OPEN AND SHUT: THE CASE OF THE HONDURAN COUP

 

id: 217920

date: 7/24/2009 0:23

refid: 09TEGUCIGALPA645

origin: Embassy Tegucigalpa

classification: CONFIDENTIAL

destination: 09TEGUCIGALPA578

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C O N F I D E N T I A L TEGUCIGALPA 000645

 

SIPDIS

 

WHA FOR A/S TOM SHANNON

L FOR HAROLD KOH AND JOAN DONOGHUE

NSC FOR DAN RESTREPO

 

E.O. 12958: DECL: 07/23/2019

TAGS: PGOV, KDEM, KJUS, TFH01, HO

SUBJECT: TFHO1: OPEN AND SHUT: THE CASE OF THE HONDURAN COUP

 

REF: TEGUCIGALPA 578

 

Classified By: Ambassador Hugo Llorens, reasons 1.4 (b and d)

 

1. (C) Summary: Post has attempted to clarify some of the

legal and constitutional issues surrounding the June 28

forced removal of President Manuel "Mel" Zelaya. The

Embassy perspective is that there is no doubt that the

military, Supreme Court and National Congress conspired

on June 28 in what constituted an illegal and

unconstitutional coup against the Executive Branch, while

accepting that there may be a prima facie case that Zelaya

may

have committed illegalities and may have even violated the

constitution. There is equally no doubt from our perspective

that Roberto Micheletti's assumption of power was

illegitimate. Nevertheless, it is also evident that the

constitution itself may be deficient in terms of providing

clear procedures for dealing with alleged illegal acts by

the President and resolving conflicts between the branches

of government. End summary.

 

2. (U) Since the June 28 removal and expulsion of President

Zelaya by the Honduran armed forces, the Embassy has

consulted Honduran legal experts (one cannot find a fully

unbiased professional legal opinion in Honduras in the

current politically charged atmosphere) and reviewed the

text of the Honduran Constitution and its laws to develop a

better understanding of the arguments being parlayed by the

coup's supporters and opponents.

 

-------------------------------

Arguments of the Coup Defenders

-------------------------------

 

3. (SBU) Defenders of the June 28 coup have offered some

combination of the following, often ambiguous, arguments to

assert it's legality:

 

-- Zelaya had broken the law (alleged but not proven);

 

-- Zelaya resigned (a clear fabrication);

 

-- Zelaya intended to extend his term in office

(supposition);

 

-- Had he been allowed to proceed with his June 28

constitutional reform opinion poll, Zelaya would have

dissolved Congress the following day and convened a

constituent assembly (supposition);

 

-- Zelaya had to be removed from the country to prevent a

bloodbath;

 

-- Congress "unanimously" (or in some versions by a 123-5

vote) deposed Zelaya; (after the fact and under the cloak

of secrecy); and

 

-- Zelaya "automatically" ceased to be president the moment

he suggested modifying the constitutional prohibition on

presidential reelection.

 

4. (C) In our view, none of the above arguments has any

substantive validity under the Honduran constitution. Some

are outright false. Others are mere supposition or ex-post

rationalizations of a patently illegal act. Essentially:

 

-- the military had no authority to remove Zelaya from the

country;

 

-- Congress has no constitutional authority to remove a

Honduran president;

 

-- Congress and the judiciary removed Zelaya on the basis

of a hasty, ad-hoc, extralegal, secret, 48-hour process;

 

-- the purported "resignation" letter was a fabrication and

was not even the basis for Congress's action of June 28;

and

 

-- Zelaya's arrest and forced removal from the country

violated multiple constitutional guarantees, including the

prohibition on expatriation, presumption of innocence and

right to due process.

 

-------------------------------------------

Impeachment under the Honduran Constitution

-------------------------------------------

 

5. (U) Under the Honduran Constitution as currently

written, the President may be removed only on the basis of

death, resignation or incapacitation. Only the Supreme

Court may determine that a President has been

"incapacitated" on the basis of committing a crime.

 

6. (U) There is no explicit impeachment procedure in the

1982 Honduran Constitution. Originally, Article 205-15

stated that Congress had the competence to determine

whether "cause" existed against the President, but it did

not stipulate on what grounds or under what procedure.

Article 319-2 stated that the Supreme Court would "hear"

cases of official or common crimes committed by high-level

officials, upon a finding of cause by the Congress. This

implied a vague two-step executive impeachment process

involving the other two branches of government, although

without specific criteria or procedures. However, Article

205 was abrogated in 2003, and the corresponding provision

of Article 319 (renumbered 313) was revised to state only

that the Supreme Court would hear "processes initiated"

against high officials. Thus, it appears that under the

Constitution as currently written, removal of a president

or a government official is an entirely judicial matter.

 

7. (U) Respected legal opinion confirms that the removal of

a president is a judicial matter. According to a 2006 book

by respected legal scholar Enrique Flores Valeriano -- late

father of Zelaya's Minister of the Presidency, Enrique

Flores Lanza -- Article 112 of the Law of Constitutional

Justice indicates that if any government official is found

to be in violation of the Constitution, that person should

be removed from office immediately with the ultimate

authority on matters of Constitutionality being the Supreme

Court.

