The Organization of American States has given the coup government of Honduras three days to restore President Manuel Zelaya to office or face suspension from the organization. Every nation in the hemisphere, except for the United States, has recalled its ambassador from the Central American nation -- as have Spain and France. The EU, the UN, and the United States have all condemned Sunday's coup d'etat.
In the face of the international onslaught, the Honduran military insists that the coup was "legal," and in an interview with NYT reporter Marc Lacey the military's top lawyer displayed a set of documents he claims justify Sunday's military action. The unfortunate fact is the military's claim is undoubtedly correct -- in a technical sense. That begs the question, however, of whether the coup was legitimate.
Join me on the flip for a discussion of that question...
José Miguel Insulza, Secretary General of the OAS, has condemned what he calls an "an old-fashioned" coup in unusually strong language:
We need to show clearly that military coups will not be accepted. We thought we were in an era when military coups were no longer possible in this hemisphere.
The OAS statement itself, approved unanimously by the membership in an emergency meeting last night, was even harsher. The OAS statement condemns:
vehemently the coup d'état staged against the constitutionally established Government of Honduras, and the arbitrary detention and expulsion from the country of the constitutional president José Manuel Zelaya Rosales, which has produced an unconstitutional alteration of the democratic order.
President Obama has called the coup "not legal" and said Zelaya remains the president and should be restored to office.
But was the coup "unconstitutional" and "not legal"?
The Honduran military insists it was both constitutional and legal. Here's their argument, in a nutshell:
The detention order, signed June 26 by a Supreme Court judge, ordered the armed forces to detain the president, identified by his full name of José Manuel Zelaya Rosales, at his home in the Tres Caminos area of the capital. It accused him of treason and abuse of authority, among other charges.
"It was a clean operation," Colonel Bayardo said, dismissing Mr. Zelaya’s remarks before the United Nations General Assembly on Tuesday in which he described the arrest as a brutal coup. "It was a fast operation. It was over in minutes, and there were no injuries, no deaths. We said, ‘Sir, we have a judicial order to detain you.’ We did it with respect."
I've read the Honduran Constitution, written in 1982 at the height of the Central American civil wars, and as far as I can tell it contains no provision for impeachment of the president. Rather, Article 272 of the Constitution gives the military a "tutelary role" over the civilian government. In a diary I posted Monday, I cited Honduran political scientist Ernesto Paz Aguilar's 1992 comments about the Constitution:
The Honduran Constitution indicates that the armed forces a permanent national institution -- professional, apolitical, obedient, and nondeliberating. The last three characteristics are simply fictitious. The armed forces of Honduras form the principal political force of the country and thus exercise a tutelary role over the other institutions of government. The armed forces constitute a de facto power, not subordinated to civilian political power.
In the first place, the armed forces are charged with fulfilling eminently political functions: maintaining the rule of the Constitution, the principles of free suffrage, and the alternation of the office of the presidency of the republic. In any liberal democracy these are the tasks of the judicial branch. Because of the armed forces' role in judging the conduct of civilian government, Honduran democracy finds itself under the permanent threat of a coup d'etat. The armed forces determine, in fact, whether the civilian government is maintaining the Constitution.
The Honduran Constitution is remarkably easy to amend. Article 373 establishes the process:
The reform of this Constitution can be decreed by the National Congress, in ordinary session, with a two-thirds vote of the totality of its members. The decree will indicate to that effect the article or articles that must be reformed and will have to be ratified by the following ordinary legislative session, by an equal number of votes, in order to enter into force.
In fact, the Constitution has been amended in 22 of the 23 years between when it entered into force and 2005, date of the copy I am consulting online. Nevertheless, there are certain provisions that are defined as untouchable. Article 374 of the Constitution establishes:
The amendment of the previous article [and] the present article, under any circumstances, is prohibited, [as is the amendment of any of] the constitutional articles that refer to the form of government, to the [boundaries of] the national territory, to the presidential term of office, to the prohibition on any citizen who has ever exercised the office of President of the Republic at any time returning to exercise it again, and ... to those who cannot be President of the Republic in the subsequent period.
Serious penalties are laid down for those who attempt to change the "untouchable" provisions of the Constitution. Article 4 declares that the failure to respect alternation in power constitutes "treason" and Article 239 strips violators of their right to hold political office for ten years.
The Honduran Supreme Court, the National Congress, and the Armed Forces have accused President Zelaya of seeking to extend his term of his office, thereby committing treason under Article 4.
I don't know if Zelaya has ever spoken publicly of changing the Constitution to allow reelection. Sunday's coup was conducted to prevent him from holding a plebiscite, which is allowed under Article 5 of the Constitution. The plebiscite would have asked the voters whether there should be a second plebiscite in October on whether or not a Constituent Assembly should be called.
The Honduran Constitution as currently written does not explicitly allow for holding a Constituent Assembly, but Article 2 does state that
Sovereignty belongs to the People from whom emanate all the Powers of State which are exercised through representation. The sovereignty of the People can also be exercised directly, through Plebiscites and Referenda.
Zelaya's effort to allow the electorate to exercise its sovereignty directly clearly is in accord with Article 2.
There are at least two serious contradictions in the Honduran Constitution:
First, the untouchability of certain constitutional provisions, as expressed in Article 374, clearly contradicts the declaration of popular sovereignty expressed in Article 2. Either the people are fully sovereign, and can choose whatever form of government they choose, or their sovereignty is limited by the decisions a group of legislators made back in 1982. Yet the constitution states both conditions.
Second, the Constitution identifies the Armed Forces as apolitical, nondeliberative and obedient, but then charges them with guaranteeing the constitutional order -- including the limitations on popular sovereignty contained in Article 374. This measure, of necessity, militarizes constitutional crises. When a substantial proportion of the population believes that its sovereign rights are being violated by state institutions, their only recourse is to violent actions.
The history of military coups in Latin America is long and sad, and the governments of the hemisphere have decided it is time for that history to be left in the past. Honduras, unfortunately, is behind the times, and its current constitution demonstrates just how far out of date it is.
One need not support President Zelaya's specific reform program to condemn the coup that was conducted against him. In fact, Latin American political figures as disparate as Alvaro Uribe and Rafael Calderon, on the right, and Raul Castro and Hugo Chavez, on the left, have come together to condemn the use of military force to resolve political conflicts.
The Honduran coup may have been "legal," according to an outdated and anachronistic constitution. By all modern measures of democratic legitimacy, however, it is clearly and undeniably illegitimate.