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.

"The ancestral force of Lempira": COPINH responds

A pattern is emerging in responses from the more revolutionary forces within the FNRP: greet Mel, while making it clear his importance is due to his symbolic place as a most visible, but not unique, victim of the coup and institutionalized power; don't mention the Cartagena Accord by name; do denounce the government of Porfirio Lobo Sosa and repudiate any claim that "reconciliation" has happened.

Again courtesy of Adrienne Pine at quotha, we have a translation of one of the responses that we have been anticipating most anxiously: that of the Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (COPINH).

The original statement in Spanish was issued May 27, in La Esperanza, Intibuca, the heart of the territory of the contemporary Lenca, and the core of the area where in the early sixteenth century Lempira led resistance to Spanish colonization.

COPINH, like the Artists in Resistance, addresses its statement to Mel, calling for "a warm welcome to you, who symbolize the struggle of the Honduran people to create a participatory and human democracy".

That is immediately followed by a call to

deepen all our efforts at denouncing the criminal dictatorship led by Porfirio Lobo Sosa, peon of the oligarchy and of North American imperialism.

COPINH then turns to address the OAS directly:

if you think you will wipe the board clean and start over, you are mistaken; you are mistaken in your cold economic calculations, in your political pragmatism, in your urgent desire to serve imperialism in its project of rearranging the continent; you are mistaken in your hypocrisy of recognizing a murderous regime that is the inheritor of a coup d'état and that has not complied with the conditions for return imposed by the OAS itself, for which it was expelled in the first place.

Indeed, the hypocrisy about human rights issues is glaring; to simply accept yet another assurance from Lobo Sosa, who has, after all, consistently assured the OAS and other international bodies that he is respecting human rights (while his Minister of Security tightens the noose, and journalists and activists continue to die in incidents that go uninvestigated), might be a pretty good definition of heartless pragmatism.

COPINH raises another troubling issue that is side-stepped by taking the Cartagena Accord as sufficient ground to reintegrate Honduras in the OAS: the authors of the coup have not been sanctioned.

The amnesty law passed by a complicit Honduran congress continues to block resolution of the political crisis because it represents impunity, as the COPINH statement recognizes, affirming the group's

conviction to fight, alongside the nation, against impunity, and to do everything possible to ensure that there will be punishment for the authors and actors of the criminal coup.

COPINH particularly underlines the project for which it has been a leading advocate within the Frente, "refounding" Honduras, vowing to continue efforts toward

the creation of a new society, refounded from below, capable of achieving decolonization, emancipation, and a dignified life

In that same passage, COPINH reaffirms its commitment to struggles that began before the coup, and that are motivated as much by inequities in the fundamental governmental and economic system of the country as at those introduced or exacerbated by the disruption in constitutionality brought on by the coup, committing to

continuing with the historic struggle that we have been undertaking in our communities defending our natural resources, our sovereignty, our self-determination.

It is worth reminding readers that one of the reasons that COPINH is committed to a new constitution is that the current constitution lacks protections for indigenous sovereignty, and treats natural resources as national resources, denying these same communities mechanisms to defend themselves against the damages caused, for example, by mining projects. Tinkering at the edges of the current constitution cannot bring the protections these advocates want and need to protect their continuity as communities.

Lest anyone labor under the illusion that a process of "truth and reconciliation" has been begun, let alone been completed, COPINH ends with an exhortation calling on "the ancestral force of Lempira, Mota and Etempica", sixteenth century indigenous leaders:

We will not forget, We will not forgive, and WE WILL NOT reconcile!!

So the tally continues to run against the Cartagena Accord...

Reactions to the Cartagena Accord, Part 3: Artists in Resistance

The Frente Nacional de Resistencia Popular is not homogeneous. It does not speak with one voice, as we previously noted.

We have special affection for Artists in Resistance who made the phrase "culture and politics" in our title something other than a contradiction in terms. Performing artists, writers, poets, have been at the forefront of the resistance from its inception.

They have now issued a characteristically poetic response to the Cartagena Accord, in the form of a statement addresses at Mel Zelaya, never mentioning the words "Cartagena Accord", and explicitly denouncing the administration of the co-signatory of that document, Porfirio Lobo Sosa, for continued aggression against the people of Honduras at sites such as the Bajo Aguan.

It is worth visiting the original to get a sense of the poetics, even if you don't read Spanish. Luckily for the non-Spanish reader, Adrienne Pine has provided a translation at quotha. While she leaves the statement to speak for itself, I cannot resist pulling out some threads and noting where they lead.

The first thread is given by the addressee: this is a communication to Mel. But it places on record the fact that Mel's return is not just a personal success, and further, underscores that it does not make him the body of resistance even though he came to embody "the dignity of Honduras":

Your return to Honduras is only the first step for which we took to the streets....

We will go to welcome you as you deserve, compañero Manuel Zelaya, with the pride of knowing that we did everything within our reach to defend to dignity of Honduras that you embody...

The tone is restrained. While congratulating Mel on being able to return to Honduras, and promising to be part of the crowd greeting him, Artists in Resistance refrain from being part of a carnivalesque celebration:

We will be there, compañero Manuel Zelaya, but we will not provide the spectacle. Our song and our voice is political and not simply backup for a cathartic euphoria over a success that we have yet to achieve.

"Cathartic euphoria over a success that we have yet to achieve": nothing could be clearer. The Cartagena Accord has not, and will not solve the entire political situation; it does not even undertake to address many glaring issues.

The Artists in Resistance, like the Political Committee of the Frente, do not believe that Lobo Sosa can be trusted to safeguard human rights, as he promised in the accord:

we will not forget that the Lobo regime is murderous, that it continues murdering the campesinos of Aguán and Zacate Grande; that this very week it has ordered police to stomp on the necks of the students of Luis Bográn, that it ignores the martyrs and desperate hunger strike of the teachers, that it permits the targeted assassinations of artists like Renán Fajardo and Juan Ángel Sorto, that it carelessly ignores the deaths of poets of universal standing like Roberto Sosa and Amanda Castro, that it continues ordering protection for the murderous businessmen of the coup d'état and that it attacks and persecutes its people and has sold off our territory piece by piece, with the help of a police force and army converted by the empire into occupation forces within our country.

While much of this part of the statement could be generalized to others in resistance, the outrage by the Artists in Resistance about the failure of the Lobo Sosa government to recognize "the deaths of poets of universal standing" speaks volumes about the cultural divide opened up by the coup.

On one side stand those for whom culture, in the famous phrase of Myrna Castro, also includes fashion, but not the distribution of what she considered subversive books; and on the other, those who were, under the Zelaya government, seeing public recognition of poets and authors reflected in many aspects of policy, advances now lost.

(The Honduran literary blog mimalapalabra has an appreciation of Roberto Sosa for Spanish readers. Feministas en Resistencia produced a statement on the death of Amanda Castro, reproduced on voselsoberano.)

Nothing in the Cartagena Accord deals with the retrogression in Honduran cultural affairs that came about in the coup and has continued under Lobo Sosa.