 

8. (U) Many legal experts have also confirmed to us that

the Honduran process for impeaching a President or other

senior-level officials is a judicial procedure. They

assert that under Honduran law the process consists of formal

criminal charges being filed by the Attorney General

against the accused with the Supreme Court. The Supreme

Court could accept or reject the charges. If the Court

moved to indict, it would assign a Supreme Court

magistrate, or a panel of magistrates to investigate the

matter,

and oversee the trial. The trial process is open and

transparent and the defendant would be given a full right

of self-defense. If convicted in the impeachment trial,

the magistrates have authority to remove the President or

senior official. Once the President is removed, then the

constitutional succession would follow. In this case, if a

President is legally charged, convicted, and removed, his

successor is the Vice President or what is termed the

Presidential Designate. In the current situation in

Honduras, since the Vice President, Elvin Santos, resigned

last December in order to be able to run as the Liberal

Party Presidential candidate, President Zelaya's successor

would be Congress President Roberto Micheletti.

Unfortunately, the President was never tried, or

convicted, or was legally removed from office to allow a

legal succession.

 

-----------------------------

The Legal Case Against Zelaya

-----------------------------

 

9. (C) Zelaya's opponents allege that he violated the

Constitution on numerous grounds, some of which appear on

their face to be valid, others not:

 

-- Refusing to submit a budget to the Congress: The

Constitution is unambiguous that the Executive shall submit

a proposed budget to Congress by September 15 each year

(Art. 367), that Congress shall approve the budget (Art.

366) and that no obligations or payments may be effectuated

except on the basis of an approved budget (Art. 364);

 

-- Refusing to fund the Congress: Article 212 states that

the Treasury shall apportion quarterly the funds needed for

the operation of the Congress;

 

-- Proposing an illegal constitutional referendum: The

Constitution may be amended only through two-thirds vote of

the Congress in two consecutive sessions (Art. 373 and

375); a constituent assembly to rewrite the constitution,

as Zelaya promoted, is therefore unconstitutional; however,

it is not clear that proposing a constituent assembly in

itself violates the constitution, only that any changes

ensuing from that assembly would be invalid;

 

-- Defying the judgment of a competent court: Zelaya

insisted on pushing ahead with his constitutional reform

opinion poll after both a first-instance court and an

appeals court ordered him to suspend those efforts;

however, while he clearly intended to follow through with

the poll, he never actually did it;

 

-- Proposing to reform unreformable articles: Since

Zelaya's proposed constituent assembly would have unlimited

powers to rewrite the constitution, it violated Article

374, which makes certain articles unamendable; once again,

though, Zelaya never actually attempted to change the

so-called "carved in stone" articles; it was only assumed

he intended to;

 

-- Dismissing the armed forces chief: The Supreme Court's

Constitutional Hall ruled June 25 that Zelaya was in

violation of the Constitution for dismissing Defense Chief

Vasquez Velasquez; the Constitution (Art. 280) states that

the President may freely name or remove the chief of the

armed forces; but the court ruled that since Zelaya fired

him for refusing to carry out a poll the court had ruled

illegal, the firing was illegal.

 

10. (C) Although a case could well have been made against

Zelaya for a number of the above alleged constitutional

violations, there was never any formal, public weighing of

the evidence nor any semblance of due process.

 

-----------------------

The Article 239 Cannard

-----------------------

 

11. (U) Article 239, which coup supporters began citing

after the fact to justify Zelaya's removal (it is nowhere

mentioned in the voluminous judicial dossier against

Zelaya), states that any official proposing to reform the

constitutional prohibition against reelection of the

president shall immediately cease to carry out their

functions and be ineligible to hold public office for 10

years. Coup defenders have asserted that Zelaya therefore

automatically ceased to be President when he proposed a

constituent assembly to rewrite the Constitution.

 

12. (C) Post's analysis indicates the Article 239 argument

is flawed on multiple grounds:

 

-- Although it was widely assumed that Zelaya's reason for

seeking to convoke a constituent assembly was to amend the

constitution to allow for reelection, we are not aware

that he ever actually stated so publicly;

 

-- Article 239 does not stipulate who determines whether it

has been violated or how, but it is reasonable to assume

that it does not abrogate other guarantees of due process

and the presumption of innocence;

 

-- Article 94 states that no penalty shall be imposed

without the accused having been heard and found guilty in a

competent court;

 

-- Many other Honduran officials, including presidents,

going back to the first elected government under the 1982

Constitution, have proposed allowing presidential

reelection, and they were never deemed to have been

automatically removed from their positions as a result.

 

13. (C) It further warrants mention that Micheletti himself

should be forced to resign following the logic of the 239

argument, since as President of Congress he considered

legislation to have a fourth ballot box ("cuarta urna") at

the November elections to seek voter approval for a

constituent assembly to rewrite the constitution. Any

member of Congress who discussed the proposal should also

be required to resign, and National Party presidential

candidate Pepe Lobo, who endorsed the idea, should be

ineligible to hold public office for 10 years.

