Tuesday, June 14, 2011

"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.


boz said...

Nice work on this.

One question I have: As certain sectors have pushed for a constituent assembly to rewrite the constitution, is there anything written about proposed changes to the constitution related to the Armed Forces? Or have they not gotten that far?

RAJ said...

Answering the second question first, reporting on assemblies by the Frente does indicate that the Frente has developed a number of proposals for refounding Honduras. These have not, so far as I know, been broadly disseminated.

Recently, there has been a proposal by Rodolfo Pastor Fasquelle to eliminate the Armed Forces in the process. Unfortunately, I cannot find a link to this text.