Friday, July 03, 2009

"We Had To Destroy The Constitution In Order to Save It"


With Obama's criticism of the military coup in Honduras, a public relations wave has been launched to try to reinvent the coup as a proper exercise of judicial and military power. Although it's a bit colorful, let's turn to Johann Hari for a description of the coup itself:
On Sunday morning, a battalion of soldiers rammed their way into the Presidential Palace in Honduras. They surrounded the bed where the democratically elected President, Manuel Zelaya, was sleeping, and jabbed their machine guns to his chest. They ordered him to get up and marched him on to a military plane. They dumped him in his pyjamas on a landing strip in Costa Rica and told him never to return to the country that freely chose him as their head of state.

Back home, the generals locked down the phone networks, the internet and international TV channels, and announced their people were in charge now. Only sweet, empty music plays on the radio. Government ministers have been arrested and beaten. If you leave your home after 9pm, the population have been told, you risk being shot. Tanks and tear gas are ranged against the protesters who have thronged on to the streets.
What brought this about? Let's turn to an apologist for the coup, Octavio Sánchez.
These are the facts: On June 26, President Zelaya issued a decree ordering all government employees to take part in the "Public Opinion Poll to convene a National Constitutional Assembly." In doing so, Zelaya triggered a constitutional provision that automatically removed him from office.

Constitutional assemblies are convened to write new constitutions. When Zelaya published that 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.

Our Constitution takes such intent seriously. According to Article 239: "No citizen who has already served as head of the Executive Branch can be President or Vice-President. Whoever violates this law or proposes its reform [emphasis added], 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."

Notice that the article speaks about intent and that it also says "immediately" – as in "instant," as in "no trial required," as in "no impeachment needed."
Except nowhere in those "facts" is there a contention that Zelaya advocated a change in his term limits. Sure, we can assume that to have been his goal, but that creates two problems for his opponents: First, if all it takes to remove you from office and have you arrested at gunpoint is the belief that you intend to advocate a change in constitutional term limits as part of a constitutional convention, anybody's fair game. Why couldn't Zelaya have made a similar accusation against the Supreme Court, and removed all of its judges from office? Would he be harping on the term "immediately" or the absence of any need for trial or impeachment, had Zelaya been the one abusing that constitutional language? Second, does it follow that any call for a constitutional convention justifies the removal of an elected official from office, "just in case" they're secretly planning to amend that constitutional language?

Further, if we're going to be told that this is normal constitutional process, not a coup d'état, where in the Constitution can I find any support for this process? If I look at the constitution and search for any authority by which the Supreme Court can exercise any control over the armed forces, what will I find? Article 245, giving the President some authority over the armed forces, yes, that's there. But I see nothing giving the Supreme Court any authority to issue orders to the Armed Forces.

Imagine that the 22nd Amendment of the U.S. Constitution had a similar provision, the President (be it G.W. Bush, Bill Clinton or Ronald Reagan) was calling for a constitutional convention, and it was feared by some in government that his actual goal was to repeal the 22nd Amendment. Would it be constitutionally defensible for the Supreme Court to instruct the U.S. Armed Forces to impound ballots to be used in a referendum testing public support for a constitutional convention? To order the military to arrest the President? To send him into exile without impeachment or trial? It would be an appalling overreach of power, unsupported by law or constitution. While the Constitution of Honduras is far less limiting of the military than is U.S. law, and I grant my Spanish is poor, I don't see any constitutional authority for the issuance of orders by the Supreme Court to the military. To the extent that it's not prohibited, I don't see anything that would compel the military to carry out such an order. (But let's be honest here - this process was collusive between the Supreme Court and the military.)

Sánchez also claims,
The Supreme Court and the attorney general ordered Zelaya's arrest for disobeying several court orders compelling him to obey the Constitution. He was detained and taken to Costa Rica. Why? Congress needed time to convene and remove him from office. With him inside the country that would have been impossible. This decision was taken by the 123 (of the 128) members of Congress present that day.
The argument, basically, is that it would have been impossible to follow constitutional process with Zelaya in the country, so they had to orchestrate his removal from office and exile so that they could follow proper procedure (albeit a trial in absentia, and again Sánchez does me no favors by failiing to point to any constitutional language making that proper, either). Except Sánchez just got through telling us that neither impeachment nor trial are required. A little internal consistency, please?

A Honduran Supreme Court Judge, Rosalinda Cruz, also attempts to defend the coup:
“The only thing the armed forces did was carry out an arrest order,” Cruz, 55, said in a telephone interview from the capital, Tegucigalpa. “There’s no doubt he was preparing his own coup by conspiring to shut down the congress and courts.”
Okay... And the arrest order was issued by the Supreme Court on what constitutional authority? And what trial was held that removed any doubt as to Zelaya's intentions in pushing ahead with a referendum? Let's take step back, returning to Hari - this case involves a type of power struggle pretty typical in the developing world,
In 2005, Zelaya ran promising to help the country's poor majority – and he kept his word. He increased the minimum wage by 60 per cent, saying sweatshops were no longer acceptable and "the rich must pay their share".

The tiny elite at the top – who own 45 per cent of the country's wealth – are horrified. They are used to having Honduras run by them, for them. . . .

Honduras has a constitution that was drawn up in 1982, by the oligarchy, under supervision from the outgoing military dictatorship. It states that the President can only serve only one term, while the military remains permanent and "independent" – in order to ensure they remain the real power in the land.

