(Not) Talking Constituyente

The AFP, in an article entitled "President of Honduras to convoke dialogue on a National Constituent Assembly", reported today that Porfirio Lobo Sosa will begin on July 9 a series of dialogues across the country to talk with various sectors about constitutional reform.

The AFP's headline is somewhat misleading: Lobo Sosa will not be calling for a Constituyente.

What he says he will do is quite a bit different:

"After they tell us the reforms, we will translate them into proposals for the National Congress to do what is normal in Congress, to analyze, discuss, generate consensus, and reform laws or approve new laws....I will advance the discussion of reforms because we can't sit around waiting for a Constituyente to be approved."

So pretty clearly, no Constituyente; no popular debate about fundamental reorientation of the political system and codification of rights of women and minorities; just constitutional reform as business-as-usual, perpetuating existing power relations.

That doesn't merit the headline of the AFP, or the promotion the same misinformation is getting now in venues like the AP.

Lobo Sosa won't be proposing anything himself; he'll just be listening.

Historically, Lobo Sosa has used dialogues like this to cull ideas for legislation, meeting with the obvious interest groups to which he and the National Party are oriented, not, for example, the FNRP or campesino groups.

The groups presenting ideas in the present dialogues will come from recognized sectors of society (e.g. business associations, the churches, the UCD, the political parties), each in its own separate dialogue with Lobo Sosa.

The participants will be limited to invited interest groups, and if you don't fall into one of those groups you will be voiceless in this process.

So, the key will be seeing who is invited to talk to Lobo Sosa. Will the FNRP get a hearing? How on earth could Lobo Sosa think he can accommodate what the Frente is calling for within the existing government processes?

A Tale of Two Environments

Just about a week ago we wrote about the return of the Rio Platano Biosphere Reserve to the UNESCO World Heritage in Danger list.

"Proposed dam construction on the Rio Patuca river", described as a current threat in the UNESCO press release, doesn't come from some alien force: it is a project of the current Honduran administration, acting against the protests of the indigenous peoples of eastern Honduras, who have not been consulted as they should have been under the UN Declaration of the Rights of Indigenous Peoples and ILO 169, both international agreements signed by previous Honduran governments.

As we predicted, there has been little English language coverage of this threat, and what there has been focused on illegal logging and drug trafficking, the issues that the Honduran government prefers to emphasize.

Contrast the lack of analysis of threats to the Rio Platano Biosphere with coverage of the Honduran government's well-timed PR release about new protection of sharks in its waters, sent out two days after the UNESCO action, with the blessing of the Pew Environmental Trust.

No less a venue than the New York Times (albeit in a blog) covered this announcement, and other English language coverage has begun to follow, all faithfully following the lines of the original press release, congratulating Porfirio Lobo Sosa personally for leadership on shark preservation.

Predictably, no mainstream media are taking a critical look at the overall policies of the Honduran government with respect to environmental issues.

The CIA World Factbook, a fairly sober source, summarized current environmental issues in Honduras in 2010 succinctly:

urban population expanding; deforestation results from logging and the clearing of land for agricultural purposes; further land degradation and soil erosion hastened by uncontrolled development and improper land use practices such as farming of marginal lands; mining activities polluting Lago de Yojoa (the country's largest source of fresh water), as well as several rivers and streams, with heavy metals.

In the aftermath of the coup of 2009, we documented an acceleration in processing of petitions for environmental licenses by SERNA, the Secretariat of Natural Resources and Climate. By September 2009, SERNA had authorized 320 projects, valued at $368 million, for piers for cruise ships to dock on the Bay Islands, housing, pharmaceutical companies, chemical companies, hotels, and restaurants.

Under the Micheletti regime and the successor Lobo Sosa government Honduras has seen renewed advocacy for continued mining concessions. For years, people in the communities affected by mining, assisted by international NGOs, have fought government mining concessions that have caused environmental damage and health threats.

What is at stake in the Rio Patuca is well understood in Honduras, if not elsewhere.

An article in the June 26 edition of La Tribuna helps explain why the indigenous people of the Rio Platano Biosphere-- who are not intruders, but are supposed to be beneficiaries of its designation as UNESCO World Heritage-- are opposed to the Patuca dam projects. This article describes the Rio Patuca as comprising part of

the hydrological basins of the Patuca and Coco or Segovia rivers, which are a fundamental part of the hydrological balance at a national level and especially for the residents located within the park, since it is thanks to those rivers where the sources of water originate that provide them this liquid, they use them as a means of transport, for obtaining water for the irrigation of their subsistence fields and for the development of their productive activities.

The Patuca river has a great force for what was visualized many years ago as the construction of hydroelectric dams on it. Currently there is beginning the construction of the Patuca Dam III, which is not located within the protected area but is upriver so that the positive and negative impacts will affect this National Park.

These carefully worded paragraphs, while suggesting that any "negative" impacts will be balanced by positive ones (presumably, not including wiring the indigenous settlements in the reserve, and so somewhat difficult to imagine), are still better reporting on the danger posed to the Rio Platano biosphere than anything that has appeared in mainstream English language press.

The "pobladores" (residents) mentioned are members of specific indigenous groups, and they have made their objections known eloquently, as a plethora of activist websites document. Cultural Survival, to take just one example, states that

Dams would obstruct commerce and trade for thousands of people. On stretches of river between the dams, the flows, currents, and channels would be altered; people whose knowledge of the Patuca has sustained them for centuries would no longer master the river. Fish would disappear. Flood cycles that regularly wash nutrients over their agricultural lands would be changed. And road construction would open their forests to an unstoppable invasion of loggers, poachers, ranchers, and drug smugglers. The government plans to build a military base to protect the construction project. “These impacts will be fatal for the survival of the Tawahka as a unique people,” says their elected leader, Lorenzo Tinglas.

Cultural Survival gives more detail on precisely how the forest will be changed by the proposed dams, despite their location outside the boundaries of the reserve:

In the river, fish species that migrate upstream from the ocean during part of their life cycle would be blocked by the dams, threatening local extinctions. Downstream from the dam, the river’s volume, flow, and temperature would change, altering the habitats of shellfish, reptiles, amphibians, plants, and bird species. Upstream, the reservoirs would submerge rainforest vegetation, soils, and organic matter, which would emit greenhouse gases as they rot.

