November 2, 2009
Law Library of Congress Stands by Honduras ReportThe Law Library of Congress is under fire from Senator John Kerry and Representative Howard Berman for a report issued in August that analyzed the removal of Honduran president Manuel Zelaya from office. The report, Honduras: Constitutional Law Issues, states that the removal was in keeping with Honduran laws and approved by judicial and legislative branches of the Honduran government. The Obama administration along with other regional governments have called for Zelaya's restoration. Kerry calls the report analysis flawed, but there are suggestions his response is political rather than legal. He wants the report retracted, but the LLC is standing firm. The report is here, and commentary is available at Jurist, McClatchy, the Kansas City Star, and the Hill. [MG]
Explanatory Note: In the aftermath of Zelaya’s removal from office, two U.S. Government documents were published analyzing the event. The Law Library of Congress issued its report, “Honduras: Constitutional Law Issues,” in August 2009, while the Congressional Research Service (CRS) published its own version, “Honduran-U.S. Relations,” on October 6, 2009.
The CRS report is uniquely detached and objective and it does not arrive to any conclusion regarding the constitutionality of Zelaya’s removal. Instead, it allows the reader to interpret the chronology of events as they occurred.
The report by the Law Library was published in reply to a request by U.S. Congressman Rep. Aaron Schock, R-Ill., who had inquired whether the Honduran Government had proceeded in accordance with the law in removing President Zelaya from power. This report was criticized by those who opposed the incident for “over-reading” of the Honduran Constitution while those who supported Zelaya’s removal used the document to criticize the Obama administration’s stand on the issue and to side with anti-Chavez forces inside and outside of Honduras.
The point I sought to make in the above article is that, despite having the necessary constitutional powers to bring Zelaya to trial and likely to remove him from office, the National Congress chose not to rely on the “impeachment-like” procedures at its disposal. Note: The Law Report correctly states that while specific impeachment legislation no longer exists, the constitution does enumerate various powers residing in the hands of the Congress and the Supreme Court that may accomplish the same objective. I cite several of these powers in the article.
Three important points, however, need to be made. First, conflictive inquiries issued at the request of members of Congress need to be read between the lines. For example, the Law Report states, “Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system” (emphasis added). The statement suggests that the analyst did not have all pertinent information at hand; only what the Honduran Government had released. A correct interpretation of this statement might be that the Honduran authorities responsible for removing Zelaya from office were of the opinion that their actions were in conformity with constitutional and statutory law.
This apparent partiality initially appears in the report’s Executive Summary as it adds that, “The Constitution … gives Congress the power to interpret the Constitution.” While nothing in politics is impossible, it is dubious that a republican constitution would allow those who write the law to interpret it, too. If so, this may be one reason why so much chaos has been created by those who removed Zelaya from power.
Further ambiguity expressed by the Law Report analyst attests to the uncertainty of the constitutional question. The analyst states, “The Constitution does not contain an express provision giving the National Congress the authority to remove a President from office. Nonetheless, the National Congress apparently used several other constitutional powers to remove President Zelaya from office” (emphasis added). In the end, the analyst, in a show of proper research and analysis techniques, concludes, “The question of which Constitutional provision gives the National Congress the power to remove the President still remains.” In addition, as if to further qualify the constitutionality of Zelaya’s forceful exile in Costa Rica, the Executive Summary concludes quite tersely, “The Constitution prohibits the expatriation of Honduran citizens.”
The second point pertains to the question the Law Report asks regarding the constitutionality of Zelaya’s removal: “Did the Honduran Supreme Court have the authority under the Honduran Constitution to request that the military remove the President because the National Congress, the Supreme Court, the Human Rights Ombudsman, and the Attorney General found an action of the President unconstitutional?” (Emphasis added).
The question incorrectly indicates “findings” by the National Congress and the Human Rights Ombudsman. Only the Attorney General had brought charges against Zelaya prior to his removal from office, which the Supreme Court agreed with. The National Congress, as well as other social and political institutions had expressed political opposition to Zelaya’s actions but there had been no formal “findings” other than the decisions by Attorney General and the Supreme Court.
Perhaps, the most egregious unconstitutional action throughout the entire Honduran affair, which went unnoticed by the Law Report, is the timing of the judgment the National Congress issued against President Zelaya. The CRS Report states—and the Law Report agrees—that, “Following Zelaya’s removal …, the Congress then passed a decree that disapproved of Zelaya’s conduct for ‘repeated violations against the Constitution and laws of the Republic and nonobservance of the resolutions and rulings of the judicial organs,’ removed Zelaya from office, and named Roberto Micheletti—the Head of Congress and the next in line constitutionally—the president of Honduras for the remainder of Zelaya’s term…”
Such disapproval was precisely the charge that the National Congress was constitutionally mandated to issue prior to Zelaya’s removal from office as a means to request the Supreme Court to review the charges and take action. However, as the CRS Report indicates, the action by the National Congress was taken retroactively. Indeed, Zelaya had been charged and found guilty after he had been removed and sent to Costa Rica. He never underwent a trial as mandated by the constitution. News of the so-called “extensive investigation” that the National Congress relied on “to disapprove of the conduct of the President,” as stated in the Law Report’s Executive Summary, was made public after Zelaya’s removal.
Other errors in the Law Report are worth mentioning. The report states that, “Two days later, on June 28, 2009, Zelaya was arrested. Nonetheless, Zelaya was never arrested. The Supreme Court had issued a warrant for his arrest; however, someone undercut this decision and instead the Army took Zelaya by force to a foreign State in violation of Article 102 of the constitution. Note: In reference to my statement that the Supreme Court does not have the power to order the military to depose the president, it is correct that the Supreme Court is empowered to rely on the Armed Forces to adjudicate its decisions. In this case, however, it was the National Police that was empowered to have Zelaya arrested, according to documentation presented by the Attorney General. Someone made the decision to circumvent this procedure.
Further, the Law Report did not give much value to other constitutional violations by the National Congress, the Supreme Court and/or the Armed Forces, despite its veiled acknowledgement. The report states, “The Chief Prosecutor filed a complaint (requerimiento fiscal) against President Zelaya before the Supreme Court on June 26, 2009. The complaint: (1) accused the President of acting against the established form of government, treason against the country, abuse of authority, and usurpation of functions; (2) requested that the Court order the arrest of the President; (3) requested that the Court notify the President of the facts alleged against him; (4) requested that the President’s testimony be heard; and (5) requested that the President be suspended from office. However, again, someone decided to shortcut the Attorney General’s requests, as only the first two requests were implemented.
Inasmuch as it seems that President Zelaya had violated the constitution, and probably would have been found guilty if properly judged, in lieu of the above, it is constitutionally challenging at best to argue if his removal was legal. In the end, the democratic process became the unintended victim.
Posted by: J Ricardo Planas | Dec 6, 2009 3:38:31 PM