Artists in Resistance reserve harsh language-- I would have said, the harshest, had their statements about Lobo Sosa not been so severe-- for others in the Frente de Resistencia:

we did everything within our reach to defend to dignity of Honduras that you embody, an extraordinary effort that has brought us, in the course of two years of painful struggle, to organize our understanding and watch it grow within the legitimate structures of the FNRP. Nonetheless, all of our enormous effort, from every corner of Honduras and from all of our people's artistic expressions, does not seem to be sufficient to ensure that the FNRP at all levels of its hierarchy also advances in terms of decisive dialectic understanding and of accepting internal criticism and its own diversity...

[speaking of their refusal to perform as part of a premature celebration]: This is a fundamental stance for us that has not been understood by those who have been incubating orthodox hegemonies from within the FNRP leadership.

Can the Frente survive the Cartagena Accord? In part, it seems to us, that will depend on whether those who thought they spoke for the entire heterogeneous group get back to work engaging internally.

The Artists in Resistance close with a call to recognize that they, and the rest of the heterogeneous resistance, can be the leaders in the continuing political struggle:

The enormous weight that now lies on your shoulders—and that we are willing to bear—can be summarized in the fact that, with each of your actions, the voice of our martyrs and exiles will remind you of the sacrifice that so many have made to give life to the National Front of Popular Resistance.

This is not quite the conventional view that sees the Cartagena Accord as bringing an end to the need for resistance, viewing Zelaya as the leader of the Frente. The resistance remembered by the Artists is something bigger:

we have been witnesses to the growth of thousands of voices and faces of leadership, leaders of neighborhoods, municipalities, towns, collectives and organizations—an immense demonstration of the strength and will accumulated over decades in the bowels of a humiliated Honduras.

Couched in poetry, what this statement does is make clear that José Manuel Zelaya Rosales matters as a symbol of what has been done to Honduran society generally; and perhaps even a warning to him not to mistake that for a mandate for leadership.

The Cartagena Accord

The Cartagena Accord has been published. Here is a translation of the actual points of the agreement with some initial comments:

1. The framing of all actions and decisions of the government of Honduras in strict compliance with the constitution and the law.

This is a recognition by both sides that Honduras is governed by the rule of law, and that the conflict must be settled using that law. As we've seen, the interpretation of that law can be pretty malleable in the Honduran courts....

2. Ensure that former president José Manuel Zelaya Rosales can return to Honduras, with full recognition of his rights under the constitution and laws of Honduras, including the exercise of political action, in terms of security and freedom.

3. Deepening the guarantees for the return, safety, and freedom, of the former officials of the government of former president José Manuel Zelaya Rosales, and others affected by the crisis who are not abroad, with full recognition of their rights under the constitution and laws of Honduras.

This is actually a broadening beyond the initial demand, which was just for guarantees for Zelaya himself. Many former government officials, and members of the FNRP, are still living in exile.

4. To welcome the decision of the competent authorities to anull the legal proceedings against former president José Manuel Zelaya Rosales, highlighting the presentation of documents by the Public Prosecutor's office and the Attorney General's office before the ad-hoc Court of Appeals according to which both institutions waive the right to appeal, and its admission by the Court, which makes the Court's decision final.

Put another way, we celebrate the "happy coincidence" that the law allowed the charges against Zelaya to be annulled. But as has been noted many times before, while the Court's decision to annul was final, both the Public Prosecutor and the Attorney General's office retained the right to refile charges at any time once they correct the procedural errors. In the absence of an admission that the charges themselves were without merit, the international position that the charges amounted to political persecution is not upheld by the Cartagena Accord.

5. To watch in a special way to ensure compliance with the constitution of the Republic with regard to guarantees of respect and the protection of human rights.

We're not quite sure what they mean here. Is the Compliance Commission going to have oversight of this ("the special way") or is it the Honduran Minister of Justice and Human Rights, Ana Pineda, who so far has assured there is lip service to Human Rights, but no actual compliance?

6. To ensure compliance with all guarantees that the law gives the National Front for Popular Resistance applying for registration [as a political party] before the Supreme Electoral Tribunal to participate democratically in the electoral political process in Honduras and to enable government agencies to integrate it as an electoral political equal. In this context and with the full respect of procedures and legal powers, to instruct the Compliance Commission to verify compliance with the procedures for registration of the People's National Front in an atmosphere of cooperation and transparency.

In some ways this is the most interesting of the agreements. It highlights the tension within the FNRP over whether to become a political party or not. Negotiations were carried out by Juan Barahona, a former campesino leader, on behalf of the FNRP, and he has clearly been in favor of the Frente becoming a political party, but other significant factions in the Frente, such as COPINH, have not. It will be interesting to see their public statements in reaction to the agreement. Can the Frente survive being fractioned into both a political party, and a wider social movement as this split would imply?

7. Reiterate that the amendment to Article 5 of the Honduran constitution regulates the call for a referendum with clearly established procedures, allowing the possibility for the people to be consulted. This reform enables all sectors to launch legal procedures to conduct a plebiscite and thus subject directly to the will of the people the political, economic and social through the new constitutional plebiscite and referendum. Therefore, the request that the former president Zelaya made to convene a National Constituent Assembly will be part of these consultation mechanisms. In this regard, the government of Honduras is committed to the taking measures that are within their legal powers to ensure the electoral rights of citizens, and to instruct the Compliance Commission to verify compliance with the procedures established for the conduct of referendums in the Republic of Honduras, when this process is initiated by any sector, with total respect for the legal powers of the branches of government, which complement the paperwork associated with these processes.

While Zelaya initially called for, as part of the accord, a National Constituent Assembly, this clause represents Lobo Sosa's response. Lobo Sosa and the Honduran National Congress have been busy making sure that everything Zelaya tried to do, and allegedly was overthrown for doing, is sanctioned under current Honduran law. To that end, Congress rewrote large sections of the Constitution over the last 2 years, making it possible for citizens to collect signatures to convene an election to modify the constitution of Honduras.

The fact that the Frente collected over a million signatures (1.3 million) calling for a National Constituent Assembly certainly contributed to making this a legislative priority of the current government.

8. Recognize the creation of the Ministry of Justice and Human Rights as the entity that will strengthen national capacities for the promotion and protection of Human Rights in Honduras, following up on recommendations made to Honduras as a result of having submitted the Universal Periodic Review of Human Rights to the Human Rights Council of the United Nations in Geneva, and coordinate and harmonize the cooperation and support of the United Nations and other international organizations to strengthen public policies and national capacities to ensure full respect for human rights in Honduras. In the same vein, the Honduran presidency has asked the Office of the High Commissioner for Human Rights of the UN to install an office in Honduras.

The new Ministry of Justice and Human Rights seems to be well intentioned, but ineffectual. It makes pronouncements, but not policy. As an example, the Minister, Ana Pineda, denounced the new wiretapping bill being considered by Congress as going too far and violating Hondurans rights to privacy. This did not trigger a reconsideration of the bill, which is expected to pass unchanged this week. Congress basically ignored her.

9. The Compliance Commission will consist initially of the foreign ministers of Colombia and Venezuela, who will assume office after the signing of this agreement by the President of the Republic of Honduras, Porfirio Lobo Sosa and former President, José Manuel Zelaya Rosales, and as witnessed by the Presidents of Colombia and the Bolivarian Republic of Venezuela, Juan Manuel Santos and Hugo Rafael Chavez Frias.