What makes the contrast in environmental approaches to the shark reserve and the Patuca dam intelligible as policies of one and the same government?

Understanding that in the end, the current Honduran administration is motivated by business.

In the Caribbean, preserving sharks will help preserve and increase tourism. The Rio Platano Biosphere might well face a future of increased tourism, if current plans for new airports continue, but for the moment, wild rivers in Honduras are economically most beneficial if they are dammed for hydroelectric generation.

New Political Party for 2013

Sunday the Frente Nacional de Resistencia Popular (FNRP)in Honduras voted to form a political party, called the Frente Amplio de Resistencia Popular (FARP) to participate in the 2013 elections. The party will be completely separate from the FNRP, which will remain a force for social change within the country.

Manuel Zelaya Rosales told the press that this new party will not seek to become a party by Congressional decree, but rather will go through the process of collecting signatures and becoming authorized in the usual way with the Supreme Electoral Tribunal.

One interesting quote from Zelaya suggests that membership in the new party will be by voluntary association, and that members will not be asked to abandoned their current party affiliations. How exactly that will work for things like internal elections was not made clear.

Candidates will be nominated by local assemblies, then elected by internal elections in FARP to run in the general elections.

This separation of the FNRP from the FARP would seem to resolve the essential tension between those in the Frente that want to become a political party, and those who want it to remain focused on social reforms. The press reported this was a consensus decision on the part of the delegates to the meeting.

The next step will be to hold another extraordinary session to define the party's governing rules and charter, and to collect around 47,000 signatures to register as a political party with the Supreme Electoral Tribunal.

Powerless

The Minister of Human Rights and Justice, Ana Pineda, recommended against changing the Honduran constitution to allow detention of possible criminals for 72 hours rather than the 24 hours the constitution currently allows. This is the period of time Police can hold a suspect without bringing them before a judge. Pineda said the reforms

"contravene and consequently regress the enjoyment of rights and fundamental liberties of the Honduran population."

She notes that the proposal does not advance Honduras with respect to Honduran human rights, but rather is a backward step.

One hundred and twenty eight Congress members heard her arguments, then 108 of them, as Proceso Digital put it, "ignored it" and voted to approve the constitutional change, allowing 48 hours detention before being presented before a judge, and adds a new ruling a judge can issue that orders you held if there exists evidence you are the author or accomplice in a crime.

As we've noted since the appointment of this new cabinet position, the proof of its value is in the actions it can take, not the words that it says. Apparently she is powerless to affect the national discourse on human rights, which by her own admission, with this change, took a step backwards.

What can she do?

UNESCO World Heritage Endangered For Profit

The UNESCO World Heritage Committee has added the Rio Platano Biosphere in Honduras back onto its list of "World Heritage in Danger".

Rio Platano had only come off the list in 2007, after being listed as in danger from 1996 on.

Coverage of the action taken cited "lack of law enforcement" allowing a host of dangers to the biosphere:

illegal settlement by squatters, illegal commercial fishing, illegal logging, poaching and a proposed dam construction on the Patuca River...

Notice anything in that list that seems different? the first four are all things that are against Honduran law, but are happening anyway (settlement, commercial fishing, logging, and hunting).

But the final danger listed is different: it is actually a project being promoted legally.

While UNESCO applauded the Honduran government for asking that the biosphere be put back on the danger list, it would seem someone in that very government might have some influence on the threat coming from the proposal to construct dams on the Patuca River.

The environmental NGO International Rivers describes this threat simply and clearly:

On 17 January 2011, the Honduran National Congress approved a decree for the construction of the Patuca II, IIA, and III dams on the Patuca River... The proposed development involves flooding 42 km of intact rain forest, all of which was on the legislative track to either become part of the Patuca National Park or the Tawahka Asangni Biosphere Reserve.

Note the wording here. The threatened land was on the legislative track for protection. This is what activists mean when they point out that environmental conditions have deteriorated since the coup of 2009. Business interests rule, and dams and power generation outweigh other interests.

Among those other interests: indigenous peoples.

For more than a decade, the Indigenous peoples of the Tawahka, Pech, Miskito, and Garifuna tribes have steadfastly opposed dam construction on the Patuca River, and they continue to do so, fearing the impacts to their survival and to the river ecosystem within the Río Plátano Biosphere Reserve.

International Rivers notes that this represents a failure of the Honduran Government to comply with the UN Declaration of the Rights of Indigenous Peoples and ILO 169.

As proponents of a constitutional assembly from within indigenous groups have noted, one of their goals is to ensure that the Honduran Constitution will recognize the rights enshrined in the international agreements that it is supposed to be following.

In a particularly feverish endorsement of the project, earlier this week Israel Turcios Rodriguez published an editorial opinion in La Tribuna lauding Porfirio Lobo Sosa for his visionary leadership in inaugurating the project, financed by the International Development Bank and to be carried out by a Chinese company.

Turcios Rodriguez, remarkably, says nothing explicit about the objections of the indigenous peoples who are united against the Patuca dam projects, unless they are the subject of this somewhat less than clear sentence:

Doubtless, in these cases some few citizens will come out damaged, but others in the majority will come out highly benefited.

This is precisely the kind of logic that makes constitutional protections for the rights of endangered minorities so necessary. Pity that it is only the danger to the landscape that has any likelihood of coverage in the English language press.

And for the press, unfortunately, the UNESCO Committee offers a glittery distraction from the real, human-made, avoidable threat to both the livelihood of indigenous people and the continued existence of a viable biosphere: "the presence of drug traffickers", mentioned in comments after the committee decision. But it is not drug traffickers financing, building, or profiting from the Patuca dam project.

Blatant Judicial Misconduct

It is distinctly discouraging to read that another Honduran judge has acted in ways that are, to put it mildly, at odds with Honduran law.

But perhaps not surprising considering that the accused in the case is a former Zelaya administration official, who, despite Porfirio Lobo Sosa's guarantees, are apparently not going to be given due process and protected from legal harassment.

The Code of Criminal Procedure in Honduras states in Article 140 that courts have to provide copies of rulings to interested parties:

A Judge arranges for the conservation of the authentic copy (original) of acts, interlocutorial orders, and final sentences and any other act that they consider pertinent....The Secretary orders the preparation of copies, reports, or certifications, when they are requested by a public authority or by people with an accredited legitimate interest in obtaining them...."

A certified copy of a legal decision is necessary to prepare an appeal, because the written decision must contain the legal justification for the order.

