"General Considerations about Amnesty": Efraín Moncada Silva

In an editorial published in Honduras' La Tribuna, Efraín Moncada Silva, Honduran law authority and former member of the Zelaya administration, takes the opportunity to add to a series of commentaries he has pursued since amnesty was first proposed as part of the San Jose Accord. While, as he mentions, until it is published in La Gaceta, we do not have a text to comment on directly, Moncada Silva notes there are broader general principles we can discuss.

Moncada Silva starts with two key points: the nature of amnesty, intended to ensure public peace, has to be broad and general. Then he proceeds to draw out the fact that when a national law conflicts with an international treaty or convention, according to Article 18 of the Honduran Constitution, the international treaty or convention must be upheld.

Why is this important?

Because, as Moncada Silva notes

from this it follows that when the opportunity presents itself the concrete case [of amnesty] will have to be examined in the light of the Law of Amnesty that has been approved and the American Convention on Human Rights (Convención Americana sobre Derechos Humanos) or Pact of San Jose of Costa Rica and the Statue of the International Court, since even when the adequacy of the latter is complementary, it treats of a subsidiary critique, since the Court could assume a case if it considers that there is not the dispostion or capacity to act on a state level, or that the justice realized has obeyed the intent to remove the accused from their penal responsibility, has not been instructed in an independent or impartial form, or this has been in a manner incompatible with the intention to submit the person to the action of justice.

Translation: just because the Honduran Congress has passed an amnesty doesn't mean a case cannot be brought in the international court. Especially if the Honduran justice system shows partiality or an intention to absolve people of their responsibilities.

Moncada goes on to argue that technically, any amnesty needs to include both political and connected common crimes. After enumerating the crimes that are considered "political" in Honduran law (treason, compromising the external peace and security or dignity of the Nation, crimes against the form of government, terrorism, rebellion, and sedition), Moncada makes another sharp argument:

Definitely, the amnesty cannot include the crime of ordering, executing, or consenting to the expatriation of a Honduran because that is not a political crime

Why? because it is defined in Article 333, number 5, of the Penal Code, included in Chapter IV, Title XII, Second Book, which includes "crimes committed by functionaries against the exercise of the rights guaranteed by the Constitution".

And these, Moncada Silva says, are not political crimes. So much for absolving the Armed Forces of their guilt for abducting former President Zelaya.

Nor, Moncada says, is abuse of authority a political crime, since it is included under the heading "crimes against public administration".

Who is the target of this one? Roberto Micheletti himself, among others.

So. We all await with great anticipation the publication of the actual Law of Amnesty, to see how it was written, and what we can infer from that about who it hopes to preserve from prosecution. But meanwhile, Moncada Silva gives us reason to pause in the judgment of what this hasty amnesty law might actually imply in practice.