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Report to the Commission on Truth and Reconciliation of Honduras: Constitutional Issues
Abstract
The Spanish version of this paper can be found at http://ssrn.com/abstract=1950411This report has been prepared for the Commission on Truth and Reconciliation of Honduras. It has two aims: first to give a legal and constitutional analysis of the events surrounding the removal of President José Manuel Zelaya Rosales from power in June 2009 (Part IV of the report), and second to make recommendations for constitutional and legal reforms in order to avoid similar happenings in the future (Part V of the report). The report also includes, in Part III, a brief summary of the relevant facts.The events surrounding the June 2009 removal of President Zelaya Rosales from power involved three distinct dangers to democratic governance. The first is the risk that sitting chief executives or other powerful political actors will abuse their power in order to aggrandize themselves or to undermine other democratic institutions. There is a significant risk in many countries that these actors may be able to erode democracy from within. The second is the significant risk that militaries may become involved in political events, and in particular with irregular transfers of power. It is critical that militaries not take on the political role that they once commonly possessed in Latin America. The third is the lack of clarity in constitutional texts about the institutional role that should be played by different institutional actors during a crisis. The constitutional texts of numerous countries neither provide clear guidance as to how different actors should act during a crisis, nor explain how to manage conflicts between these actors.An observer would be most likely to conclude that both President Zelaya Rosales and many of the institutions involved in his removal from power acted illegally and unconstitutionally at certain points. Zelaya Rosales most likely acted unconstitutionally when he proposed the Fourth Urn “consultation” or “poll,” and when he pushed forward with that project despite judicial orders to the contrary. At the same time, Zelaya Rosales was probably not removed from office by a legal process. Congress passed a bill purporting to remove Zelaya Rosales from office, but Congress did not appear to have the constitutional power to remove the President. And members of the Armed Forces acted unconstitutionally when they removed Zelaya Rosales from the country.The three dangers to democracy identified in this case – executive erosion of democratic governance, military intervention in politics, and lack of clarity about the institutional roles of different political actors – are difficult for a constitutional text and for political actors to manage. One of the major problems in the Honduran case is that the constitutional text is vague or silent on several critical points. Most importantly, there is no clear constitutional roadmap laying out the substantive grounds for presidential removal, the process of removal, and the roles of various institutions during the removal process. We therefore highlight potential recommendations to the text. We also recommend reforms aimed at strengthening the rule of law in the country, and particularly the judiciary. Making the judiciary a more effective arbiter during an institutional crisis would lessen the possibility of resort to extraconstitutional processes.
... However, use of abusive constitutionalism for undermining democracy remains largely undetectable for the international law. In fact, the well-articulated abusive constitutionalism is quite deceptive, as it does not appear to be different from the liberal democratic constitution (For instance, Honduras case; see detail in Feldman, et al., 2011). Nonetheless, a close up shows that such type of refiguring of constitution largely aims to curtail democracy. ...
This research concerns the constitutional development in Pakistan with a specific reference to 21st Amendment to the Constitution of Pakistan. It is widely perceived among scholarly and semi-scholarly circles that the tendency of militarys direct intervention in politics; toppling democratically elected government has been declined for the last many decades across the world. According to the new trends, military interferes in the state affairs through indirect means. One of the indirect means includes abusive constitutionalism that involves constitutional amendment and constitutional replacement as mechanisms for constitutional change. The paper explores whether 21st Amendment to Constitution of Pakistan was an abusive constitutionalism that really empowered military to get a strong hold on key policy making areas of national interest during the democratic rule. The research concludes that the 21st Amendment was an abusive constitutionalism as it curtailed civil liberties and fundamental rights of the citizens and hence undermined democracy in Pakistan.