Article 143 says:

Rulings and edicts will be issued automatically and without delay....In oral hearings, the resolution will be dictated immediately after the termination of them.

The parties to the criminal case then have 3 days to challenge that order, correct factual mistakes, and so forth (Article 143).

In the case against Enrique Flores Lanza, Judge Claudio Aguilar refused Friday to provide an authentic copy of his ruling specifying house arrest and ordering Flores Lanza within 30 days to pay 27 million lempiras (which itself is legally questionable, since the amount is supposed to be set with consideration of the person's financial abilities) or be sent to the National Penitentiary for holding until trial.

That is a violation of the Honduran Code of Criminal Procedure. It is judicial abuse of authority, as Raúl Suazo, Flores Lanza's lawyer, asserted. Any appeal of Judge Aguilar's order must be filed by Monday and needs to address the legal arguments Judge Aguilar used to support the decision.

Judge Aguilar's odd behavior led Raúl Sauzo to file an appeal with the Appeals Court asking for a stay because the judge declined to provide a true copy of the order:

"We are filing this appeal because the order for the hearing of the accused has not been signed and provided in the legally prescribed form to the legal representatives of Flores Lanza; it hasn't been written by Judge Claudio Aguilar,"

said Suazo.

There's actually more strange behavior by Judge Aguilar.

Apparently he didn't let Suazo or Flores Lanza make any declarations during the arraignment. If Raúl Suzao was not allowed to make declarations during the hearing, this also violates the Code of Judicial Procedure, Article 15, the right to have assistance with defense.

And that would mean the orders against Flores Lanza must be set aside. Article 15 states that violation of this right

will produce absolute nullification of the judicial acts that were produced without the participation of the defense lawyer of the accused.

According to Suazo, Judge Aguilar's actions have indeed set up the conditions to file for nullification of the order due to procedural violations by the court.

And there is one final twist, one other example of the surreal in what passes for a judicial system in Honduras.

Any appeal of Claudio Aguilar's ruling must be heard by the Appeals Court. The chief justice of the Appeals Court, Magistrate Sixto Aguilar, is Claudio Aguilar's father.

When Manuel Zelaya Rosales's defense lawyers appealed a previous ruling of Claudio Aguilar's, Magistrate Sixto Aguilar rightly recused himself.

Expect to see that happen again. And maybe we can expect on the appeals court level, again, Claudio Aguilar's ruling will be overturned. Anything else is simply injustice.

Lobo's Secret Pact Redux

Remember Roger Noriega's alarmist article on Fox about Porfirio Lobo Sosa's supposed "Secret Pact" with Hugo Chavez?

We first addressed it here.

Now, El Heraldo has published the text of what purports to be a diplomatic cable from the Venezuelan Embassy in Honduras back to Venezuela, detailing a meeting between Ariel Vargas, the Embassy's chargé d'affaires, and Porfirio Lobo Sosa in mid May of this year.

This should be the same cable Noriega refers to in his article, as we cannot imagine there are two diplomatic summaries of that meeting. Its content, as we suspected, bears no resemblance to what Roger Noriega says it said.

I would translate the cable for you, but it's long.

So, here are the interesting things Vargas reports Lobo Sosa telling him. They aren't Noriega's fantasies, but then, we all knew that, right?

The cable does not, as Noriega alleges, have Lobo Sosa "pledging his loyalty to Chavez". There's no description of Lobo Sosa as a "fervent revolutionary."

Lobo Sosa initiated the meeting, according to Vargas, after failing to reach Chavez by phone. He wanted to accelerate the negotiations with Chavez and Colombian President Santos and had some points he wanted to raise with respect to Zelaya's four demands.

Lobo Sosa noted the precarious political position of his government. This should come as no surprise to anyone reading this blog on a regular basis. Lobo Sosa has little traction, even in his own party.

Vargas says Lobo Sosa's strategy is not to come between opposing forces in Honduras, but to mediate between them, bringing elements of both sides forward in negotiated solutions.

As any realist knows, a Constituent Assembly is impossible given current politics in Honduras. It cannot happen without a major change in political opinion.

Vargas reports that Lobo Sosa says as much. Vargas reports that Lobo Sosa also says, to the extent that he can, he will work tactfully to change that opinion. However, he insisted that commitment to hold a Constituent Assembly could not be part of the Cartagena Agreement.

Lobo Sosa did not, as Noreiga claims, "say that he needed help neutralizing opposition within his own Nationalist Party and the Catholic Church."

What he did say is that both he and Chavez needed to work to build support for a Constituent Assembly with both the Catholic and Protestant churches in Honduras.

In response to Ecuador's demand that the authors of the coup be punished, Lobo Sosa noted that he had been called on the carpet by Congress (many members among the authors of the coup) when, traveling in Europe, he simply referred to the June 2009 coup as a coup.

Vargas reports that Lobo Sosa then joked that if he signed such an agreement, Chavez would quickly be receiving him in Venezuela as they would throw him out of Honduras as they had Zelaya.

The cable, in short, is a frank discussion of the four points Zelaya had proposed: what was, and was not, politically possible for Lobo Sosa.

Lobo Sosa, it appears, had not "posed as a fellow revolutionary", though Noriega was right that he did ask for Chavez's patience.

It was not the military's backing Lobo Sosa said he would lose if he called it a coup, but rather Congress's.

So where does Noriega's fantasy of Lobo Sosa the revolutionary come from? we suggest three sources: first, anyone negotiating with Zelaya was betraying the right wing. The suspicion that Lobo Sosa shares a desire to change the constitution to allow the possibility of staying in power is there to be mobilized against him, as it now is against any Honduran president.

Second, anyone talking to Hugo Chavez.... well, we all KNOW what that means, comrade.

Finally, and this is the peculiarly Honduran piece: Lobo Sosa, after all, went to school in the Soviet Union. It seems for some people, no amount of right wing conversion can entirely clear up a mis-spent youth.

"Constitutional Coup" Revisited

In 2009, shortly after the Honduran coup d'etat, we followed opinions rapidly posted all over the internet.

Most were uninformed; a majority in the early days were from apologists for the coup.

A repeated claim was made, that luckily disappeared as the opinions of constitutional scholars were published. This can be paraphrased simply:

"They aren't like us; they can't afford the kind of rule of law we have; they have to let the army have a stronger role."