The Compliance Commission is a purely ornamental body, having no actual power to enforce the Accord. They can only shame non-compliant parties through public exposure. The body of the agreement in another section states that the parties may add other countries to the Compliance Commission by mutual agreement.

All of this was accomplished without the United States, whose State Department has remained silent about the mediation efforts being carried out by Presidents Santos and Chavez.

Indeed, the US State Department has been decidedly unhelpful in pursuing mediation, having called several times in the last month, as the mediation was being carried out, for the OAS to immediately return Honduras to full membership. In the end, Arturo Valenzuela, who is stepping down as Assistant Secretary for Western Hemisphere Affairs said this was a very positive step because it showed they were overcoming their deep divisions and it recognizes the legitimacy of the Lobo Sosa government.

This accord brings certainty to Honduras' return full OAS membership.

What it will mean for reconciliation within Honduras remains to be seen. Does Porfirio Lobo Sosa have the political influence in his own party, let alone in the Liberal Party, to encourage support and follow through? Will the Frente, or a significant enough portion of it, take up the offer to become a political party, and what will happen to those elements of the Frente that do not wish to do so? Will anti-Zelaya forces be able to resist the urge to bring the same (or variant) charges again, once Zelaya is back in the country?

Gamechanger?

This morning Jose Manuel Zelaya and Porfirio Lobo Sosa signed the Cartagena Accord.

Our first reading: human rights issues still may receive more lip service than real response; the agreement to conduct a plebiscite on the constituyente vindicates the Zelaya government and probably recognizes the Frente's signature drive; the agreement to register the Frente as a political movement raises questions about internal Frente goals and means.

More later: literally on a runway.

Truth Delayed?

The official government truth commission, headed by Eduardo Stein of Guatemala, announced yesterday that the commission's report would be delayed until the middle of June.

As recently as 11 February, Stein announced the report would be ready by mid-march.

On April 13, Stein told us report was to be delivered at the end of May, in time for review prior to the OAS General Assembly in June. At that time, he said it was specifically to be previewed to the OAS before it would be made public, in order to help them with their deliberations, so the change of timing now is odd.

Odder still is the announced reason for delaying again: to not influence the OAS member countries in their vote to return Honduras to full membership. In a complete reversal, Stein now says:

"We want to avoid it serving as an excuse or argument for anyone to contaminate the discussion over the return of Honduras."

But it seems that was precisely the point a few weeks ago, to influence the OAS discussion. So what's changed?

Stein himself has admitted the report is done, the list of recommendations finished.

He has a few questions he would like to ask Manuel Zelaya Rosales, who has refused to deal with the commission, but believes he has sufficient knowledge of events from other sources.

Stein told reporters:

"We would have liked to historically document his version of some of the topics, because it it impossible for us to speculate what the intentions of ex-president Zelaya were on taking up certain positions and making certain decision, things that only he can clarify.... For us the work is finished, save some questions that we would have liked to ask him [Zelaya], but it was his decision...."

One wonders why influencing the OAS was fine in April, but has become anathema in May.

And in either case, we wonder if it is appropriate for a so-called "Truth Commission" to be scheduling the release of its findings to advance a political goal of the people whose actions are supposed to be under scrutiny.

Of course, if you begin your hunt for "truth" having prejudged that the current political administration bears no responsibility for the actions that many of its members took to implement a coup and the repression that followed, maybe that kind of politicization doesn't seem at odds with truth at all.

But we continue to think that a truth commission that starts with conclusions, and that times its reports for political ends, has very little credibility.

Legal Opinions

Legal opinions.

How do you assess them? Is it really good news that Honduran courts have nullified the final charges against Manuel Zelaya? If so, why is he not flying right back to the country now?

Certainly, the US State Department is overjoyed, and through the Voice of America, is promoting the idea-- yet again-- that the coup is now completely behind Honduras. On with business!

Honduran lawyer Carlos Augusto Hernández Alvarado is not convinced.

The law professor at UNAH, previously a Professor of Constitutional Law at the Universidad de San Pedro Sula, provided an illuminating commentary about the nullification of charges against José Manuel Zelaya Rosales, which he describes as a "blackmail ploy".

His argument is that the opinion rendered is "a trap", because the nullification was based on errors in process, rather than a repudiation of the charges themselves.

This is certainly the case. As he writes,

The sentence itself centers on sustaining that due process rights of the ex-President, contained in article 90 of the Constitution of the Republic and others such as the right of defense recorded in article 82 and including the presumption of innocence of article 89, were violated, by having been expatriated, expressly prohibited by article 102 of the Constitution.

Hernández Alvarado notes that one justice, Marcos Vinicio Zuniga Medrano, presented a separate legal analysis, arriving at the same conclusion, and using the same bases for nullification. What distinguished this opinion was a "deeper" discussion of the remaining crimes Zelaya was accused of, falsification of public documents and fraud in public administration.

Hernández Alvarado suggests that Honduran citizens need to ask a series of questions about this decision. We think these are pretty good questions for others interested in Honduras to consider as well.

1.- Who petitioned for the nullification of the charges?

Hernández Alvarado's answer: public defenders José Anaim Orellana and Edgard Crosby Lanza. As we have noted before, this appointed violates the right of a defendant to chose their own representation.

2.- On whom does the public defender who solicited the nullification depend?

Hernández Alvarado, noting that the answer is that the public defender is part of the judicial branch, characterizes this as a "grave moral and ethical contradiction", since the judicial branch "is what sustained the illegal charges against the Ex President and now, as if by magic arts, names defenders on the petition of the Procuraduría General de la Republica, converting the Judge into a party to the case".

3.- How [on what grounds] did the public defenders solicit the nullification of the charges?

Quoting Hernández Alvarado:

We have here the first trap of all the spectacle that we have lived through, the public defenders that are at the same time Judge and party for the institution on which they depend, solicited the nullification solely of the process, and not of the substance of the matter placed before them. In other words, they did not attack nullification of the illicit evidence that supported [the charges] and was obtained in an illegal manner.

4.- Why did they not do this before, if they were aware of what had occurred?

5.- Why did the public defenders named and the decree of nullification of the case not enter into an in-depth analysis of the evidence, so that the charges would be completely annulled?

6.- Why did the defense and the nullification of the charges decreed by the Court not ask if the evidence they succeeded in getting was obtained by infringing on due process?

Hernández Alvarado finds the last question explicable only "because they move to the political pulse of whoever controls the institutional apparatus of state".

He notes that "if they had analyzed the illegality of the evidence that would have carried the nullification to the level of the charges themselves, not leaving the door open to reformulate the charges".

This is the most interesting point in his statement: Hernández Alvarado believes that the decision was made in such a way as to deliberately retain the potential to place the same charges again. This is what he characterizes alternately as "the trap" or "the blackmail ploy".

He points to articles 94 and 200 of the Código Procesal Penal as calling for assessment of the legal or illegal nature of evidence provided:

Articulo 94: Illegality of evidence. When the Fiscales have in their power evidence and they know that it was obtained by illicit methods, especially torture, deals, or cruel, inhuman, or degrading punishments or other abuses of human rights, they should abstain from using them; they should proceed against whoever had employed these methods to obtain them if they consider that they have incurred penal responsibility, and adopt all the measures necessary to assure that those responsible appear before justice.

