Sunday, July 05, 2009

Justifying and legitimizing Zelaya’s ouster

In the past week, dozens of politicians, lawyers, foreign-policy experts, university professors, researchers and otherwise “thinkers” have come out in the news media and academic journals to give their opinion on whether or not Manuel Zelaya was legally ousted as President of Honduras; whether or not his shipment to Costa Rica at the wee hours of the morning was a crime; whether or not Zelaya should be reinstated in power; whether or not the Organization of American States (OAS), the United Nations (UN) and other international organizations, as well as foreign governments, should recognize Honduras’ new government; and so forth. These demonstrations of knowledge consist on different views and approaches to Honduras’ political climate.

Moreover, I have yet to find at least one point of agreement between the opinions of the overwhelming majority of Hondurans, Honduran government institutions, Honduran non-governmental organizations, and the opinions of the vast majority of foreigners, foreign governments and international organizations.

I have a rule of thumb when two or more persons, institutions, governments or any type of actors have diametrically opposite views: 1) they’re either misinformed about each others’ views; 2) or there are irreconcilable political, economic or cultural beliefs and interests at stake between the actors. In the “Honduras vs. the World” or “Freedom vs. Tyranny” case, I believe that as much as there is misinformation, there also are interests at stake. Let’s tackle both of these circumstances.


No one expert writing or speaking about the Honduran’ political crisis has convinced me about any legal, political or constitutional aspect involving this case. However, the conglomerate of distinct views I’ve read or listened to has enriched my knowledge of the kind of legal aspects being debated. There are plenty of legal dispositions in Honduran law and Constitution, as well as in juridical doctrine and in jurisprudence, but I will focus on the most prevailing dispositions applicable to this case.

The Constitution of Honduras is clear about the faculties and limits of Executive powers. A specific limit set upon the Executive is one non-renewable four-year term. This applies for the President as well as the three Presidential Designates (equivalent to a Vice President). Article 239 is clear in that anyone who violates this disposition or proposes its reform, as well as those who directly or indirectly support the violation or reform, will immediately be stripped of their powers and removed from office, and will remain unable to opt for a government position for the next 10 years. There is no need for judicial or legislative action for the enforcement of this article’s charge. Article 4 of the same constitution establishes that whoever infringes the alternation of presidential terms commits treason to the Republic of Honduras.

So, technically speaking, the moment in which Manuel Zelaya publically proposed a constituent assembly or the derogation of our 1982 Constitution, he immediately quit being the President of Honduras. If I remember correctly, he announced this plan in late December 2008. However, Zelaya’s official plans for calling a constituent assembly and the eventual derogation of our Constitution were set on stone when the State publication of Honduras, La Gaceta, published Executive Decree 20-2009 on June 25, 2009. In this decree, the Executive ordered a nationwide opinion survey, to be conducted on June 28 of that year, which enquired the following: “Are you in favor that in the 2009 general elections are fourth ballot box be installed, in which the population can decide to call for a constituent assembly? Yes – No”

As you can see, with this public demonstration planning to abolish our Constitution, President Zelaya was officially declaring that he did not care about what article 239 said and, following Hugo Chávez’s lead, wanted to continue in power. Thus, his condition as President of Honduras had ceased.

The Honduran Constitution does not contain a chapter that can be used as a manual to remove or impeach a president. Nonetheless, article 239 is clear about the moment in which a president is immediately stripped from his or her executive powers. So, by the time that Zelaya was drop-kicked from Honduran territory on June 28, he was a regular citizen with no presidential powers. Let it be known that Congress, that very day, voted unanimously to remove Zelaya from power, formalizing his cessation as President. At the same time, they voted to install Roberto Micheletti as president, following the constitutional line of succession. For this reason, Micheletti’s government is constitutional, legal and legitimate, and should be recognized by the international community.

The Honduran Constitution and law codes, following universal principles, establish several other precepts:

  • Everyone is subject to the law and no person is above it;
  • No government official has more power than the one invested upon him or her by the law;
  • Any act carried out illegally by a government official is null and implies civil, penal and administrative responsibility for this person;

What is so difficult to understand about these precepts? Manuel Zelaya and his satraps never understood what they meant or couldn’t care less about them.

You could say that asking the voting population whether or not they want a binding referendum to call for a constituent assembly is not a big deal. What if our Constitution really stinks and should be replaced by a new one? Well there isn’t a clear-cut process for doing this. However, there are some legal (albeit untried) means to work this out, yet Zelaya did not do this. He was lazy and wanted to impose a new Constitution at any cost.