Now, two years later, that line of argument has been resurrected, and expanded to cover much of the rest of Latin America.

The Center for Strategic and International Studies argues that what it calls "extra-electoral means" of politics (aka military interventions) "may enjoy both legitimacy and constitutional mandate".

Here's all you really need to know about this "report":

• it cites no opinions of constitutional legal scholars.

• it cites almost nothing specifically about any of the countries involved

• in the one instance where it cites a recent research resource, the report it cites doesn't say what they claim it does.

The poster child for their argument is, not surprisingly, Honduras. The "facts" about Honduras that the CSIS authors present are inaccurate, and their analysis of the Honduran Constitution diverges from all those produced by actual constitutional law experts.

The authors say the 2009 coup in Honduras "exemplified" what they label a "dilemma":

while the United States and the OAS push the democracy agenda, the Honduran and other Latin American constitutions say something different. Because Americans strongly believe in civilian control over the military-- and that any armed forces meddling in the political order represents a usurpation-- it is hard to conceive that other norms, even constitutional ones, may prevail in other countries.

Or, to paraphrase:

"They aren't like us; they can't afford the kind of rule of law we have; they have to let the army have a stronger role."

The authors summarize their understanding of sections of the Honduran constitution concerning the role of the armed forces as if they were contradictory:

the armed forces are 'permanent, apolitical, essentially professional, obedient, and non-deliberative'. But then it says 'members of the military are not obliged to carry out illegal orders or those which involve committing a crime'.... The mission of the armed forces is the familiar one of defending the territorial integrity and sovereignty of the republic, but then the constitution adds, 'the order and respect of the Constitution, the principle of free vote, and the rotation of the Presidents of the Republic'...

By stringing those three quotes together, the CSIS authors make it sound like these sections of the Honduran Constitution are all specific to the Armed Forces.

But in fact, the middle clause-- about not following illegal orders-- is not specific to the military. Contained in Article 323, it reads in full

Officials are trustees of authority, responsible legally for their official conduct, subject to the law and never above it.

No official or public employee, civil or military, is obligated to carry out illegal orders or those that would require the commission of a crime.

The CSIS authors use this clause to support their argument that in many Latin American countries, including Honduras, the military has a specific constitutional mandate to intervene in government.

But in the Honduran constitution, this is not a part of the articles defining the role and functions of the military; it is part of a general exhortation for government employees to follow the law.

The authors argue that the cited language was

precisely the issue when President José Manuel Zelaya ordered the military to carry out an illegal referendum he had engineered to amend the constitution to provide for an unconstitutional second term for him.

Except that, as any reader of this blog knows, that is not what happened.

We are weary of reiterating the facts, but for the record: the public opinion poll scheduled on June 28, 2009 was on the narrow question of whether the populace did or did not want to see an item on the November ballot asking whether voters at that election were in favor of convening a constitutional assembly at some future point.

Neither the June poll nor the November vote, had either actually occurred, would have allowed or required a second presidential term.

We actually have some bases to know what the Zelaya administration saw as goals for a constitutional assembly, from published statements by the former minister of defense and minister of culture, sports and arts.

In addition, the Zelaya administration had prepared materials-- seized and publicized by the Armed Forces-- for the campaign for the November vote. These describe reforming the political system so the votes of the citizenry mattered; so that a wider range of civil rights enshrined in international treaties would be guaranteed in the constitution; and so that the rights of a variety of marginalized groups would be protected.

Leaving aside the errors of fact about what actually happened, what constitutional law scholars have the authors of the CSIS paper consulted in reaching their conclusion about the legitimacy of military intervention in Honduran government?

In a word: none.

They do reference a Congressional Research Service report they say supports the idea that the coup was constitutional under Honduran law.

The report they reference, though, says no such thing: instead, it does a good job of accurately reporting the facts, including those the CSIS could not get right (e.g. that the June 28 vote was a non-binding opinion poll).

Perhaps they intended to reference an earlier Congressional Research Service report by the same author, Peter J. Meyer, recapitulating the main events of the 2009 political crisis.

But that report, which does consider the constitutionality of the actions taken, says correctly that "most analysts" labeled the military's actions as unconstitutional.

It includes explicit citation of Honduran legal scholars who have produced some of the most authoritative legal opinions against the "constitutionality" argument, including distinguished legal scholar Edmundo Orellana-- the man who resigned rather than follow Zelaya's orders as defense secretary.

There are actually many more examples of such opinions written in Spanish, which perhaps the CSIS authors thought were inaccessible to their readers. But they might have included reference to a highly visible English language report by constitutional legal scholar Doug Cassel.

It seems most likely that CSIS actually intended to reference an amply critiqued report by the Congressional Law Library (not the well-regarded CRS), a report that got its opinions about Honduran constitutional law from personal communications from a Honduran lawyer, not a constitutional law expert, who came to Washington to advocate for the Roberto Micheletti regime in summer 2009.

The conclusions this CLL report reached were explicitly disclaimed by members of the Honduran Congress in late 2009; that is, they were repudiated by some of the very people whose authority and procedures it purported to describe accurately.

Following their protest, members of the US Congress also wrote to ask that this document be corrected.

Outrageously, with no citation of any constitutional legal publications, the CSIS publication concludes that everything done by the Honduran Armed Forces in June 2009 was fine, "except for the possibly unconstitutional act of expelling Zelaya from the country without a trial, and even that was arguable".

To our knowledge, no one has ever argued that the expatriation was legal.

The CSIS analysis can be looked at from another perspective: it actually overemphasizes the role of the military in the Honduran coup.

In their zeal to argue for an inherent constitutional right of the Honduran military to commit a coup, they missed the point that this coup was actually carried out by the civilian authorities: the Supreme Court and Congress.

The Honduran Armed Forces themselves were at some pains throughout 2009 to make clear that they had not, in fact, initiated anything, claiming that they acted under orders of the Supreme Court.

If they actually had the constitutional mandate that CSIS imagines, why did they distance themselves from it?

Because no such mandate existed.

Let's look at what the Honduran Constitution actually says about the role of the Armed Forces.

Article 272 defines the role of the Armed Forces. Here is is in its entirety, rather than in the shreds that CSIS chose to excerpt in support of their very odd argument:

The Armed Forces of Honduras is a National Institution of permanent character, essentially professional, apolitical, obedient and non deliberative. It is constituted to defend the territorial integrity and the sovereignty of the Republic, to maintain the peace, the public order, and the dominion of the Constitution, the principles of free suffrage and the alternation in the exercise of the Presidency of the Republic.