Artículo 200: Prohibited or illicit evidence. They shall lack evidentiary efficacy those actions or deeds that violate the procedural guarantees established in the Constitution of the Republic and in the international treaties related to human rights of which Honduras forms part; as well as however many might have been a necessary consequence of such acts or events and that would not have been possible to obtain without the information derived from them, without prejudice to the responsibility that whoever obtained the illicit information would have incurred.

Hernández Alvarado goes into more depth on the way that the legal opinion fails to confront the violation of aspects of the legal code governing admitting illegally obtained evidence, and the need to pursue those who committed the illegality.

He also notes that article 93 of the same legal code calls for the prosecutor to exercise objectivity. This is defined in ways clearly not descriptive of the actions of the authorities who have been determined to press charges in this case, such as Luis Alberto Rubí:

“Objectivity. In the exercise of his functions the Ministerio Público should act with absolute objectivity and protect the correct application of the criminal laws. He should investigate not only the circumstances that will permit proving the accusation, but also those that would be the cause of exemption or of attenuation of responsibility of the accused; at the same time, he should formulate his summonses in conformity with this criterion, even in favor of the accused."

7.- What is the result, when since the beginning of the process of investigation, the Tribunal A QUO and A QUEO, did not guarantee due process, nor did it execute an Effective Judicial Guardianship for the accused Manuel Zelaya Rosales?

Again, quoting Hernández Alvarado:

Not only did it entail a procedural nullification instead of one on the basis of the way that the evidence was obtained and the violation of international treaties subscribed to by our country and the basic principles contained in articles 16 and 18 of the Constitution, that should have primacy in their application.

Let's point out the norms that were infringed:

• 1, 2, 7, 8, 9, 10,11 of the Universal Declaration of Human Rights of December of 1948;

• 7.3, 8.1, 9, 24, 25 of the Convention of the Americas on Human Rights, signed the 22 of November of 1969, approved the 26 of August of 1977 (Gaceta No: 22,287-289);

• articles 9, 14, 26 of the International Convention on Civil and Political Rights, signed the 16 of December of 1966 (Gaceta No. 28,293).

Now the question to evaluate would be:

Was the evidence in the cases of Ex President Manuel Zelaya Rosales illegally obtained?

Article 209 of the Código Procesal Penal gives us the answer in its second paragraph:

"The register of churches, public buildings, military installations or in general properties of the state can be carried out only by making known to the person in whose charge they are found, the said person should attend the proceeding or name another to represent him, if not, to permit the register would constitute the crime of disobedience."

Hernández Alvarado points out that the "diaspora" of Zelaya government officials after the coup means they were not there when searches were carried out, making any supposed evidence "automatically illegal". He goes on to say

The summons in consequence is not objective, the evidence is nullified, contaminated, and as a final result the case is nullified, not just on the process but also on the basis.

The specific vote of Abogado Magistrado Marco Vinicio Zuniga on the decision to nullify the charges against Mel Zelaya, the one that comes closest to this assessment, logically was not included in the decision because it would procure as a consequence admitting the illegality of the authorities that supplanted those that were constitutionally named and would leave the same Fiscales automatically subject to [charges of] irresponsibility such as those established by article 200 of the Código Procesal Penal.

As he notes, the judges and prosecutors in the present case were themselves involved in the break in constitutional order, and letting them make this decision gave them the opportunity to seek a way to shift the blame away from themselves: to seek a procedural ground that is innocuous instead of confronting the violations at the core of these charges, which would require them to be charged with violations of the law and of international treaties.

His concern is that taking this procedural route to satisfy the form of the demand (in time for the OAS to re-admit Honduras) leaves the way open for charges to be brought again by the Fiscal, whose violations of constitutional rights have not been reprimanded, should Zelaya decide to return to Honduras:

But in this country in regard to justice "cork floats, lead sinks"; we can see a motion without feet or head, end up returning the same original state of the charges against the Ex President...

Was this legal opinion a blackmail ploy?

Hernández Alvarado's answer:

The answer is known to those who control the state, and who in the immediate past carried out a Coup d'Etat.

If that answer is yes, then we have to ask: who is being blackmailed?

It's Over (With A Caveat)

The Public Prosecutor, Luis Rubí publicly announced today that he will not file an appeal to the full Supreme Court of the appeals panel's nullification of the charges filed against Manuel Zelaya Rosales.

"From today we have given the instructions to the lawyers that have the case to not file an appeal....The Public Prosecutor will not make use of an appeal; we will accept the verdict of the court of appeals and continue with what they are ordering us to do to make good on what the court of appeals decided (it is not based in law) and we will continue with the procedures established by law."

Rubí made it clear that he is not enjoined from refiling the same charges against Zelaya in the future. And that's the caveat; Luis Rubí will almost certainly refile charges in the future. And this is what Zelaya Rosales was referring to yesterday when he complained about the "continuing coercion and threats to his liberty." As he said, until there is a final resolution to the political persecution there is no way for him to return to Honduras.

This skirmish is over, but Luis Rubí is planning a full campaign of political persecution of Manual Zelaya Rosales. Nonetheless the OAS will accept this as a compromise solution and pretend that the state of Honduras has ended its political persecution of Manuel Zelaya Rosales.

Like a game of whack-a-mole, these politically motivated charges have been extinguished, but look for them to pop up again in the near future.

Motion To Reconsider Rejected

The appeals panel of the Honduran Supreme Court today rejected the Public Prosecutor's motion to reconsider its verdict in the charges against Manuel Zelaya Rosales.
"This was not the resolution we were looking for. We will exhaust all our legal possibilities because we've well documented the crimes of fraud and falsification of documents by Zelaya.....by means of an appeal we will indicate our rejection of the resolution of the appeals panel of the Supreme Court,"
said Albina Zepeda, the appeals prosecutor.

Starting tomorrow, the Public Prosecutor has 60 days to file an appeal, which will then be heard by the entire Supreme Court.

Reset your countdown clocks again because its not over. 61 days from today and counting.

Its Not Over Till Its Over

Yesterday the appeals panel of the Honduran Supreme Court voted 2-1 to nullify the remaining charges against José Manuel Zelaya Rosales for procedural irregularities. The panel of three magistrates, Rosa de Lourdes Paz Haslam, Marco Vinicio Zúniga Medrano, Gustavo Enrique Bustillo Palma made their verdict public shortly after noon yesterday in Tegucigalpa.

La Tribuna reported that the vote was 2 for nullification of the charges with one abstention. El Heraldo reported that Rosa Lourdes Paz Haslam and Gustavo Enrique Bustillo Palma voted to nullify the charges and that Justice Marco Vinicio Zúniga Medrano voted against the appeal.

The court based its decision on articles 16, 61, 82, 90, 102, 303 and 304 of the Constitution, article 10 of the Universal Declaration of Human Rights, article 8 of the American Convention on Human Rights, and articles 4, 101, 165 y 166 (numbers 3, 5, 6 y 7, 139), 167 (number 1), of the Penal Code and articles 1 and 137 of the Law of the Organization and Attributes of the Court.