First of all, it was Zelaya and his government officials who spearheaded this movement in favor of calling a non-binding referendum or survey (Jun. 28, 2009) that would lead to a binding referendum (Nov. 29, 2009) which would decide to call for a constituent assembly. Zelaya’s government justified its plan based on the Law for Civil Participation. This law is clear in that citizens may request government its action in all sorts of circumstances and situations. However, it does not give faculties to the government to request citizens to request its action upon a specific situation, like Zelaya’s government intended to do. If anything, it would be citizens themselves, organized nationwide, who would have to request the government to install a fourth ballot box which would decide the call for a constituent assembly. Zelaya did things incorrectly–making his government a judge in its own cause–since he wanted to carry out a “survey” (with the effects of a non-binding referendum), and it would be his own government who would supervise and announce its results. Zelaya did not want the Supreme Electoral Tribunal to have anything to do with his survey, which is why this tribunal decided to call the survey illegitimate.

Moreover, Zelaya refused to follow the Law for Plebiscites and Referenda, which was recently approved by Congress so that Zelaya’s government did not have an excuse for using an alternate route for a survey. This new law isn’t the best thing in the world, but it surely would have put some checks on the Executive’s survey, which Zelaya did not want.

All things considered, there are still several questions unanswered: Why wasn’t Zelaya simply arrested and taken to court to be tried for his 18 alleged crimes? Were his rights violated when he was taken from his home at the wee hours in the morning and flown to Costa Rica against his will? Who ordered Zelaya’s removal from Honduran territory?

Honduran Coronel Bayardo Inestroza, legal advisor to the Honduran Armed Forces, stated in an interview to and El Nuevo Herald, that he was behind the legal decisions for executing Zelaya’s arrest and search warrants. According to him, the Supreme Court of Justice of Honduras extended these warrants, to be executed by the Armed Forces and not the National Police, since this was a constitutional matter. However, the Armed Forces, instead of taking Zelaya to court, decided to fly him to Costa Rica, apparently without the Court’s consent.

The two biggest crimes here are the fact that the arrest and search warrants were not executed at legal hours. The Honduran Constitution says there cannot be home searches between sunset and sunrise; the Honduran Penal Procedures Code is more specific: no home searches between 6 p.m. and 6 a.m. The other crime is taking Zelaya out of the country, against his will, instead of taking him to court to be tried.

Coronel Bayardo Inestroza stated that, in order to justify the Armed Forces’ actions –which were illegal but legitimate–, he relied on a criminal defense called necessity. Remembering my legal instruction from Prof. Jair López, I decided to review my textbook from Criminal Law class, which is widely used in private and public universities in Honduras. This book’s author, Prof. Suazo Lagos, explains very clearly on what necessity consists. The 10th edition of Lecciones de Derecho Penal I, quoting universal doctrine by von Liszt, Maurach, Díaz Palos, Mezger and others, on the subject matter, states that there are two types of state of necessity. The first kind is justifying necessity, while the other is exculpating necessity.

In both cases, a greater harm is prevented from happening by causing a harm of lesser juridical value. Justifying necessity occurs when there is a conflict between juridically-protected goods of unequal value (e.g., human life vs. physical property), while exculpating necessity pertains to a conflict between juridically-protected goods of equivalent value (e.g., human life vs. human life–regardless of how many lives are at stake). In our case, the Honduran Army can shield its actions by using the justifying necessity defense.

What are the two juridically-protected goods in our case? The first one is the lives and physical integrity of Hondurans (greater value) and the second one is Manuel Zelaya’s human rights (lesser value). As I see it, there is a conflict between 1) the very probable chaos and shedding of blood if Zelaya was kept in Honduran territory; 2) and the violation of Zelaya’s human rights to personal liberty, freedom of movement and so on.

First off, keeping Zelaya in Honduras would have made his supporters protest and violently claim his liberation. Just as experienced today, while Zelaya’s supporters awaited his return, hoards of them were causing great mischief at Tegucigalpa’s airport, making the Army and National Police use violence to fight the protestors’ violence.

The harm to human lives and physical integrity of Hondurans is of greater juridical value than the forced ouster of Zelaya from Honduran territory. Yes, Zelaya’s human rights were violated last Sunday, but that is preferable over the injury and death of tens, hundreds or thousands of Hondurans who would probably use violence to fight for the liberation of Zelaya, disregarding any type of official accusation and judgment by Honduran authorities. Also, as explained elsewhere, Manuel Zelaya is not the most law-abiding citizen; his anarchist tendencies are visible–having him in Honduran territory while being tried would have probably caused an extremely violent national convulsion.

What made the Armed Forces think Zelaya’s supporters were going to use violence that might lead to bodily harm and even deaths? I don’t know. What I do know, however, is that they were right in their estimate of Zelaya’s supporters’ fixation for violence. This past week, pro-Zelaya mobs have used excessive violence to destroy private property and attack military and police officers. These officers, in order to defend themselves, have counterattacked, causing harm to the mob members.