To cooperate with the National Police in the conservation of public order to the effect of guaranteeing the free exercise of suffrage, the custody, transport, and vigilance of the electoral materials and all the other aspects of the security of that process, the President of the Republic shall place the Armed Forces at the disposition of the Supreme Electoral Tribunal, from one month before the elections, until the decision of the same.

Article 274 expands on other missions that the Armed Forces can have. Nothing in it includes or implies the kind of role that the CSIS authors propose. The closest is a paragraph that specifies that the Armed Forces will have a role in combating terrorism, drug trafficking, and organized crime, which ends with the phrase

as well as in the protection of the Powers of State [branches of government] and the Supreme Electoral Tribunal, at their request, during their installation and functioning.

This would seem to mean that Congress, the Supreme Court, the Executive branch, or the TSE can request security from the Armed Forces.

Nothing here seems to say that a branch of government could request the Armed Forces to attack another branch of government over a dispute-- that would violate the very fundamental requirement that the Armed Forces be apolitical and non-deliberative.

Far from having a constitutionally mandated role to intervene in government, members of the Armed Forces are subject to unique limitations in Article 37, on the rights of citizens, specifying that some members of the Armed Forces may not have the right to vote.

Article 240 specifies that members of the military, or those who were in the military in the previous 12 months, are ineligible for election as President or Vice President.

It seems remarkably clear, if one reads all the constitutional language pertinent to the military, that the Honduran constitution was intended to ward off the specter of military intervention in governance.

The failure by the CSIS authors to cite actual discussions by constitutional experts; the selective culling of fragments of language from the constitution, presenting them out of context; and their failure to meet the minimal criterion of describing what actually happened, makes this report a practice of ideological rhetoric, not-- as it purports to be-- an analysis of the facts.

Constitutional coups may be written into founding documents somewhere in Latin America. But not in Honduras, and no amount of wishful thinking will make it so.

Miguel Facussé Blinks

Miguel Facussé Barjum, head of DINANT Corporation, is waging a public relations campaign to try and improve his image, and that of his company.

At the same time, he is sharpening his attacks on those who criticize him.

On the PR side, he has received positive publicity for his scarlet macaw research center in Zacate Grande. A year ago he gave over 100 titles to properties in Zacate Grande for things like the town water tank, the churches, etc. with the idea that the town would protect wildlife and encourage tourism.

Today he is in a fight with about 300 campesinos in Zacate Grande over land rights and the right of their radio station to operate.

His recent actions suggest he has reached the end of his rope. In short order, he has sued prominent critics; taken out self-promoting newspaper ads, including one in which he sought to unilaterally renegotiate the terms of a settlement with the Honduran government over disputed land in the Bajo Aguan; and continued his campaign of seeking police enforcement of judicial orders against campesinos living on land he refuses to cede.

Targets of his suits against Honduran critics recently included Monsignor Luis Alfonso Santos, Bishop of Santa Rosa de Copan, and Andres Pavon, head of a major human rights organization in Honduras, the Comité para la Defensa de los Derechos Humanos (CODEH).

Both were sued for defamation of character and, ironically, purported human rights violations.

The case centers on comments Santos and Pavón made associating Miguel Facussé with the deaths of 14 campesinos (so far) in the Bajo Aguan.

The cases against both gentlemen were dismissed by the Tribunal de Sentencia of Tegucigalpa, though Facussé's lawyer, Antonio Ocampo, wants to appeal, or to refile the charges in Choluteca or Olancho where he has friendly judges.

Bishop Santos issued an apology for his use of the word "arabe" to describe Facussé, whose family has been Honduran for several generations after emigrating from the Middle East.

But none of his critics have been discouraged from discussing the facts Facussé most objects to having mentioned, the role of his hired enforcers in the deaths of campesinos in the Bajo Aguan.

In his latest move, on June 10, Facussé took out a newspaper advertisement stating the terms on which he would accept government compensation in return for the disputed land in the Bajo Aguan. This reverses positions he has held as recently as June 7.

Then, in an interview with radio station HRN, Facussé claimed that much of the land was worth 300,00 lempiras/hectare, but that he would sell it for 135,000/hectare to the government. A further 800 hectares he claimed were worth 400,000 lempiras/hectare, for which he wanted full price from the government.

But the land wasn't really worth what he was asking, and the government took a hard line on the price.

In today's paid advertisement, he said he accepted the government's offered price for 3200 hectares of land, at prices that vary between 76,000 and 103,000 lempiras per hectare.

But he continued to try to bargain, saying that he would not transfer three farms the government plans to transfer to the campesinos represented by MUCA. Cesar Ham, head of INA, rejected Facussé's offer since it would violate the government's agreement with MUCA.

The farms Facussé does not wish to transfer are called Marañones, Lempira, and La Concepción. Marañones, 400 hectares, he proposes to give to the Cooperativo de Empleados de DINANT, set up for the employees who will lose their jobs in this land transfer.

Lempira and La Concepción, totaling some 894 hectares, he insists on keeping. What's unclear is what's so special about these two farms, located in Tocoa proper.

Why did Facussé hold out for ridiculously high prices for the land, then give in and accept the government's much lower rate?

The newspaper advertisement offers a clue. In it he says that he seeks to collaborate with the government to establish an environment suitable for foreign investment, something that he needs to keep his business running.

Not only did his advertisement fail in his goal of getting a settlement on his terms; it also perpetuated his campaign against the campesino activists in the Bajo Aguan. In it, he announced that he had solicited and received orders from a judge in Tocoa to remove the campesinos who have occupied the farms he does not wish to sell to the government, and he was turning these judicial orders over to the police for enforcement.

Facussé's continuing conflict with campesinos and publicity about the violence against them has cost his company. Significant international financing for his biodiesel project was withdrawn this spring by two separate European sources. This biodiesel plant was to be supplied from his African oil palm farms in the Bajo Aguan.

While attempting to generate good public relations, Facussé has managed to point out that he is the impediment to a Bajo Aguan solution. The scrutiny his position in the Bajo Aguan has invited from international investors is a problem that affects all Honduran businesses, not just DINANT Corporation.