The decision

"reformed the order dated 25 March 2011 [of judge Chinchilla] in relation to nullification, and because of the particular and unique status of the involuntary absence of Mr. Zelaya Rosales, declares the partial nullification of the proceedings exclusive to José Manuel Zelaya Rosales accused, from and including the present admission requirements and tax issues 0801-2009-31126 0801-2009-31042 dated July 30, 2009 and February 24, 2010, respectively, promoted against Mr. José Manuel Zelaya Rosales, on charges of falsification of public documents to the detriment of the public trust, and fraud against the government and all acts that have been made to posterity, with the exception of the measures mitigating the appointment of a public defense of the accused, the decision to bring this case to the special procedure for processing a high government official, the motion to bring nullify these actions, the processing of the appeal and the proceedings brought against the co-defendants in related charges."

All of that to affirm the hearing procedures and overturn the decision of appeals judge Chinchilla and grant the defense motion to nullify the two remaining charges against Zelaya Rosales. The court made it clear that the nullification only applied to the charges against Zelaya Rosales, not his co-defendant, Enrique Flores Lanza.

The Public Prosecutor, Luis Rubí, has 60 days to appeal the decision of the three judge panel. He can appeal because the decision was not unanimous. If he appeals, the case is taken to the entire 15 justices of the Supreme Court, who will then analyze and vote on the case.

So all of this will probably be sufficient to get Honduras re-admitted to the OAS, but as yet is insufficient for Manuel Zelaya Rosales to return to Honduras. Its a legal ruse to give Lobo Sosa daylight to negotiate Honduras's return to the OAS while still keeping the charges open. Already Miguel Insulza, Secretary General of the OAS, says this is sufficient to negotiate Honduras's return.

Until the appeals period expires the case is not over.

We fully expect the Public Prosecutor's office will appeal this court's decision. Henry Salgado, the Anti-Corruption Prosecutor as much as said so this morning. The question is, will Luis Rubí stick it to Lobo Sosa and file the appeal before the OAS meetings in June, or will he wait until after the meeting to file his appeal?

Reset your countdown clocks for 60 days.

UPDATE: 11:11 AM PDT - La Tribuna is reporting that the Public Prosecutor's office will file an appeal in the next few hours. Luis Rubí, despite his lack of prosecutorial success in these politically motivated corruption cases, is sticking it to Lobo Sosa with respect to readmission to the OAS.

UPDATE 11:00 PM PDT - The appeal is filed.

Annulled?

El Heraldo is reporting a rumor that the Honduran Supreme Court has decided to anull the charges against Manuel Zelaya Rosales.

Honduras and the OAS: The Plot Thickens

The issue of what to do about Honduras will come up again at the next OAS General Assembly in early June. As readers will recall, Honduras has failed to fulfill the requirements set by members of the OAS opposed to readmission. Most discussed has been the failure to find a way to dismiss politically motivated charges against former president José Manuel Zelaya Rosales, which would allow him to return to the country. This has come even to overshadow the concerns expressed about continued human rights abuses in post-coup Honduras.

Porfirio Lobo Sosa asked again on April 15, for the Supreme Court of Honduras to do what is necessary to make it possible for Manuel Zelaya Rosales to return to Honduras.

Jorge Rivera Aviles, the Supreme Court Chief Justice, says that if it does, it will just be "a happy coincidence", not because of Lobo Sosa's pressure on the court.

This battle has been going on since Lobo Sosa took office in January 2010. Porfirio Lobo Sosa has done all he can to make it possible for Zelaya to return, but ultimately it is beyond his power. He cannot command the Supreme Court, and so far, they've declined to cooperate with him.

It took the negotiations of Arturo Corrales, once negotiator for Roberto Michelleti, and currently head of Lobo Sosa's Strategic Planning Commission, and the brainstorming of a legal team, to find a legal way the court can dismiss the remaining charges: nullification.

Here's what will happen next with the Zelaya legal case:

--on or about April 20, a three judge appeals panel of the Supreme Court will rule on an appeal by the Public Prosecutor's office to reinstate the arrest warrants for Zelaya that have previously been vacated.

--after that, there's another motion pending before Judge Chinchilla to dismiss the two remaining charges because of procedural errors by the Public Prosecutor, Luis Rubi.

(The procedural errors? Under Honduran law, Rubi had to formally notify Zelaya he was the subject of an investigation, and that notification had to occur before any charges were filed. Rubi filed charges in July 2009, just after the coup, without ever notifying Zelaya. This seems to be the core of the argument for nullification of the charges.)

--if the charges are dismissed, Rubi's office can be expected to appeal, prolonging the case for up to two more weeks.

In any event, if the Supreme Court does not drag its feet again by mid-May it should have heard all the possible appeals and ruled definitively and finally on the charges against Zelaya, either dismissing them or allowing them to go to trial.

There is a lot more now riding on what Rivera Aviles claims would only be a "happy coincidence" being the outcome.

After meeting in Colombia with Lobo Sosa, and with Zelaya and representatives of the Frente de Resistencia yesterday, Hugo Chavez has said that if Lobo Sosa can deliver on the long-demanded dismissal of charges against Zelaya, then he will support reintegration of Honduras in the OAS.

He has promised both Lobo Sosa and Zelaya he would work to bring about a resolution favorable to both sides. Juan Barahona, on behalf of the Frente de Resistencia, has said they put their trust in Chavez as a mediator as well.

There are still, of course, things that making it possible for Zelaya to return will not heal.

At the same OAS General Assembly, the government-sponsored Truth Commission (which isn't really a truth commission because its charter fails to conform to the UN standards for truth commissions), will brief OAS members on the contents of its final report.

Eduardo Stein said the report will be submitted without the help of Zelaya, who refused to give testimony to the commission, because they have a large body of press releases and statements by members of his cabinet to the press to confirm what happened, and that those statements are consistent with other reports made to the commission.

Contradicting himself, he noted that there were some topics where only Zelaya could provide information about his intentions and actions, and he regretted that Zelaya had refused to cooperate.

So, the Truth Commission, which has been touted as providing a means to reconcile Hondurans divided by the coup, is not likely to add much forward momentum. And the human rights situation in Honduras has not been improving. Both the US State Department and the Inter-American Human Rights Commission have recently condemned deteriorating human rights conditions in Honduras.

But it is probably a reasonable bet that Honduras will return to the OAS soon-- that is, if the Supreme Court delivers its "happy coincidence".

Chavez, Lobo, and readmitting Honduras to the OAS

News reports have appeared claiming that Honduras will be reintegrated to the OAS following a meeting between Hugo Chavez and Porfirio Lobo Sosa in Cartagena, Colombia.

AFP's story probably hews closest to the truth: talks were held, that is true. But nothing really has changed, so press coverage claiming a breakthrough would appear to be premature. As AFP correctly described the situation

Zelaya is currently in exile in the Dominican Republic, and will not return to Honduras until he is guaranteed immunity from legal action. His return is a condition for the OAS to re-admit Honduras.

What that means is that someone with the ability to do so would have to guarantee that the remaining charges against Zelaya were dismissed. Lobo Sosa, the head of the executive branch of government, cannot make such a guarantee, because the charges are being defended by the judicial branch.

