Military Policing

The Honduran constitution spells out the role of the military: what they can and cannot do.

Juan Orlando Hernandez, head of the Honduran Congress with presidential aspirations, wants to change that. He assigned a committee of legislators (Mario Pérez, Oswaldo Ramos Soto, German Leitzelar, José Alfredo Saavedra, Augusto Cruz Asensio y Marvin Ponce) to formulate an "interpretation" of the constitution that will use Article 274 of the constitution to grant policing power to the military.

There's a real problem with this.

Its unconstitutional.

When Congress wrote a constitutional modification that granted it the sole power to interpret the constitution, which is what is proposed here, the Honduran Supreme Court ruled that change unconstitutional. The decision said that the Supreme Court itself is the final authority on the interpretation of the constitution. In retaliation, for years Congress has delayed publication of that decision, but it nonetheless is law. Three Justices of the Supreme Court chose to speak out and remind Congress of the law on Tuesday.

Articles 272 and 274 of the Honduran constitution define the role of the military. Article 272 reads:

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. These include education, agriculture, environmental protection, road building, health, and agricultural reform. Under this article, the military may cooperate with the institutions of public security (aka, the police).

All of these additional missions require a request from the appropriate Minister of state for the military to assume the role. In the case of cooperating with the police, they must be asked to do so by the Security Minister. They cannot act as police, only in conjunction with police.

In the United States we have a strong tradition, indeed a legal mandate, that says the military may not be used for civilian law enforcement except where expressly authorized by the Constitution or an act of Congress. In the debate over the ratification of the US Constitution, the Federalists argued that the military should not be used against the civilian population, ever. The legal foundations are embodied in the Posse Comitatus Act of 1878.

In 1985, in Bissonette v. Haig, the US 8th Circuit Court wrote:

Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights.

Honduras has no such tradition. Civilian rule of the military is an aspiration in Honduras, one that was emergent over the two decades before the 2009 coup. Certainly the changes introduced with the 1982 constitution were an attempt to subject a strong military to a weak civilian rule, but the 2009 coup has brought this power struggle back to the limelight.

A change like the law proposed by the Honduran Congress would be step backwards, reinforcing the erosion of civilian control over the military that was set in motion by the Honduran coup. It is one among many continuing impacts of a coup that has not really ended.