Additionally, today’s pro-Zelaya demonstrations in Tegucigalpa’s Toncontín airport, have led to the use of violence from the military and the police. Protestors, instead of peacefully waiting for the arrival of Zelaya, decided to break into the airport and attack the military and police, which reacted by defending themselves and causing harm to many of these protestors.

Going back to the legal considerations of this case, Manuel Zelaya’s human rights (e.g., liberty) were violated in order for the human rights of countless persons to be preserved (e.g., life). A lesser harm was caused in order to prevent a greater harm. The military’s actions were not legal, but definitely were legitimate and justified. I guess this is a case in which justice prevails over the law.

I am very certain that a regular citizen like me is no threat to the stability, social peace and order of Honduras, which is why I am not afraid of the military knocking on my door tomorrow at 5 AM to ship me to Costa Rica against my will. Zelaya, on the other hand, was surely a threat to Honduras; the military, to my opinion, did the right thing by preventing a greater harm from coming about.

Day-to-day cases apply necessity as a criminal defense. Take a poor mother who finds herself and her five children starving to death. She may be exempted from a criminal conviction after stealing two-$4 loaves of bread from a grocery store. You need not view it as “poor people should be allowed to steal,” but rather as “the lives and health of 6 human beings is more valuable than two-$4 loaves of bread.” In a case like this, a good defendant could definitely win a case invoking necessity as a criminal defense.

Applying this simple example to Zelaya’s violent usher from the country, I would say that the mother is the military; her children are the lives of Hondurans who would have risked their lives for Zelaya’s liberation, had he been kept in our territory for trial; the loaves of bread are Zelaya’s rights; the grocery store owner would be Manuel Zelaya himself. Military officials can surely be prosecuted by the Attorney General of Honduras, but this prosecution might not prosper in court, since the military officials might invoke necessity as a criminal defense–and rightly so.

The information provided above makes me confident that what the military did to preserve order in Honduran territory was legitimate and justified, even though Zelaya’s human rights were violated. There was never a coup, since the constitutional order was never ruptured by the military (they never took over power) and all branches of government remained intact. President Micheletti’s interim government is legitimate and should be recognized by everyone worldwide.

2. Irreconcilable ideologies and interests

Besides being ill informed, actors disagree over matters when there are irreconcilable ideologies or interests at stake. The so-called international community and the international news media, to my belief, are now fairly informed about what is going in Honduras, including the reasons for removing Zelaya from power, the legal basis for taking Zelaya out of Honduran territory and so on. I believe, nonetheless, foreign nations (especially from the Americas), international organizations (e.g., UN, OAS) and the foreign news media are ideologically opposed to what most Hondurans want. Basically, as it is well known, these actors tend to be of liberal, leftist tendencies, who oppose any actions that go against their beliefs and interests.

Let’s analyze the irreconcilable ideologies and interests at stake between foreign actors and the Honduran population. I will focus on the interests, since, unlike ideologies, they are more tangible and describable without falling into oversimplification.

The three types of actors and their interests, as I see them, are as follow:

a. Foreign governments, especially from the Americas: Their main interest is not allowing a domino effect take place in the Latin American region. If the Honduran political situation is left unattended, with no action or reprimand, governments in this part of the world might face citizen uproar in their respective countries, following Honduras’ lead. Governments of all kinds (very democratic or not) want stability and always steer away from losing legitimacy in the eyes of their citizens. The domino effect I talk about is of lesser concern to non-Latin American countries, but they still care about stability in the governments of the Americas, for all sorts of reasons.

Nations like Venezuela, Cuba, Brazil, Nicaragua, Bolivia, Argentina, Paraguay, El Salvador and Ecuador all have leftist presidents. Some are more radical than others, but they all remain highly socialistically-minded, one way or another. Having a country like Honduras revolt against the “Caracas Consensus” or the “Havana Consensus” might definitely harm leftist governments; their populations, if unsatisfied with their governments, would find a precedent for shooing away a leftist president who has not accomplished what he or she has promised–especially if he or she consistently violates the law.

It is obvious to me that the aforementioned leftist governments are interested in keeping “order” in Honduras, so that their socialist-imperialist plan, following Chávez and Fidel Castro, does not fall through. By doing this, with the help of the OAS and the UN, they defy and disrespect Honduras’ self-determination and sovereignty. Don’t they know that the maximum authority in a nation-state is the Sovereign (the people or the will of the people)?

b. International organizations such as the United Nations and the Organization of American States: Their positions are very similar to that of governments in Latin America. After all, international organizations are the amalgamation of nation-states, fighting for their national interest–and, to some extent, a common goal. Sometimes this interest coincides amongst them, like in the case of condemning Honduras for drop-kicking an absurdly leftist president like Manuel Zelaya.