While the most obvious political charges against Zelaya were recently dismissed, there remain charges on which the court still demands Zelaya be tried. Lobo Sosa has made overtures before, and has been briskly pushed back by Honduran factions who want the OAS to back down.

The head of the Honduran Supreme Court Jorge Rivera Aviles, recently reiterated that the judicial branch-- which is, we re-emphasize, not controlled by Lobo Sosa-- thinks it has done enough to satisfy the international community:

“From my point of view all the requirements for Honduras to be in the OAS have already been completed...Honduras should be reintegrated without greater conditions (since it has complied) with the aspects of national reconciliation and government respect for human rights, to give accounts to international organizations and many other activities since Lobo took office”.

Speaking specifically to the question of Zelaya still being under threat of trials that, given the extreme nature of his removal from office and the open hostility of the courts to him, we might assume will be somewhat less than fair, the head of the Supreme Court continued:

"He can come anytime, he doesn't have any warrant for arrest pending".

For pro-coup Honduras, this is reality, even if the rest of the world sees things otherwise.

A call for charges to be dropped against ex-President Zelaya is reinterpreted: see, we won't arrest him (at least right away) so why should he be afraid to come back?

So it seems wildly unlikely that Lobo Sosa will shift their position, especially not on the promise that Hugo Chavez-- reviled by the Honduran right-- would then change his position.

And notice that in fact, Chavez has not changed his position. Santos may have managed a surprise meeting with Lobo Sosa, but the "agreement" is that Lobo Sosa needs to deliver the immunity from prosecution which has always been the requirement for readmission to the OAS.

The positive spin on the most recent meeting comes from two sources: Porfirio Lobo Sosa and the president of Colombia, Juan Manuel Santos. Both are, quite obviously, interested parties who would like to get credit for changing the situation.

The Chinese publication People's Daily (in English) quotes Lobo Sosa as its main source, saying

"I am very glad the meeting has initiated the incorporation of Honduras into regional bodies like the OAS".

Santos, on the other hand, sounded more cautious even in this highly spun story:

"I hope this meeting will become a further step toward the final settlement of Honduras' problem with the OAS and that the OAS will accept Honduras' return as a full member of that organization."

A "further step" is a long way from "initiating incorporation" in OAS. Indeed, coverage in the English-language Colombia Reports is more measured:

The Honduran president said he agreed to allow ousted former leftist President Zelaya to return to the country with immunity from prosecution. This is a condition of the readmission of Honduras to the OAS.

The problem remains that the will to acknowledge that the coup of 2009 was a coup is absent in Honduras. So various parties cling to their claims of corruption-- not that these would, in fact, have justified a coup.

Lobo Sosa has pretty successfully distanced himself from the coup, but does so, among other things, by pushing to the forefront the Supreme Court-- still the same group that claimed it was entirely legal in documents widely believed by anti-coup activists to have been post-dated and essentially doctored. And the head of the Supreme Court has no intention of taking one step more to facilitate international recognition. In fact, he said earlier this week that

"the President, Porfirio Lobo, has made enormous efforts and has attended to many international requirements, in such a way that to the extent that he acceeds, they ask even more".

Time, Rivera Aviles thinks, to draw a firm line in the sand.

More egregious than his refusal to recognize the difference between immunity from prosecution and removing an arrest warrant, even if it is not what the press or the three presidents meeting in Cartagena talked about, is River Aviles' claim that the Lobo Sosa government has met international demands on human rights.

It just is not so. But then, in Rivera Aviles' circles-- and most likely in the view of Lobo Sosa as well-- it is just unfair of the rest of the world to insist on such conditions for Honduras, because the people being beaten in the streets, tear gassed, and hit with water cannons, asked for it by not accepting the iron fist of control exercised over their country.

Zelaya Case Continues

Radio Globo just reported that Supreme Court Judge Oscar Chinchilla has ordered that Manuel Zelaya Rosales stand trial for the charges of "fraud" and "abuse of authority", but has dismissed the arrest warrants. Zelaya is free to return to Honduras without fear of being arrested, but the case brought by the Public Prosecutor, Luis Rubi, continues.

No More Standards at All: So Much for Unalterable Constitutional Clauses

Honduran congress-members overthrow the myth of the "untouchable" articles of the Constitution.

Say what?

That's the headline on an AFP story by Freddy Cuevas, which notes that

There is a measure of irony in the changes approved Wednesday night...

Well, yeah...

The AP article includes an interesting characterization of the original motivation for including the language in the constitution that seems to block any revision of the constitution:

The permanent ban on re-election was imposed as the country emerged from a military dictatorship, and it was meant to break the vicious cycle of Honduran leaders perpetuating themselves in power for years...

This is a worth thinking about. The implication would be that Honduras had a history of elected presidents overstaying their welcome prior to the writing of the new constitution in 1982. The archetype for this in the 20th century would have to be Tiburcio Carías Andino, who maintained his position as head of state after being elected in 1932 until 1949.

But there is not, otherwise, any evidence that elected Honduran leaders in the 20th century took part in any "vicious cycle" of "perpetuating themselves in power for years". What actually dominated the post-Carías Andino period is a pattern of repeated military interventions removing elected leaders from office, and ruling as dictators or juntas.

Juan Manuel Gálvez was elected to succeed Carías Andino (and, it must be said, with his support); after the 1954 election did not produce a clear outcome, his vice president, Julio Lozano Diaz, seized control; he was in turn forced out by the military in 1956. A year later, elections under this military government gave Ramón Villeda Morales a six year term of office. This was cut short, again, by a military coup in 1963.

The military held power-- albeit with shifting leadership-- from 1963 until 1971, and again from 1972 to 1982. (Ramón Ernesto Cruz Uclés was elected in 1971 and removed from office less than two years later by the general who preceded him, Oswaldo López Arrellano.) So what would have helped stop the "vicious cycle" of perpetuation of power in the creation of the constitution of the 1980s would have been reducing the influence of the armed forces-- following the model, for example, of Costa Rica, which abolished the military after a devastating civil war ended in 1948.

All throughout 2009, the strongest argument the de facto regime could come up with to justify the coup d'etat was that it was necessary to protect the constitution against an attempt by the President Zelaya to prolong his term in office. Some US pundits agreed that changing term limits was one of the most dangerous things a Latin American government could do. Often these same commentators cited such moves by left of center governments, while staying silent on right of center governments doing the same thing. The occasional US scholar argued that we could assume that the only reason a sitting president in Latin America wanted to promote a constitutional assembly would be to allow re-election, rejecting Manuel Zelaya's repeated denials of this intention and ignoring the many other goals of constitutional revision advanced by his government.

The new congressional action needs to be voted on a second time, by a second congress, to be considered valid, so we won't know until after January 25 whether this symbolic gesture ends here.

To be clear, what the Honduran congress just did is in no way a substitute for what the Zelaya government was proposing, and what the Frente de Resistencia has continued to advocate. Both the Zelaya government and the Frente have pursued completely revisiting the constitution through a participatory forum, an assembly, not via amendment by the Congress, which these bodies argue is not truly representative of the will of the Honduran people or its broader interests and needs.