I explore the concept of militant democracy in the context of what appear to be persistent threats to the democratic order. I begin with a reconstruction of the concept with the intention of distinguishing and identifying its historical manifestations. I trace and document two constitutional devices that exhibit the pre-emption and illiberalism that characterizes militant democracy. The first device—party restrictions—is the prototypical example of the concept and is designed to pre-empt extremist intimidation. The second example—hardened term limits—is designed to pre-empt executive ambition. The latter form of bullying may be the most relevant threat, at least in modern Latin America and Africa. In one view, term-limit evasion accelerates a pernicious negative cycle in which constitutional non-compliance begets constitutional weakness, which in turn begets subsequent non-compliance. Such a negative feedback loop is a core problem in law. Militant democracy, the logic of which implies the entrenchment and protection of term limits, could potentially disrupt such negative cycles. The concept could also be useful as an intellectual defense of seemingly non-democratic means of protecting democracy.
This chapter examines the interaction between term limit provisions and the unconstitutional constitutional amendment doctrine in Latin America. It illustrates the varied approaches of courts concerning the validity of attempts to amend presidential term limits. In Colombia, the Constitutional Court intervened to prevent what it saw as an undue easing of term limits (after permitting one round of easing); in Venezuela, Ecuador, and Bolivia, courts generally allowed attempts to ease or eliminate term limit using less demanding rather than more demanding procedural routes; and in Costa Rica, Nicaragua, Honduras, and Bolivia, judiciaries deployed the unconstitutional constitutional amendment doctrine in order to eliminate rather than to protect term limits. After mapping the major constitutional decisions issued on this issue in Latin America in recent years, the authors argue that transnational anchoring holds some promise in clarifying the proper scope of control of constitutional change regarding term limits.
Constitution-Making and Transnational Legal Order - edited by Gregory Shaffer April 2019
The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.
Constitutions are made in almost all transformation of regimes. What are the dangers and the hopes associated with such a process? What can make constitution-making legitimate? The Adventures of the Constituent Power explores the democratic methods by which political communities make their basic law, arguing that the most advanced method developed from Spain and South Africa. The first part of this book focuses on history of the idea of constitution-making, before and during the democratic revolutions of the 18th Century. The second part traces the notion of the constituent power in recent regime transitions that were consciously post-revolutionary, from Spain to South Africa. With the return of revolutions or revolutionary patterns of constitution-making, the book examines the use and potential failure of the new ideas available. The third part then proceeds to consider the type of constitution that is likely to emerge from the post-sovereign process. Presents the history, principles, and logic of a new method of constitution making Illustrates the dangers of sovereign constituent power Employs an interdisciplinary approach to constitutional politics.
Does international law work, and if so, how? In the last twenty years eight regional intergovernmental organizations have adopted treaties requiring all participants to be democracies and specifying sanctions to be leveled against members that cease to be democracies. In this work I examine to what extent these agreements are helping protect the governments of their members from coups. I find that, between 1991 and 2008, states subject to these treaties were less likely to experience attempted coups d’etat, and were less likely to be overthrown when coups were attempted, but that the evidence varies widely in particular cases. Case studies of coups in Honduras, Mali and Thailand support the view that coup leaders do take such treaties into account when choosing coup consolidation tactics such as coup-legitimating rhetoric and selecting members of the coup coalition. All in all, these regimes show promise if not yet dispositive effect. However, these findings cast some doubt on the efficacy of international human rights law more generally. State leaders have a direct self-interest in maintaining an effective coup-prevention regime. If they are no more effective at this than this evidence suggests, they are unlikely to enforce more conventional human rights agreements that less directly impact their own interests.
Advisor: Ross Miller
Ex-President of Congress and Ex-Secretary of Congress, Offices of the Commission on Truth and Reconcilation
- José Alfredo Saavedra
José Alfredo Saavedra, Ex-President of Congress and Ex-Secretary of Congress, Offices
of the Commission on Truth and Reconcilation, 10 a.m.