The government of Lobo Sosa knows this, and it knows it cannot go back on its agreement with MUCA and retain its own international funding. The government could simply expropriate the farms in question, and pay the appraised value of the land. It is a credit to Miguel Facussé's power that so far it has not done so.

But when Facussé began to take out newspaper ads to try to take his case to the public, it was a sign that he knows he has lost control of the message internationally, and probably nationally as well.

Mammoth excitement

And, we are afraid, equally mammoth confusion.

Wednesday Tiempo carried a follow up article about the discovery of the tusk of a fossil proboscidean (ancestral members of the group represented today by the elephant).

The original story was reported in all the newspapers in Honduras over the weekend.

It caught our attention because the Institute of Anthropology and History has taken the leading role in the excavation of the fossil.

While archaeologists are used to being mistaken for palaeontologists, these are two separate disciplines, a distinction that seems to have escaped the current head of the Institute of Anthropology and History, Virgilio Paredes, who is quoted as saying "In all this zone apparently there are many bones of prehistoric animals, but there have never been archaeological studies".

The current find, a tusk from a proboscidean in a bulldozer cut in Tegucigalpa, comes from roughly the same area where, 12 years ago, a proboscidean rib bone was found.

The Institute of Anthropology and History previously took charge of a similar find in Olancho in 2008.

The original news stories proposed identification of the new tusk as that of a mastodon:

"For us, this tusk belonged to a mastodon because it is smaller and more straight than that of a mammoth, and it was the most common animal in these kinds of lands"

archaeologist Neil Cruz was quoted saying.

Actually, a review of the literature shows that mastodon finds are extremely rare south of Mexico (where 15 have been reported).

The only Central American mastodon reported in a 2010 review article was actually found in the San Pedro Sula area.

It is a second species-- the mammoth-- that is common in Central America.

Press reports suggest Paredes is, in general, somewhat ill-informed about megafauna. He was quoted as saying

“This is an important find for Honduras and Central America, because the mammoth and mastodons are almost always found in northern zones, in Alaska, Canada, and in Europe."

Um, no.

Actually, Honduras has a distinguished and long-established record as a prominent location for proboscidean fossils, especially for the earliest species.

Honduras is considered by scholars to have the most extensive Central American record of Miocene proboscidea and to a lesser extent, Pleistocene ones.

We are dealing with four separate species with a well-understood history.

The first ancestral elephants passed into the Americas from Asia across the Bering Strait about 16 million years ago. They first appeared in Central America about 7 million years ago and persisted until extinction at the end of the Pleistocene, about 12,000 years ago.

Gomphotherium was the first proboscidean to inhabit North America, in the Miocene, from 16 million years ago to about 5 million years ago. It had a short trunk and small tusks and was widely distributed. It gave rise to Cuvieronius, which had a longer trunk and tusks and was found in the succeeding Pliocene and Pleistocene periods.

In all, some 74 locations in Central America have yielded fossils of ancient elephants recorded by scholars. Of those, five are in Honduras:

Gracias a Dios -- Gomphotherium
Comayagua -- Mammoth
San Pedro Sula -- Mastodon
Tambla -- Cuvieronius
Yeroconte -- Cuvieronius

Lucas and Alvarado (2010) write:

Gomphotherium fossils in the Gracias Formation are numerous, well dated ...and provide what we regard as the oldest reliably dated proboscidean records in Central America.

There are lots of anecdotal reports of proboscidean bones being found in Honduras as well, including specimens from Comayagua exhibited in Europe in the 1890s, others from Choloma (north of San Pedro Sula), and from Santa Barbara, Olancho, Gracias, and Siguatepeque.

It is important to note that to date, there are no demonstrable human-proboscidean associations anywhere in Central America.

The dating of the finds would be critical in evaluating whether Honduras could possibly be the first site to yield reliable evidence of human association. Personnel from the Honduran Institute are quoted as saying that the specimen could date between 12,000 and 15,000 years ago-- that is, the end of the Pleistocene.

In the Americas, those dates might overlap with human occupation, but there is nothing to suggest this in Honduras.

The oldest human occupation documented in Honduras is from the Cueva del Gigante, with the earliest radiocarbon dates approximately 9220-8750 BC, much later than the last mastodons or mammoths. There was no evidence for these megafauna species in levels assigned to the late Pleistocene on the basis of remains of extinct horses.

Honduras is especially noted for proboscid specimens dating before the Pleistocene, a point underlined by Spencer Lucas and Guillermo Alvarado in their 2010 review article.

None of this actual history of abundance of proboscid fossils across Honduras has stopped a bizarrely jingoistic argument based on the supposed unusual nature of this find from being advanced by the Tegucigalpa newspapers. In this vein, La Tribuna quotes Paredes saying “Tegucigalpa has something significant because it could be a scientific zone".

This gets further amplified by two strange suggestions by Paredes, the current occupant of the position of Director of the Institute of Anthropology and History, who himself possesses none of the academic credentials in archaeology, history, or anthropology expected for the position.

First, he laments the absence of a world-class museum where this find-- which historical precedent, we remind readers, suggests has nothing to do with human beings and their history-- could be exhibited:

“We will concentrate all this week in this zone because practically it is cultural patrimony of the world”...

“In Honduras there is no museum as international standards require and we have discovered much, but we cannot exhibit it, I think that it will be a management action that the central government will have to undertake so that we can present the riches that we have”.

It would have been nice if he found the actual archaeological and historical heritage of the country sufficient reason to seek support for museum development, but oh well, never mind, he has this one covered.

But what leaves us bemused is his second suggestion:

“Unfortunately we do not have the equipment, the human resources, nor the economic ones to carry out all the investigations, but for this we are going to call on the international community, beginning with the History Channel".

I guess from the perspective of a businessman, having the History Channel come and do palaeontological research might even make sense. We cannot avoid thinking about the many generations of academics who held the same position and worked hard to professionalize the Institute. What must they be thinking?

*****************
Sources:

Lucas, Spencer and Guillermo Alvarado
2010 "Fossil Proboscidea from the upper Cenozoic of Central America: Taxonomy,
Evolutionary and Paleobiogeographic significance", Revista Geológica de América Central 42: 9-42.

Polaco, O. J., J. Arroyo-Cabrales, E. Corona-M., and J.G. Lopez-Oliva
2001 "The American Mastodon, Mammut Americanum in Mexico", in The World of Elephants -
International Congress, Rome, 2001.