Juan Barahona of the FNRP said in comments to the AFP that what Honduran politicians

"want is to cleanse themselves of the coup d'Etat".

"For us, you cannot reform a constitution that does not exist; it was nullified on the 28th of June of 2009; since then, we have been in a de facto period".

So don't expect this to end advocacy for a constitutional assembly.

Control of Corruption

So just what is this indicator called "control of corruption" for which the Lobo Sosa government would like to allocate blame to Manuel Zelaya Rosales?

The Millennium Challenge Corporation scorecards are built from data assembled by a variety of third parties. This particular indicator is one of six assembled by the World Bank ('voice and accountability', 'political stability and absence of violence', 'government effectiveness', 'regulatory quality', 'rule of law', and 'control of corruption').

The World Bank says the 'control of corruption' measure

captures perceptions of the extent to which public power is exercised for private gain, including both petty and grand forms of corruption, as well as "capture" of the state by elites and private interests.

Note that last part, about capture of the state by elites and private interests. That's a big part of the problem in Honduras. Not to say that there isn't corruption by government officials for private gain because there certainly is, though no one has quantified it. However, the capture of the state by elites is a significant factor in this indicator, and the coup d'etat exposed just how tightly the Honduran state has been captured by "elites and private interests".

As our previous post shows, the MCC scorecards don't support the claim that this measure was the key to Honduras not being selected for a new Compact. Here's a chart of the World Bank data on this measure from 1996 to 2009:




What the chart shows is that 71%-80% of the world's countries rate better than Honduras on this measure, and that the results haven't changed that much, regardless of which party is in power, since 1998.

Our previous post also noted that Honduras had some problems during the MCC Compact in the 'rule of law' measure. According to the World Bank, 'rule of law'

captures perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of the contract enforcement, property right, the police, and the courts, as well as the likelihood of crime and violence.

The World Bank supplies data from 1996 through 2009 for this measure. Here's the chart:


As you can see, here the chart again shows Honduras with a low score, with 70% to 82% of the countries rated scoring better. It shows a pattern of year to year gains, then a steep crash under the Maduro administration, and then slight gains again under Zelaya.

Politicians, of course, are not required to pay any attention to actual data. In the Honduran context, it is probably great politics for the Lobo Sosa administration to blame this decision on Zelaya. But failing to come to grips with the actual history of performance is unlikely to help the country make a case to the MCC for a future Compact.

It isn't hard to find the data; what may be lacking is the will to face the facts.

Hugo Llorens (18 June 2009): There won't be a coup

The French paper Le Monde reports today on two US State Department cables from Hugo Llorens, US Ambassador to Honduras, to the State Department, one dated 18 June, 2009, and a follow-up dated 19 June 2009. (These cables are not yet up on any of the Wikileaks mirror sites, or Le Monde's cable browser.) For our non-French-speaking audience, here are highlights:

On June 18, 2009, just ten days before the coup, Hugo Llorens wrote that he did not believe in the rumors of a coup then circulating in Honduras (rumors we personally heard as well, from trusted colleagues):

"At present we do not believe that the military leaders have any intention of attacking the legitimate government"

Llorens concluded.

Llorens reported having breakfast with General Romeo Vasquez Velasquez and General Miguel Garcia Padgett and receiving their assurance that the military would not move against the government of Manuel Zelaya. They told Llorens they had spoken in private to politicians to put pressure on them.

Vasquez Velasquez told Llorens that the military was in an intolerable situation because they had been ordered to carry out a poll which was considered illegal by the Honduran judiciary and the election tribunal. He told Llorens that the military "will not do anything without the support of the American administration."

On June 19, Le Monde reported, the tone of Lloren's cables changed:

"Honduras rushes perhaps to a major political confrontation."

Llorens reported his aim to reason with Zelaya and bring him to a face-saving solution to the confrontation. He reported that the Embassy had

"no information suggesting that Zelaya or a member of his government intend to trample democracy and suspend constitutional guarantees. "

Llorens continued to

"believe that Honduran democratic institutions are strong enough to survive, even under stress. "

As Le Monde notes, nine days after the June 19 cable, the military, Congress, and Supreme Court staged the coup.

The jury is still out on whether there are democratic institutions in Honduras strong enough to survive the coup and its aftermath.

Full Circle

High government officials are tried by a procedure distinct from common citizens. We talked about this in the context of the legal case brought by the Public Prosecutor, Luis Rubi, against then president Manuel Zelaya. At the time, we showed that this was the proper, legal proceeding for prosecution of a case against a high government official, such as the President.

Well, the Asociación de Jueces y Magistrados de Honduras, a group of judges that supported the coup, wants the existing fraud case against Zelaya back in the Supreme Court. Their argument is that Zelaya is still a high government official because he is the representative to PARLACEN, and therefore the case must be heard in the Supreme Court.

Good thing the courts are on vacation. Judge Claudio Aguilar has a motion in front of him to nullify the cases against Zelaya brought by the alleged defenders he appointed for Zelaya, and a suggestion that he has no jurisdiction over the case brought by a group of his fellow judges and magistrates. Normally he would have to decide such a motion within three days, but because of the holidays, he has three days from when the courts resume a normal schedule, that is, until January 8, to render a decision.

Not that he can't rule sooner. At the very last minute he was put on the holiday rotation which means he can hear and resolve issues during the break. Speculation is that this was done to prevent another judge from being assigned to the case.

If Aguilar decides he does not have jurisdiction over the case because Zelaya is a member of PARLACEN, the prosecution of Zelaya will have come full circle, back to the Supreme Court; the same Supreme Court that the International Commission of Jurists report noted was "permeated with extreme partisan polarization."

Indefensible Defenders

( on an extended London adventure due to Mother Nature )

On December 16, the Attorney General of Honduras (Procuraduria General) asked a Tegucigalpa court to appoint a public defender for Manuel Zelaya Rosales

"so that they could facilitate proceedings against him,"

said Ethel Deras, the Procuraduria General.

Deras said that rather than smoothing the path for Zelaya, as Canahuati's papers (El Heraldo and La Prensa) have accused, she wants to "move the case forward":

"ex-president Manuel Zelaya Rosales has stated publicly that he will not appear (before a justice) because he considers there aren't sufficient guarantees in the country for his appearance, and he has declined to appoint a defender. This office has request, based on this knowledge, that [the court] name a defense lawyer so the cases can continue.....In conformity with the Legal Proceedings Code and the Honduran Constitution, everyone processed in the courts has the right to a defender."

Just not, apparently, the right to choose their defender.

But wait, it gets better:

"I believe it is in the national interest to finalize once and for all these proceedings and bring them to an end, and a criminal trial comes to an end only when we read the real truth of the facts; it is logical that we continue with the criminal process."

Sigh.

Arturo Corrales, a Micheletti supporter and Lobo Sosa's Minister of Planning, says that Lobo Sosa asked the Attorney General to act.

"What the President (Lobo Sosa) asked of the judicial branch was they look for a legal way to leave the charges behind on these two remaining cases (of supposed corruption) to establish a propitious environment so that the ex president can come to the country."

So it's a request from on high to make this a national priority to settle this case.

This "procedure" goes completely against the Código Procesal Penal of Honduras, the very law Deras cites as supporting her actions.

