might also be desirable to eliminate the Presidents ability to unilaterally propose referenda or plebiscites. The key to such a reform would be reducing the barriers to these mechanisms without also giving the president power to manipulate the process. 287 For example, the Colombian Constitutional Court is given the power to review plebiscites, referenda, and popular consultations before they are submitted to the public for a vote. See CONST. COL., art. 241. 288 Most Constitutions include mechanisms for constitutional amendment. However, most do not explicitly contemplate the calling of a Constituent Assembly to write a new Constitution. Such an explicit mechanism might have undesirable effects. For example, it might reduce the stability of the current constitution. On the other hand, it might also help to ensure that a change between constitutional regimes would be peaceful and legitimate. The Colombian Constitution explicitly contemplates the possibility of a Constituent Assembly. It regulates the procedures necessary to call such an assembly. It also states that any Constituent Assembly must be directly elected by the citizens. See CONST. COL., art. 376.

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Article 373 of the Honduran Constitution lays out a procedure for constitutional amendment. Constitutional reforms require the approval of two-thirds of all of the members of Congress in two different congressional sessions. However, Article 374 of the Constitution establishes that certain provisions, including the provision relating to the reelection of the president, cannot be reformed, in any case. Thus, the Constitution makes certain provisions unamendable. Further, it provides no mechanism by which the current Constitution may be wholly replaced by a new constitution. The starting point for the problem of unamendable constitutional provisions is that, pursuant to positive constitutional law, a provision that is entrenched by the text of a legitimately enacted constitution cannot be changed without violating the constitution itself. Yet many constitutions viewed as legitimate are adopted by processes that violate the positive constitutional law of the preceding constitution. It is, therefore, possible to enter into an entirely new constitutional regime that is itself legitimate even while violating positive constitutional law. The best objective description of what happens under such circumstances is that there is a change in constitutional regimes. The new regime must then render itself legitimate by appealing to a broad public through a process of adoption or ratification that achieves legitimacy both in theory and practice. This is not to say that all processes of constitutional regime change are equivalent from a political or moral perspective. Constitutional regimes are often changed by processes that are violent or that privilege the interests of some political actors over the rest of society. Further, constitutional regime change often creates a crisis at the domestic and international levels. New constitutions should ideally be written under processes that are stable, non-violent, legitimate, and inclusive. One way to reach such a result might be to write a process of constitutional regime change into the Constitution. Few constitutions provide an explicit textual mechanism by which the current constitutional regime can be dissolved and a new one created. There might be costs to such a provision. It might encourage changes in the entire constitutional regime that are too frequent. It might be hijacked by popular chief executives or other actors as a way to entrench their own power through constitutionmaking. But it might also provide a roadmap to the process of change that would help ensure that the process was stable, non-violent, legitimate, and inclusive. It might also make regime change more palatable from a legal or political perspective; as it allows the resulting legal regime to be an extension of the preceding one. Some constitutions provide an explicit process by which the current constitutional regime might be replaced by a new one. For example, the Colombian Constitution of 1991 provides for the convoking of a Constituent Assembly, and provides some rules for its functioning. 289 Congress must pass a law convoking the assembly by an absolute majority of both chambers, and the people must approve the convocation in a vote at which at least one-third of all registered voters participate. If approved, the Constituent Assembly must be elected in a direct election that does not coincide with any other
289

CONST. COL., art. 376.

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elections. This kind of provision might help to ensure that constitutional regime changes were stable, non-violent, legitimate, and inclusive processes. Another way to avoid this problem in the future might be for the next constitutional regime not to make particular constitutional provisions completely unamendable. Instead, for provisions that seem especially essential such as the oneterm limit for presidents it would be possible to provide a heightened amendment standard. In other words, such provisions could be rendered more difficult to change than the standard constitutional provision. This could be accomplished with some combination of different devices. First, some constitutional provisions could require an increased super-majority vote. The normal threshold for amendment in Honduras is two-thirds of Congress in two different sessions. Designers could establish a special threshold of 75 or 80 percent of Congress for some constitutional amendments. 290 Another device would be to require repeated votes over time for constitutional change for example, approval at this threshold might be required in two or three different legislative sessions. The result is that constitutional transition would not need to represent total constitutional regime change. Short of these recommended changes, the Constitution must provide clear lines of authority for determining the consequences of acts taken to amend the unamendable provisions. It must also clarify the scope of any unamendable provisions. Heightened amendment thresholds or unamendable provisions should be carefully crafted to protect only the most critical values of the constitutional order. 291 We emphasize finally that these issues are separate from the question of whether presidential reelection should be prohibited in the Honduran Constitution. We have no specific recommendation on the question of whether presidential reelection should or should not be allowed in the Honduran constitution. We recognize that the prohibition was put in place for important historical reasons and that it is an important part of the current constitution. We also note that there is a range of acceptable practice in Latin America.