Within these organizations, there are also many interests at stake. For example, in the case of the OAS, its Secretary General, José Miguel Insulza, officially ends his term in 2010. He is able to reelect himself and undoubtedly should seek the support of as many OAS nations as possible. A great bloc to cater to and to easily please is the leftist bloc of Latin America. As previously mentioned, this bloc, led by Venezuela’s Hugo Chávez and the Cuban Castro brothers, would not be happy–and would be politically harmed–if a small country like Honduras resisted being part of their consensus. Why, then, would Insulza be interested in displeasing this leftist bloc if his reelection hinged from its approval?

If Insulza is acting professionally and does not seek to please the leftist bloc, another reason explaining his fervent displeasure with Honduras’ self-determination to keep Zelaya away, is the fact that he himself believes that a leftist Latin America is more just and preferable for citizens. This, too, is plausible and not mutually exclusive with his selfish plans for reelection, as stated above. After all, in Chile, his home country, Insulza has been part of leftist political groups.

The United Nations, like the OAS, wants to pursue a more stable Latin America–at any cost. Little do they know or fully comprehend that by forcing Honduras to install Zelaya back in power they are wreaking greater havoc within our country.

There are less than five months left until Honduras has its general elections. International organizations should not be condemning Honduras for removing a president who very few wanted for violating the Constitution, abusing his presidential power and wanting to make Honduras a socialistic nation that would threaten liberty, democracy and social peace. Hugo Chávez’s socialism, which Zelaya admired and wanted for Honduras, endangers freedom, prosperity and development. Today, Venezuela is a witness of this peril.

c. Foreign news media: There is not much to analyze here. News media worldwide have leftist tendencies. You might wonder why I insist that leftists of all kinds and from all denominations (the Caracas Consensus, the OAS, etc.) are oppressing the Honduran population. Well, it’s because they, in fact, are creating superior chaos within our nation by putting forth their agenda over the will of the Honduran people.

It is no surprise to anyone that news companies (which are more commercially minded than anything else) like CNN, The New York Times, The Boston Globe, ABC News, BBC News and so on, are of liberal/leftist tendencies. In other words, their editorial positions tend to be left of center, which makes these companies consciously biased against most right-wing agendas. Honduras’ agenda of removing Zelaya from office was not a right-wing agenda, per se, but it definitely looked like one.

As Hondurans, we determined our will and acted accordingly. Sure, there are plenty of Zelaya sympathizers, but what the world does not know is that a vast majority of them were directly “bought” by the Zelaya regime, using narco/petrodollars from Venezuela. After Zelaya’s ouster, his disciples fear that their illegal source of income has gone forever–and this is what most Hondurans want. Our new government, led by President Roberto Micheletti, isn’t any better than Zelaya’s in terms of corruption levels and good intentions for the people. However, I am more certain that Micheletti will hand over his interim power to our November-elected President–something that was not too guaranteed under Zelaya’s rule.

The news media, of course, want to sell and make money. There’s nothing wrong with that, but, to who’s expense? It is easier for them to side with Zelaya and the leftist bloc of Latin America, since siding with Honduras and its interim government does not promise much news coverage–other than the tens of thousands of Hondurans who have rallied in favor of our new government and protested against Zelaya.

It’s easier for the news media to sell the image of Honduras as “the savage country that violently ousted its president since the upper class felt threatened by his plans,” than portraying Honduras as “the little country that preferred social peace and freedom, than having a president who pursued illiberal plans for the country.” Selling the image of Honduras as a retrograde nation that uses violence is more profitable for the news media, than portraying Honduras as an encouragement for respect for democracy, due process, the rule of law, social peace, sovereignty and freedom.

Worldwide, news companies have succeeded their goal of making money, but at the expense of 7.5 million Hondurans who all we want is to live in peace. They have also succeeded in misinforming the world and the international organizations about what really happened in Honduras on June 28, 2009. Very few news centers have reported somewhat fairly and properly; among them are The Wall Street Journal, The Economist and Fox News. American right-wing pundits like Rush Limbaugh, Sean Hannity, Glenn Beck and Michael Savage have firmly defended Honduras’ desire for peace and freedom, even if it involved the ouster of a president, who, after all, wanted to turn this nation into a socialist one.


I can go on and on about why the world is opposing Honduras’ self-determination and sovereignty. However, I think this exposition has presented a quick overview of legal, political and economic aspects that are at stake.

In no way should Zelaya’s removal from power be considered a coup d’état, since our constitutional order was never harmed. If anything, it was Manuel Zelaya who threatened this order and planned to do away with our Constitution–which in no way is a legal document that represents a hindrance for a president who respects the rule of law. Nevertheless, Zelaya does not fit such description.


Written by Inti Jordán Martínez Alemán, a Honduran citizen who loves freedom, peace and democracy

If you have a problem with what I write, call me or email me so I can give you my home address and come find me:

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