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.
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Arguments of the Coup Defenders
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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.
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Impeachment under the Honduran Constitution
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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.
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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.
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Congress Had no Authority to Remove Zelaya
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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.
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Comment
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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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