A coup by any other name is a coup

By Amaury Cruz

In Much ado over a non-coup (Miami Herald, July 26, 2009, p. 6L) William Ratliff writes in definitive tones that it was ousted Honduran president Manuel Zelaya “who was in the wrong,” instead of the new government, and complains that the OAS has painted him as a hero instead of the “country’s No. 1 lawbreaker.” Ratliff exemplifies a horde of commentators that have tried to put a rightist spin on the Honduran crisis in order to justify the recent coup d’état.

Why is Zelaya the country’s No. 1 lawbreaker? According to Ratliffe, for something the OAS, the U.N. and other leaders did not know: “he triggered a constitutional provision that automatically removed him from office.” “Google the Honduran Constitution and read it for yourself,” Ratliffe urges, pointing to Article 239 of the constitution.

This Article has been cited so much by the spinners, it’s hard to comprehend how the OAS, the U.N. and “other leaders” could have missed it. Among others, lawyers representing the new government of Honduras cited the provision in congressional testimony. No one ever read it out loud, however, and it has not been seen in print in any of dozens or articles about the recent Honduran coup. Duly Googled, here is a translation of that constitutional provision:

“Article 239 – A citizen who has held executive power shall not be President or Vice-President of the Republic.

“Whoever violates this provision or proposes a change to it, as well as those who support it directly or indirectly, shall immediately cease to carry out their respective offices and shall be disqualified for ten (10) years from the exercise of any public office.”

See http://pdba.georgetown.edu/Constitutions/Honduras/hond05.html.

So, the gist of the provision is to impose a term limit on the executive and whoever violates the proscription against the term limit or proposes to change it, shall be thrown out of office and stay out for ten years.

How did Zelaya supposedly violate this provision? According to a CNN report online, “He sought [a] referendum, which he planned to hold [in June 2009], to see if voters wanted a measure on November’s ballot to establish a constitutional assembly to study whether a president could run for re-election.” See http://www.cnn.com/

2009/WORLD/americas/07/19/costa.rica.honduras.talks/index.html (July 19, 2009).

So, it is not clear that Zelaya did anything to violate Article 239, nor is it clear that, even if he had, that provision triggered his automatic removal from office. Zelaya did not stay in office beyond his term, or said he wanted to, and the referendum merely called for a constitutional assembly, not the actual change in the constitution.  Even if he had done any of these things, all Article 239 says is he should be thrown out of office, but presumably after an impeachment proceeding, not by the military, even if the military was wearing the fig leaf of a Supreme Court order issued summarily.  Nowhere does Article 239 say the president should have been kidnapped in the middle of the night, under threat of assassination, and taken to another country.

In fact, in an interview with The Miami Herald, army attorney Col. Herberth Bayardo Inestroza acknowledged that “top military brass made the call to forcibly remove Zelaya and violated the law when they did it.” “We know there was a crime there,” said Inestroza, “the top legal advisor for the Honduran armed forces.” “In the moment that we took him out of the country, in the way that he was taken out, there is a crime.” Top Honduran military lawyer: We broke the law, Miami Herald, July 3, 2009, available at http://www.miamiherald.com/honduras/v-print/story/1125872.html.

It is also not clear that Article 239 is immutable. At least one other provision in the Honduran Constitution is at odds with the proscription against change (which also applies to seven other articles).  Article 2 of the Constitution reads: “Sovereignty resides with the People[,] from whom all the powers of the State emanate [and] which are exercised by representation. The Sovereignty of the People can also be exercised directly, through a Plebiscite or Referendum.”

So, the powers emanate from the people, and the people can exercise their sovereignty through a plebiscite or referendum. It follows that the people, through a referendum, can amend all articles in the constitution. Hence, Zelaya arguably acted well within the parameters of the constitution as well a rule of reason allowing the people to amend the constitution that they themselves have created.

Therefore, it is not a foregone conclusion that, as Ratliff claims, “it was quite legal for the military to remove Zelaya.”  Ratliff recognizes that “the nighttime act” of the military removing Zelaya gave the impression of a military coup to outsiders.  But it was not only the nighttime act, it was his removal to exile in Costa Rica, shooting down the door to his house and other brutal acts, and the total lack of due process, implicitly recognized by Col. Herberth Bayardo as crimes.

It is not that “Zelaya, [OAS chief Jose Miguel] Insulza, [Venezuelan president Hugo] Chávez, the U.N. and all the OAS member-states are playing at banana republic politics,” as Ratliff says. It is Ratliff et alia playing at banana republic journalism.

Amaury Cruz is a Miami lawyer, writer and political activist.