Here's the problem she's trying to get around. Manuel Zelaya Rosales refuses to participate in the charges against him, and as part of not recognizing the court, has not named a defense lawyer. This pretty much puts the case on hold under Honduran law, until Zelaya either returns and voluntarily presents himself, or is arrested and brought before the court, or names a defense lawyer to represent him.

Under the Code (Chapter 5, Articles 111-122), a defender can be appointed by the court only when the defendant cannot afford to hire one, or is mentally incompetent to designate one. The code assumes the defendant has already been arrested or named as the target of an investigation by the Public Prosecutor. A defendant can only have two defense lawyers, plus one substitute.

Article 14 of the Code says

the right to defense is inviolable....the accused and their defender have the right to be present in all procedural acts that incorporate elements of proof.

Article 15 reads, in full

Everyone should have the technical assistance and advocacy of a legal practitioner, from the time they are held as allegedly involved in a crime, or when they voluntarily surrender and make a declaration, until the sentence has been fully executed. If the accused does not appoint a defender, the judicial authority shall immediately request the appointment of a public defender, or failing that will immediately appoint them self. This right is absolute. Its violation nullifies the acts that occur without the participation of counsel for the accused.

Key points here, which seem to have escaped the top attorney in Honduras charged with following this code: the defendant has to "held" or "voluntarily surrender" to put in motion the appointment of a defender. And the right to appoint a defender is absolute.

Its violation nullifies the acts that occur without the participation of counsel for the accused.

While the UCD is not my idea of a legal authority, they outlined the same points made above in a letter to Supreme Court Chief Justice Aviles, pointing out that this would nullify any judicial actions taken as a result of appointing defenders.

The Honduran papers are unclear on whether the court actually appointed defenders or not, with published reports that they did, and that they are waiting to decide.

So much for a rule of law.

Jorge Reina a terrorist? Ideas are not bombs

As new Honduras cables continue to emerge through Wikileaks, those of us with interests in Honduras are finding the revelations for the most part unsurprising, if distasteful.

Latest case in point is a patronizing summary by ex-Ambassador to Honduras Charles A. Ford providing his "insights" into then-President Zelaya. On Daily Kos, Charles II of Mercury Rising has provided a good analysis of the disturbing tenor of this cable, which can be read in full on quotha for those who can take it, courtesy of the inimitable Adrienne Pine.

Both Charles and Adrienne point out some of the more wretched indictments of a kind of easy assumption of US privilege, including the contempt Ford showed for Zelaya's roots in Olancho and Zelaya's apparent failure to understand that Tegucigalpa was not the big city, a role played in Ford's universe of model Honduran behavior by New Orleans or Miami. You know, where the Honduran elites go to shop so they don't look so, well, Honduran.

Charles also points to one of the curious and almost unintelligible opinions Ford expresses as facts:

Ford is also loose with accusations. He accuses Jorge Antonio Reina Idiaquez of having terrorist connections. At the time, Reina was UN Ambassador and no charges had ever been brought against him, nor have been. I am unable to discover any substantiation for this allegation, and it may well come out of the Contra Wars.

This had bothered me in reading the cable as well, but not because I had not heard such implications. Instead, for me it rang a bell. So I tried to trace back what I remembered, and I think the story is even less sensible than Charles thought.

In September of 2006-- barely nine months into the Zelaya administration, long before the independent actions that led Ford to express frustration with him-- Proceso Digital published an article about Mel knowing "since December 2005" that his chosen Ambassador to the UN, Jorge Arturo Reina, did not have a visa to enter the US.

According to an earlier Proceso Digital article, this lack of a visa was due to Reina being blocked for what the US embassy described as unspecified "terrorist acts".

But Reina himself volunteered what he thought were the actions at issue. Again quoting Proceso Digital:

Reina, brother of the ex-president Carlos Roberto Reina, now dead, remembered that in the 70s he had been accused of placing a bomb on the Palmerola air base, in the central Department of Comayagua, where the US military forces were based.

Reina went on to say that he had been legally cleared of these charges:

he denied his participation in this act, and said that owing to the fact that this was not true the judicial authorities exonerated him of the action and they sent him home in a kind of dismissal of charges.

The reporters, primed by this information, asked the US consul, Ian Brownlea, whether these were the "terrorist acts" in question, getting this gnomic response:

"ideas are not evils, but rather bombs...the place where the acts occurred doesn't matter".

Indeed. It would seem that the place where the acts occurred does actually matter, if the first half of this statement is, as it appears to be, a grudging agreement that the terrorist actions imputed to Reina involved bombs.

There is something confused in Reina's own account: Palmerola only became operational in 1981. I remember vividly reports of a bomb set off in a restaurant in Comayagua during the 1980s when I was living in the country, a restaurant my Honduran friends said was targeted because the US forces ate there. The New York Times story on this incident in 1987 says six US soldiers and six Hondurans were wounded.

Trying to find press accounts to date these events was a painful reminder that the US presence at Palmerola was not accepted peacefully, no matter what the US would like to tell its citizenry now.

The period from 1987 to 1989 saw a series of bombs or grenades exploded near places frequented by US forces, in La Ceiba, San Pedro Sula, and Comayagua, according to reports in the LA Times gathered in its archives. An LA Times article from 1989 reported two other incidents of attacks on US troops, one a bombing that definitely took place on the road from Comayagua to Palmerola. As late as 1994, the Orlando Sentinel reported on the explosion of a bomb in Comayagua that authorities said was intended for Palmerola.

Bombings drew a lot of press attention but there were other forms of protest as well. An Orlando Sentinel article from 1986 reported on a rally where Juan Almendares spoke out against the bad social effects of the base, promoting prostitution in Comayagua.

But Jorge Arturo Reina was not mentioned as a suspect in any English-language coverage of bombings on or near Palmerola. What he was, without doubt, was an outspoken critic of what he repeatedly called the US "occupation" of Honduras, which he said strengthened the right wing. He called for the withdrawal of US troops, and warned that death lists were circulating with names of many, including his own. (The news articles I consulted are pay for view, so I do not link to them here.)

Palmerola had already come to represent US occupation by 1983, when Reina was widely quoted criticizing increasing tensions with Sandinista Nicaragua as not in Honduras' interest. US newspapers, with remarkable uniformity, characterized Reina at the time as "leftist", at times taking care to note he was "not Marxist".

Reina criticized US basing at Palmerola for dragging Honduras into El Salvador's civil war as well. An article in 1983 in El Pais of Spain, describing him as secretary general of the "Liberal Alliance of the People" (Alianza Liberal del Pueblo, a movement within the Liberal Party), quoted him as saying

"The US refused to negotiate in El Salvador because it has an exclusively military version of the facts and considers that the cause of the Salvadoran crisis was Cuba and its solution uniquely military", adding that "Washington discovered later that the cause was not Cuba and that the situation does not have a military solution, but before this change of view thousands of deaths were produced".

These are the kind of views that undoubtedly made Reina, like Zelaya, appear not to be a friend of the US. But they hardly qualify him as a terrorist.

After all, as the US consul himself said, "ideas are not evils". Nor are they bombs.

But apparently unsubstantiated rumors are fine fodder for a US Ambassador's briefings to his successor.