Privatize Copan?

That's effectively what sources in Honduras say is under serious discussion at this very minute.

They have provided us with a copy of a document dated June 8, 2011, issued by the Union of employees of the Instituto Hondureño de Antropología e Historia.

The statement is motivated by news that "private individuals with partisan ambitions intend to restructure the IHAH"... and "place in danger the Cultural Patrimony of the nation".

They reiterate the charge that the current head of IHAH has hired unqualified people for political motives, objecting that IHAH, with its unique mission, "should not be handled as if it were an employment agency for private individuals and/or political agreements."

Then comes the punchline:

By means of official information we know that today there will be submitted for discussion in the National Congress a project that includes as one of its points the sale of entry tickets to the Parque Arqueológico de Copán by the municipality of Copán Ruinas, a situation contrary to the survival of the Instituto Hondureño de Antropología e Historia, since the funds obtained from this park are those that sustain the labor of protection and conservation of the Cultural Patrimony of Honduras.

Based on details published by Darío Euraque in his book, El golpe de Estado del 28 de junio de 2009, el Patrimonio Cultural y la Identidad Nacional provides income critical for the Institute in pursuing its mission. Transferring that income to the town of Copan is a shocking proposal on many levels.

It would presumably leave the IHAH with the responsibility for management and preservation of the site, without the resources needed to do so.

It would turn this World Heritage Site into nothing more than a money-making tourist attraction. While it may shock international readers who enjoyed visiting Copan, the purpose of the Institute of Anthropology and History is to manage historic sites as points of reference for the population of Honduras in their understanding of their history, heritage, and identity.

And of course, it is the ultimate demonstration-- both in the sense of most recent and most unimaginable-- of an erosion of the management of cultural patrimony that started when the de facto regime of Roberto Micheletti politicized the Ministry of Culture and the Institute in particular.

Backdated Charges?

Was the paperwork that provided the flawed legal justification for the coup backdated?

A cable recently posted to Wikileaks provides hints supporting this conclusion, widely held by opponents of the coup.

This cable, send on June 28, 2009 from Ambassador Hugo Llorens to the State Department, announced the forced expatriation of Zelaya. It notes that the Honduran military told the US Defense Attaché that they had acted on instructions from the National Congress and Supreme Court to prevent President Manuel Zelaya Rosales from carrying out the Cuarta Urna poll scheduled for that day.

However, the very next paragraph of the cable notes that members of Congress and the Public Prosecutor, Luis Rubí, when contacted by the Embassy, said they had only ordered the military to confiscate the polling materials, and had not requested that Zelaya be arrested.

Roberto Micheletti, when contacted by the Embassy that day, repeated the claim that Zelaya had planned to convene a National Constituent Assembly right after the poll, and "that Congress had acted to preempt him."

The contradiction between what Micheletti, then head of Congress, and other members of congress told the US ambassador simply underlines what has long been clear: Micheletti and other agents of the coup deliberately ignored due process, denying many members of congress who opposed the coup the right to participate in the voting that attempted to legitimize the coup after the fact on Sunday morning.

But the reported comments of the public prosecutor, Luis Rubí, add something new to the mix.

Shortly after the coup, the Supreme Court posted online voluminous documents they claimed justified the actions legally. This included a long legal case, said to have been filed by Rubí under a request for secrecy, dated June 26, two days before the coup.

This date would have come just after Ambassador Llorens had a conversation with Chief Justice Jorge Rivera Aviles, in which Rivera Aviles said the only way a sitting president could be constitutionally removed from office was through the Public Prosecutor filing a criminal case with the Supreme Court, and being adjudicated guilty of a crime.

Yet on June 28, Luis Rubí denied to Llorens that he had requested the arrest of Zelaya; the military did not say they were acting for the Public Prosecutor; and Micheletti attributed the orders to "preempt Zelaya" to Congress, not the Supreme Court or the Public Prosecutor.

Either the Supreme Court paperwork was backdated to June 26, or everyone was lying to Ambassador Llorens on June 28.

A subsequent cable dated July 2, 2009 contains a timeline of events written by Ambassador Llorens to the State Department.

This timeline has no entry for charges filed by Public Prosecutor Luis Rubí on Friday, June 26, as claimed in the documents posted by the Supreme Court.

It only states that on June 30, e.g., two days after the coup d'etat, that Rubí filed 18 charges against Manuel Zelaya Rosales, in an ordinary criminal court, following a document issued by the Supreme Court that categorized Zelaya as a private citizen as a consequence of the congressional actions of June 28.

Llorens writes:

While there have been claims that the Supreme Court issued a warrant for Zelaya's arrest, the president of the Supreme Court has told us that this is not true. The only warrant we are aware of is one issued either late on June 25 or early on June 26 by a lower court ordering the seizure of polling material. It appears that the Attorney General, the military conspired with Micheletti and other leaders of Congress to remove Zelaya based on their fear that he planned to convene a Constituent Assembly immediately after the June 28 poll.

Either Rivera Aviles was lying to Ambassador Llorens, or there was no arrest warrant issued on Friday June 26, secret or otherwise, as stated in the Supreme Court documents.

These cables also go to the heart of the justification offered for the actual timing of the coup.

The crux of the justification is the allegation that Zelaya was going to call a National Constituent Assembly right after the Cuarta Urna poll. This was a rumor spread by the online newspaper Proceso Digital. On June 27, 2009, it falsely claimed that the proclamation establishing the Cuarta Urna published in the official Gaceta said this.

Llorens writes on July 2:

The online newspaper Proceso Digital prints an article alleging Zelaya's decree, published in the 25 June issue of the official paper La Gaceta, states that the 28 June poll will immediately convoke a constituent assembly. The newspaper reports that Zelaya has changed the rules at the last minute, and the poll will have consequences not previously reported.

This fits. It's the justification provided by Micheletti to Ambassador Llorens for the coup d'etat on the day of the coup. Llorens continues:

Micheletti's supporters say that publication calls for the convening of the Constituent Assembly. However, this is patently false, the publication simply states: "Are you in agreement that in the general elections of 2009, there be a fourth urn in which the people decide the convocation of a National Constituent Assembly."

What these cables are clarifying is precisely how much evidence there is for a conspiracy to sanitize the coup d'etat, a conspiracy that included producing documents purportedly from the Friday before the coup, documents that on the day of the coup, all involved disclaimed.