 

--------------------------------------------- -

Forced Removal by Military was Clearly Illegal

--------------------------------------------- -

 

14. (C) Regardless of the merits of Zelaya's alleged

constitutional violations, it is clear from even a cursory

reading that his removal by military means was illegal, and

even the most zealous of coup defenders have been unable to

make convincing arguments to bridge the intellectual gulf

between "Zelaya broke the law" to "therefore, he was packed

off to Costa Rica by the military without a trial."

 

-- Although coup supporters allege the court issued an

arrest warrant for Zelaya for disobeying its order to

desist from the opinion poll, the warrant, made public days

later, was for him to be arrested and brought before the

competent authority, not removed from the county;

 

-- Even if the court had ordered Zelaya to be removed from

the country, that order would have been unconstitutional;

Article 81 states that all Hondurans have the right to

remain in the national territory, subject to certain narrow

exceptions spelled out in Article 187, which may be invoked

only by the President of the Republic with the agreement of

the Council of Ministers; Article 102 states that no

Honduran may be expatriated;

 

-- The armed forces have no/no competency to execute

judicial orders; originally, Article 272 said the armed

forces had the responsibility to "maintain peace, public

order and the 'dominion' of the constitution," but that

language was excised in 1998; under the current text, only

the police are authorized to uphold the law and execute

court orders (Art. 293);

 

-- Accounts of Zelaya's abduction by the military indicate

he was never legally "served" with a warrant; the soldiers

forced their way in by shooting out the locks and

essentially kidnapped the President.

 

15. (U) The Armed Forces' ranking legal advisor, Col.

Herberth Bayardo Inestroza, acknowledged in an interview

published in the Honduran press July 5 that the Honduran

Armed Forces had broken the law in removing Zelaya from the

country. That same day it was reported that the Public

Ministry was investigating the actions of the Armed Forces

in arresting and deporting Zelaya June 28 and that the

Supreme Court had asked the Armed Forces to explain the

circumstances that motivated his forcible exile.

 

16. (C) As reported reftel, the legal adviser to the

Supreme Court told Poloff that at least some justices on

the Court consider Zelaya's arrest and deportation by the

military to have been illegal.

 

------------------------------------------

Congress Had no Authority to Remove Zelaya

------------------------------------------

 

17. (C) As explained above, the Constitution as amended in

2003 apparently gives sole authority for removing a

president to the judiciary. The Congressional action of

June 28 has been reported in some media as acceptance of

Zelaya's resignation, based on a bogus resignation letter

dated June 25 that surfaced after the coup. However, the

June 28 Congressional resolution makes no mention of the

letter, nor does it state that Congress was accepting

Zelaya's resignation. It says Congress "disapproves" of

Zelaya's conduct and therefore "separates" him from the

office of President -- a constitutional authority Congress

does not have. Furthermore, a source in the Congressional

leadership told us that a quorum was not present when the

resolution was adopted, rendering it invalid. There was no

recorded vote, nor a request for the "yeas" and "nays."

 

18. (C) In sum, for a constitutional succession from Zelaya

to Micheletti to occur would require one of several

conditions:

 

Zelaya's resignation, his death, or permanent medical

incapacitation (as determined by judicial and medical

authorities), or as discussed previously, his formal criminal

conviction and removal from office. In the absence of any of

these conditions and since Congress lacked the legal

authority to remove Zelaya, the actions of June 28 can only

be considered a coup d'etat by the legislative branch, with

the support of the judicial branch and the military, against

the executive branch. It bears mentioning that, whereas the

resolution adopted June 28 refers only to Zelaya, its effect

was to remove the entire executive branch. Both of these

actions clearly exceeded Congress's authority.

 

-------

Comment

-------

 

19. (C) The analysis of the Constitution sheds some

interesting light on the events of June 28. The Honduran

establishment confronted a dilemma: near unanimity among

the institutions of the state and the political class that

Zelaya had abused his powers in violation of the

Constitution, but with some ambiguity what to do about it.

Faced with that lack of clarity, the military and/or

whoever ordered the coup fell back on what they knew -- the

way Honduran presidents were removed in the past: a bogus

resignation letter and a one-way ticket to a neighboring

country. No matter what the merits of the case against

Zelaya, his forced removal by the military was clearly

illegal, and Micheletti's ascendance as "interim president"

was totally illegitimate.

 

20. (C) Nonetheless, the very Constitutional uncertainty

that presented the political class with this dilemma may

provide the seeds for a solution. The coup's most ardent

legal defenders have been unable to make the intellectual

leap from their arguments regarding Zelaya's alleged crimes

to how those allegations justified dragging him out of his

bed in the night and flying him to Costa Rica. That the

Attorney General's office and the Supreme Court now

reportedly question the legality of that final step is

encouraging and may provide a face-saving "out" for the two

opposing sides in the current standoff. End Comment.

LLORENS

 

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