Zelaya believed this was a block on democracy, and proposed a referendum to see if the people wanted to elect a constituent assembly to draw up a new constitution. It could curtail the power of the military, and perhaps allow the President to run for re-election. The Supreme Court, however, ruled that it is unconstitutional to hold a binding referendum within a year of a presidential election. So Zelaya proposed holding a non-binding referendum instead, just to gauge public opinion. This was perfectly legal. The military – terrified of the verdict of the people – then marched in with their guns.
Columnist Edward Schumacher-Matos takes us into the dark territory of "We had to destroy the constitution in order to save it":
Honduras is guilty of two sins: impatience and size. The rest of the world is committing two more: hubris and hypocrisy.

It is now clear that if the Honduran Supreme Court or Congress had used legal means such as impeachment before asking the army to remove President Manuel Zelaya, we would be calling events there a constitutional crisis rather than a coup d'etat.
Is that supposed to be an insight? A defense? It goes without saying that, had Zelaya's opponents acted within the confines of the law and constitution, they would be working through an uncomfortable constitutional crisis. It also goes without saying that they instead chose a coup. You can find a basis for claiming hypocrisy in pretty much any form of international condemnation over any issue. That doesn't make it hubristic to criticize the opponents of an elected leader for choosing a coup over constitutional process. And with all due respect for the west's spotty support of democracy (historically taking the form of, "We'll support it as long as the correct people win"), the defenders of the coup keep insisting that they believe in law, democracy and constitutional process. It takes some chutzpah for them and their defenders to accuse others of hypocrisy for asking, "Then why didn't you live up to those words and ideals?"

Perhaps Schumacher-Matos doesn't see himself as a hypocrite because he argues, "democracy is not the same as legitimacy", quoting a graduate student in support of his argument:
Which brings us back to Honduras. Brodi Kemp, a researcher at Harvard's Safra Foundation Center for Ethics, says: "You could argue that Zelaya gave up his claim to moral legitimacy when he went outside the constitution. If you accept that, then what do the other political actors do? . . . Sometimes an act is legitimate even though it proceeded illegitimately."
Kemp offers an interesting thought exercise, but it's not one that truly supports the coup. You don't have to think very hard to realize that you're reducing government to a game of rock-paper-scissors. Rather than following the constitution, you attempt to delegitimize the other branches of government and use their "illegitimacy" as an excuse for extra-constitutional action against them. It takes us back to the earlier question - what if Zelaya had ordered the arrest of the Supreme Court? What, for that matter, if the military had received competing orders for arrest - where's the "legitimacy" in having the military choose between following the President's arrest order or the Supreme Court's? Let's take a look at how a Supreme Court Judge, Rosalinda Cruz, defends her institution's actions:
“The only thing the armed forces did was carry out an arrest order,” Cruz, 55, said in a telephone interview from the capital, Tegucigalpa. “There’s no doubt he was preparing his own coup by conspiring to shut down the congress and courts.”
Did she manage to make that entire statement with a straight face? The military didn't execute an arrest order - they did arrest Zelaya, but they released him into exile. Is she saying that's what the Supreme Court ordered? Where's the constitutional support for any such order? Yet if that's not what the Supreme Court ordered, her first statement is false. As for there being "no doubt" that Zelaya was planning a coup of his own... rock beats scissors? Leaving aside the question of whether there's evidence for the contention, or whether a Supreme Court Judge should be passing such strong judgment on an issue that has not come before the court, "We had to throw our own coup first" is a poor defense of either the constitution or the institutions of government.

Now I'll admit, the critics of Zelaya (and Hugo Chávez) have a point - Chávez used his public support to achieve by direct democracy what he could not achieve through the standard legislative process, and Zelaya appeared eager to follow that same model. Schumacher-Matos elaborates,
The threat growing in Latin America, Asia and Africa, according to Freedom House, is not dictatorship but what political theorists call illiberal democracy. Venezuela is the poster case in which a president, Hugo Chávez, is democratically elected and then goes about, through democratic referendums and Congress, constraining freedom by changing laws and institutions. Chávez and others like him create the "tyranny of the majority" that theorists behind the American Constitution warned was the weakness of democracy by itself, without constitutional liberalism protecting the rights of the individual.
The last thing I want to do is suggest that it would be a good thing for nations in the developing world to follow the political and constitutional model of the State of California.

Schumacher-Matos argues,
Polls and the tepid demonstrations in Zelaya's favor indicate that he has little popular support. That is not reason enough for a coup, but the many factors suggest that while his removal should have been better handled, some humility is called for in helping Honduras work through a constitutional crisis.
Actually, if Schumacher-Matos is correct on the first point, he's dead wrong on the second. If Zelaya's referendum was destined for failure, there was no need for the Supreme Court to order his arrest for "treason", let alone wink at his being exiled instead of being brought to justice. If there's little opposition to Zelaya's removal from office, there's absolutely no merit to Sánchez's claim that it was "necessary" to expel him from the country under the guise of an "arrest warrant" in order to even commence the legal process of impeachment or removal. What a lack of support would do is establish the case for letting the election take its course, letting Zelaya lose, and then having a regularly scheduled presidential election to choose his successor.

A case can be made for the removal of any elected leader in the world. It's a rare political leader whose actions don't result in criticisms that they're making power grabs, trying to weaken opposition parties, trying to manipulate the legal and political process to help themeselves or their parties in future elections.... As should go without saying, some of the cases are far more compelling than others.

What opponents of Zelaya should be doing is trying to make the case for why his actions were extreme and unusual, threatening the nation's democratic traditions. And based upon that, they should be further explaining why a coup was necessary to protect the democratic process. If, in the manner of Schumacher-Matos, their tack is instead to belittle democracy, they undermine their entire case. If democracy is not that important, how can you possibly justify a coup by alleging that it was a necessary move to defend, of all things, term limits.

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