Hugo Llorens in the Run-up to the Coup d'Etat

Wikileaks has released another cable from Ambassador Hugo Llorens to the US State Department, this one dated June 26, 2009 and covering the events of the night of June 25, 2009, three days before the military carried out a coup d'etat.

A Spanish translation of the cable was published by Tiempo, although none of the other Honduran papers seem to be motivated to cover it.

In the summary paragraph, Llorens reports:

On the evening of June 25, the National Congress came close to bringing to the floor a vote on the removal of President Zelaya from office.

We already knew this. We were in Honduras watching events unfold on television, and we had been told to expect something like that.

Ambassador Llorens discusses how he and other senior US diplomats in the country worked to deter Congress from taking this step. He reports that they successfully deflected Congress into opening an inquiry into President Zelaya's possible legal violations. We believe this is the first confirmation of the rumored role of the Ambassador in ending the rush toward a vote by the Honduran Congress that night.

Immediately following the passage above, Llorens goes on to write

Supreme Court President Rivera told us that Congress does not have the power to impeach the President, since the repeal of such a law in 2005. Currently the only means to remove a sitting President is through the filing of a criminal case filed by the Public Ministry with the Supreme Court itself.

In other words, the Chief Justice of the Honduran Supreme Court told Ambassador Llorens on June 25, 2009, that Congress had no power to impeach a sitting President.

Notice that this cable is sent the same day, Friday May 26, that the filing by prosecutor Luis Rubí of criminal charges against Zelaya before the Supreme Court is dated as accepted by the court (Zelaya government members say this document was actually produced later and back-dated).

This is what later serves as the purported legal grounding for removing Zelaya from office, and replacing him with Roberto Micheletti.

The timing seems, at the very least, interesting.

Justice Rivera's analysis of how one can legally remove a sitting Honduran President matched our own arguments in the wake of the military kidnapping of Zelaya on Sunday, June 28.

In paragraph 4 of the cable, Llorens makes it clear when his conversation with Justice Rivera Aviles took place:

In a meeting on June 25, Honduran Supreme Court President Jorge Rivera Aviles told the Ambassador that he was extremely worried about the planned Congressional action against the President. Rivera said that congressional leaders had approached him about their plans to remove the President. Rivera said he advised against such action, which he described as illegal. Rivera said that in 2005 the Congress repealed the impeachment law. Currently the only means to remove a President was through the filing of a criminal case by the Public Ministry (Attorney General) with the Supreme Court. In such circumstances, the Supreme Court would appoint a Supreme Court Magistrate to hear the case. A ruling by the Magistrate against the President represented the only means to legally separate him/her from the office.

Thus the Supreme Court's opinion confirms that when the Honduran Congress pretended to remove President José Manuel Zelaya Rosales on June 29, 2009, it was a patently illegal act for which it had no constitutional powers.

The "legal succession" was illegal. This will come as no surprise to any of our regular readers.

The cable portrays Roberto Micheletti, head of the congress, as actively pursuing the position of president through organizing votes and working for Zelaya's removal, rather than passively receiving the presidency by "legal" succession.

The cable portrays Ambassador Llorens in somewhat ambiguous relation to the unfolding pressures for a coup. In his dealings with the congress, he urges no "premature" action. That is somewhat less than arguing that they refrain from trying to remove the sitting president at all.

In his conversations with the head of the supreme court, he seems to be seeking to define a legal procedure for removing the president-- again, not precisely discouraging the effort to do so. And while we would not say he produced the rationale, what he reports on June 25 becomes the basis for those who claim the coup was legitimate: a case brought by the public prosecutor before the supreme court.

(We assume that the Ambassador understood that such a case would have had to be tried, not merely brought; on the Honduran side, for a complex series of reasons, simply bringing the charges seemed to be enough reason to consider the president impeached.)

Ambassador Llorens comes across as a confidante of those who become the authors of the coup d'etat.

An earlier cable from June 18, 2009 documents a breakfast meeting between Llorens and Generals Romeo Vasquez Velasquez and Miguel Garcia Padgett in which he told the Generals that "the heavens would fall" if the military made any unconstitutional move.

Of course, it didn't happen that way. The US was reluctant to cut off military aid after the coup, only taking that step months later.

Diplomacy is of course a difficult dance. Llorens does report talking to President Zelaya in his June 25 cable. But the tenor of his reported remarks there is much less pointed: he says he urged Zelaya to "to do everything he could to lower the tensions and send conciliatory public messages and engage in dialogue with the opposition". He reports urging Zelaya to remember that he is president of "all Hondurans".

Comparing the two sides of his diplomacy, it is clear that Ambassador Llorens wanted actions of a specific kind from President Zelaya; whereas he himself makes no reports of urging the Congress to engage in dialogue.

Is it any wonder why many Honduran intellectuals believe that the US was complicit in formulating the coup?

While former Minister of Culture Rodolfo Pastor Fasquelle, in a recent interview, absolved the ambassador of direct responsibility, he concluded that the US

was, of course, directly involved. Of course, who—I’m not able to signal and say that Ambassador Llorens was directly involved in promoting the coup. Some people believe that. I know for a fact that CIA operatives and military personnel of the United States were in direct contact with the conspirators of the coup d’état and aided the conspirators of the coup d’état. The coup was not something improvised. It was something that was laboriously and in a very punctilious manner prepared in time, so that from January onwards, you have this media campaign. All national newspapers, all major television chains and stations are involved, in this long period, in a propaganda campaign against the government, Zelaya’s government.

This legacy of distrust is not going to disappear because Honduras was readmitted to the OAS. It has not been healed by the agreement that allowed Zelaya to return to the country without facing immediate imprisonment.

It will remain a lasting legacy of US diplomacy that, while attempting not to take sides in a Honduran dispute, managed to give the authors of the coup the impression that if they just did things with an appearance of legality, everything would be fine.

When the US actually reacted, initially denouncing the coup, and much later, imposing modest sanctions, the outrage expressed by the de facto regime and the Honduran Congress told one side of the story: these authors of the coup were not expecting to be punished.

Now we have a glimpse at the other side: the communications that gave these actors the impression that removing the sitting president would not be problematic, as long as it was done using the correct legal procedure, and as long as it did not lead to the imposition of a military junta-- even for the short six months of Zelaya's remaining term of office.