Some constitutions already provide different amendment thresholds for different categories of constitutional provisions. See, e.g., CONST. CAN., art. 41-47; CONST. S.A., art. 74. 291 Currently, Article 374 of the Honduran constitution states that [t]hey cannot be reformed, in any case, the prior article [on constitutional amendment], the present article, the constitutional articles that refer to the form of government, the national territory, the presidential period, the prohibition on being newly President of the Republic, the citizen that has held it under any title, and the reference to those who cannot be President of the Republic for the following period. This formulation is vague and has caused problems in several Supreme Court cases. In one decision, the Court held that an attempt to create the institution of vice-president via constitutional amendment was invalid because it involved textual changes to some of the unamendable articles. Supreme Court of Honduras, Constitutional Chamber, Decision 51408, Nov. 8, 2008. In another decision, the Court said that an attempt to add the President of the Congress to the list of actors who cannot be elected to the presidency for the following term was invalid because the provision creating a reference to those who cannot be President of the Republic for the following period was unamendable. Supreme Court of Honduras, Plenary, Decision 271-07, Dec. 2, 2007. It might be possible to avoid these problems by crafting a narrower, more clearly-worded list of unamendable provisions or provisions subject to heightened amendment standards.

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There are three dimensions on which presidential term limits vary in the region: (1) the length of a single term; (2) the total number of terms that a president may serve; and (3) whether terms may be served consecutively. When considering these three dimensions, Hondurass presidential term is on the restrictive end of the spectrum. Honduras allows only a single presidential term of four years. That is not to say that Honduras has taken an entirely unusual approach. Paraguay 292 and El Salvador, 293 for example, allow only a single presidential term of five years. 294 And Costa Rica and Chile limit the presidential term to four years and do not allow immediate reelection. 295 Several other countries in the region have a four-year term and allow immediate reelection for only one subsequent term. 296 It is possible that a number of approaches would strike an appropriate balance in the Honduran context.

CONST. PARA., art. 229. CONST. EL SALV., art. 154. 294 Mexico is nearly as restrictive. See CONST. MEX., art. 83 (establishing a six year term, but prohibiting any subsequent reelection). 295 CONST. COSTA RICA, art. 134. Chile takes a similar approach. See CONST. CHILE, art. 25 (establishing a four-year term and prohibiting immediate reelection). 296 See, e.g., CONST. BRAZ., arts. 18, cl. 5, 82; CONST ARG., art. 90; CONST. COL., arts. 190, 197.
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VI. Appendix A: List of Interviews Conducted

January 13, 2011 (Tegucigalpa, Honduras) Professor Rafael Pineda Ponce & Irma Lucrecia Acosta Meja de Fortn Pinel, exdeputies to the 1982 National Constituent Assembly, Office of the Commission on Truth and Reconcilation, 8 a.m. Jos Alfredo Saavedra, Ex-President of Congress and Ex-Secretary of Congress, Offices of the Commission on Truth and Reconcilation, 10 a.m. Ana Pineda, Minister of Justice and Human Rights, Offices of the Commission on Truth and Reconciliation, 12 p.m. . Luis Alberto Rub, General Prosecutor of the State, together with: Manuel Aceituno, Special Prosecutor for Constitutional Affairs; Henry Salgado, Special Prosecutor for Anti-Corrruption; Daniela Ferrera, Director of Prosecutors; and Marcelino Banegas, Assistant Senior General Prosecutor, General Prosecutors Office, 2:30 p.m. Oswaldo Ramos Soto, President of the Constitutional Commission of the National Congress; German Leitzelar Vidaurreta, Deputy to the National Congress; Roberto Herrera Cceres, writer and Professor of Law, Autonomous University of Honduras (UNAH), Offices of the Commission on Truth and Reconciliation, 4 p.m. January 14, 2011 (Tegucigalpa, Honduras) Vilma Morales, Ex-President of the Supreme Court of Justice; General Gerber Ballardo Inestroza Mimbreo, Auditor for the Armed Forces, Office of the Commission on Truth and Reconciliation, 8 a.m. Magistrate Jorge Rivera Avils, President of the Supreme Court, together with: Magistrate Rosalinda Cruz de Williams, President of the Constitutional Chamber; Magistrate Jos Francisco Ruiz Gaekel; Magistrate Vctor Manuel Martnez; Magistrate Gustavo Enrique Bustillo Palma; and Silvia Santos, Substitute Magistrate, Offices of the Supreme Court of Justice, 10:30 a.m. Andrs Prez, Commissioner of Human Rights of the Autonomous University of Honduras (UNAH), Offices of the Commision on Truth and Reconciliation, 2 p.m. Rodil Rivera Rodil, ex-member of the Tegucigalpa-San Jos Accords, representative of Ex-President Jos Manuel Zelaya Rosales; Arstides Meja, Ex-Minister of Defense and Ex-Acting Vicepresident of the Republic; Milton Jimnez Puerto, Ex-Chancellor and ExPresident of the Commission on Banking and Insurance, Offices of the Commission on Truth and Reconciliation, 3 p.m. 95