Amnesty or Prosecution?

The press communique by Rodolfo Pastor Fasquelle that we translated has been getting some attention in the broader press. This is understandable because it shines light inside the dark room where negotiations have been underway to solve the problem that Jose Manuel Zelaya presents for Porfirio Lobo Sosa.

In the press communique, Pastor Fasquelle noted that the Lobo Sosa representative was unable to accept positions on which the Zelaya camp and OAS Secretary General Insulza were in agreement. One of the more substantive differences: despite abundant public rhetoric claiming that Zelaya can come back to Honduras any time without fear of persecution, the Lobo Sosa representative was demanding that he face prosecution on the remaining charges against him.

Just what those pending charges might be is somewhat unclear. The amnesty the Honduran Congress passed in January to protect participants in the coup also should extend to Zelaya, at least for those legal accusations covered by the law.

(Whether anyone should have amnesty is a separate issue; it is arguable that the damage widespread impunity does is not worth the marginal gain of voiding the most obvious political prosecutions.)

Amnesty was specifically granted for "political" crimes, but explicitly not for "common" crimes committed.

Which brings us to the interesting question of precisely what justice Humberto Palacios actually did. As reported by the Associated Press, Palacios dismissed two pending "abuse of power" charges because in his view they are covered by the amnesty. According to AP,

Zelaya still faces charges of fraud, usurping other institutions' powers and falsifying documents.

An exclusive interview with Palacios in Honduras' La Tribuna on July 23 examined the role of the judge. The interviewer worked very hard to insinuate that there was something funny going on in having the judge in the case, who was supposed to be on vacation, rule on the amnesty question.

So it is of more than a little interest that today's Heraldo carries a story saying that there is significant disagreement about how amnesty applies to Zelaya between two judges: Humberto Palacios and Elvira Meza.

As the story concisely puts it

One gave him the benefit of the amnesty, but another justice asserts that this is not legal.

According to Meza, Palacios acted irregularly, since the case was still in process (in the Court of Appeals, apparently before her). Hence this purported amnesty for abuse of authority is not, in fact, a fact. Again, quoting El Heraldo:

Elvira Meza declared without value or effect the judgment issued by Palacios, for which reason the orders of capture against the ex-officials remain in effect.

Needless to say, this contradiction undermines any attempt to spin the odd, independent, and now challenged action by one justice as somehow clearing the way for Zelaya to return to Honduras.

El Heraldo quotes a representative of the Public Persecutor who took the opportunity to reiterate that the justices are applying the congressional amnesty and that

In the same, justices were authorized to apply in their own office, or as well at the request on the parties (the Prosecutor or the defense) the amnesty that had been decreed for the political crimes in reference. He noted that the prosecutors should be aware that the amnesty applied only to the purely political crimes and not to those of corruption.

Translation: the Public Prosecutor still intends to try ex-President Zelaya while ignoring the actions of participants in the coup, by defining as "corruption" those charges he wishes to pursue.

Rigoberto Espinal Irias, described as the legal advisor of the Attorney General, has since tried to minimize the conflict between Palacios and Meza, saying it is part of "an internal problem". According to Espinal, judges can apply the amnesty to accusations of political crimes and those common crimes linked to political crimes.

Espinal Irias concludes that the amnesty was correctly applied to the accusations of a broader group of crimes than simply abuse of power: he would include crimes "against the form of government", treason, and abuse of authority. This effectively would wipe out the charges supposedly filed secretly by the Public Prosecutor on Friday June 26, 2009 (which, it has been argued, actually were filed later than the date they carry).

Espinal, like the others offering opinions, says that Zelaya and his officials must face charges of diversion of funds (for using government funds from another source to pay for costs of the cuarta urna after the armed forces kept the funds they were given for that purpose, then refused to undertake the activities for which the funds were approved).

Wonder if the AP, and venues like the Washington Post that eagerly published the original story, will print a follow-up acknowledging that Zelaya has not, in fact, been extended the amnesty so easily granted to all the actual perpetrators of the coup? We won't be holding our breath.