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The Coup in Honduras: A Fallacy of Legal Reasoning

Octavio Sanchez, a lawyer and the  former presidential adviser (2002-2005) and minister of culture (2005-2006) of Honduras has apparently been chosen by the Honduran sanchezCongress as its head constitutional scholar.  In that capacity, he has been assigned to provide thorough legal reasons of why it is simply “nonsense” for anyone or any country to call, label, or suggest that the recent events in Honduras amounts to a “coup.”  Apparently, Mr. Sanchez came highly recommended by Iraq’s former information minister, Mohammed Saeed al-Sahhaf, also known as Baghdad Bob and Comical Ali.

Before I delve into Mr. Sanchez’s arguments, let’s first look at the definition of a coup.  According to wikipedia, a coup is the “unconstitutional deposition of a legitimate government, by a small group of the State Establishment — usually the military — to replace the deposed government with another, either civil or military.”  According to dictionary.com, a coup is “a sudden and decisive action in politics, esp. one resulting in a change of government illegally or by force.”

With that in mind, let’s look at Mr. Sanchez’s arguments about the absurdity of calling the recent events in Honduras a coup (http://www.csmonitor.com/2009/0702/p09s03-coop.html):

1) In 1982, Honduras adopted a new Constitution that enabled an “orderly return” to democracy;

2) “Soldiers arrested and sent out of the country a Honduran citizen who through his own actions stripped himself of the presidency”;

3) “When Zelaya published [a] decree to initiate an ‘opinion poll’ about the possibility of convening a national assembly, he contravened the unchangeable articles of the Constitution that deal with the prohibition of reelecting a president and of extending his term.  His actions showed intent . . .and triggered a constitutional provision that automatically removed him from office.”  Assemblies are convened to write new constitutions.

4) “Article 239 states that ‘no citizen who has already served as head of the Executive Branch can be president or vice president.”  Thus, anyone who “violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.”  “Immediately” means instantly, as in “no trial required” or no “impeachment needed.”

5) Zelaya was detained in Costa Rica because “Congress needed time to convene and remove him from office.  With him inside the country, that would have been impossible.”

6) “We have decided to stand up and become a country of laws, not men.  From now on, here in Honduras, no one will be above the law.”

Sanchez’s own ‘legal’ arguments, particularly the last one, reveal without any interpretation fallicious reasoning.  In that regard, Sanchez would have fit in nicely as an attorney in the former Bush administration. 

Nonetheless, to begin, and as Sanchez points out, Honduran law clearly allows for a constitutional rewrite, but of course the power to do that does not rest with the president.  Instead, an assembly can only be called through a national referendum approved by Congress.  Further, and in addition to Article 239 (which was included in the 1982 constitution to essentially bar dictators from the past from running again), Article 374 bars any amendments about the length of a presidential term, among other issues.  Under these circumstances, even if a vote was taken pursuant to Zelaya’s “intention,” it would have had no legal weight whatsoever.

One way to look at it is with this legal analogy.  Just say you purchased a gun legally from the store.  Your intention was to murder to death John Smith.  You go to his office and shoot him in the back of the head.  Little did you know, John Smith had already died of natural causes 2 hours before you shot him.  Modern legal reasoning establishes without question that you are not guilty of murder or attempted murder.  Similarly, the Honduran constitution is so rigid (just take a look, for instance, at Article 42, along with Article 239 and Article 374) that any actions by Zelaya as it related to this “Constitutional Assembly” were meaningless and would be afforded no weight.  It was simply impossible, legally and constitutionally, to do what Zelaya had apparently wanted to do (or at least what the Congress thought Zelaya was going to do) with this “Constitutional Assembly.”

But to Sanchez, it doesn’t matter whether something is legally or constitutionally impossible.  What matters is that the letter of the constitution was violated, particularly Article 239 — without taking into consideration at all the intent behind the inclusion of Article 239:  to prevent dictators from running for office.  Back before 1982, Honduras, as with other Latin American countries, had serious dictator problems.

In any event, even if one agrees that Zelaya’s actions were per se unconstitutional, nothing justifies his forcible removal from Honduras to Costa Rica.  According to Sanchez, his exile was necessary because “Congress needed time to convene and remove him from office,” and with Zelaya in Honduras, “that would have been impossible.”  But with this point particularly, Sanchez neglects to mention anything about the constitution and instead seems to obtain these points out of thin air.  So, with that in mind, I decided to quote some parts of the Honduran constitution:

Article 69: “A persons liberty is inviolable and can only be restricted or suspended temporarily through process of law.”

Article 71: “No person can be arrested nor kept incommunicado for more than 24 hours without being placed before a competent authority to be judged. Judicial detention during an investigation must not exceed six consecutive days from the moment that the same is ordered.”

Article 81: “All persons have the right to circulate freely, leave, enter, and remain in national territory. No one can be obligated to change home or residence except in special cases and with those requirements that the Law establishes.”

Wow.  What about these articles, Mr. Sanchez?  I guess they only apply to some people and not others.  At least to me, such a circumstance certainly doesn’t resonate with a country that adheres to the rule of law.

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About Mr. Cheeseburger 9000

I am Mr. Cheeseburger 9000. I like my burgers medium-rare with a side order of french fries.

2 responses to “The Coup in Honduras: A Fallacy of Legal Reasoning

  1. Greg ⋅

    I find this interesting. But what about the constitutional framework that doesn’t say really anything about impeachment? What else were they supposed to do? Let the President snatch the powers away from Congress?

  2. Marvin ⋅

    Greg: Honduran Constitution have and inmediate impeechment “Article 239:no citizen who has already served as head of the Executive Branch can be president or vice president, Thus, anyone who violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.”

    inmediatly, means no need of any procedure, when Zelaya was sent to Costa Rica he was an ordinary citizen.

    To Mr. Cheeseburger 9000, I dont understand why are you mentioned articles 69, 71 and 81.

    69, Zelaya is in liberty, he is traveling around the world

    71, Zelaya was arrested less than 24 hours

    81, Zelaya was not force to change his home or residence

    The fact that Zelaya was ousted was wrong, but for the benefit of Zelaya.

    He has to be arrested and trial, but insted he is free forming a resistence “guerrila”, that is a mistake.

    But the thing that Zelaya is doing in nicaragua is the example of why they make that desision.

    If Zelaya stayed here, he problaly was going to use people to teke him out of jail, and the situatios was going to turn violent, problaly many people would have died including Zelaya.

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