Magistrate Víctor Manuel Martínez; Magistrate Gustavo Enrique Bustillo Palma; and Silvia Santos, Substitute Magistrate, Offices of the Supreme Court of Justice
- Magistrate José Francisco Ruiz Gaekel
Magistrate José Francisco Ruiz Gaekel; Magistrate Víctor Manuel Martínez; Magistrate
Gustavo Enrique Bustillo Palma; and Silvia Santos, Substitute Magistrate, Offices of the
Supreme Court of Justice, 10:30 a.m.
Commissioner of Human Rights of the Autonomous University of Honduras
- Andrés Pérez
Andrés Pérez, Commissioner of Human Rights of the Autonomous University of
Honduras (UNAH), Offices of the Commision on Truth and Reconciliation, 2 p.m.
Informe: Recursos de Amparo Directamente Relacionados a Eventos Acaecidos a Partir del 28/06/09, at 16-24. These cases 62 See Inter-American Commission, supra note 61. 63 CSJ-1-7_4, Remision del expendiente de la CSJ al Juzgado de Letra Penal
- See Corte Suprema De Justicia
- Sala De
See Corte Suprema de Justicia, Sala de lo Constitucional, Informe: Recursos de Amparo Directamente
Relacionados a Eventos Acaecidos a Partir del 28/06/09, at 16-24.
These cases
62 See Inter-American Commission, supra note 61.
63 CSJ-1-7_4, Remision del expendiente de la CSJ al Juzgado de Letra Penal.
64 CSJ-1-7_5, Requerimiento Contra Jose Manuel Zelaya Rosales y otros, at 100-03.
Informe: Registro y Seguimiento de Procesos Penales, a Nivel Nacional, Relacionados con los Hechos Acaecidos Antes, Durante, y Despues del 28 de Junio de
- Poder Programa De Derechos Humanos
- Judicial
Programa de Derechos Humanos, Poder Judicial, "Informe: Registro y Seguimiento de Procesos
Penales, a Nivel Nacional, Relacionados con los Hechos Acaecidos Antes, Durante, y Despues del 28 de
Junio de 2009," [Report regarding the Status of the Habeas Corpus, Amparo, and Unconstitutionality
Actions related to the Events during and after June 28, 2009] at 4 (December 2010).
66 CSJ-1-11_2, Presentacion del requerimiento Fiscal y otros.
Ex-President of the Supreme Court of Justice; General Gerber Ballardo Inestroza Mimbreño, Auditor for the Armed Forces
- Vilma Morales
Vilma Morales, Ex-President of the Supreme Court of Justice; General Gerber Ballardo
Inestroza Mimbreño, Auditor for the Armed Forces, Office of the Commission on Truth
and Reconciliation, 8 a.m.
President of the Supreme Court, together with: Magistrate Rosalinda Cruz de Williams, President of the Constitutional Chamber
- Magistrate Jorge Rivera Avilés
Magistrate Jorge Rivera Avilés, President of the Supreme Court, together with:
Magistrate Rosalinda Cruz de Williams, President of the Constitutional Chamber;
ex-member of the Tegucigalpa-San José Accords, representative of Ex-President José Manuel Zelaya Rosales; Arístides Mejía, Ex-Minister of Defense and Ex-Acting Vicepresident of the Republic
- Rodil Rivera
Rodil Rivera Rodil, ex-member of the Tegucigalpa-San José Accords, representative of
Ex-President José Manuel Zelaya Rosales; Arístides Mejía, Ex-Minister of Defense and
Ex-Acting Vicepresident of the Republic; Milton Jiménez Puerto, Ex-Chancellor and ExPresident of the Commission on Banking and Insurance, Offices of the Commission on
Truth and Reconciliation, 3 p.m.
Minister of Justice and Human Rights, Offices of the Commission on Truth and Reconciliation
- Ana Pineda
Ana Pineda, Minister of Justice and Human Rights, Offices of the Commission on Truth
and Reconciliation, 12 p.m.
.
President of the Constitutional Commission of the National Congress; German Leitzelar Vidaurreta, Deputy to the National Congress
- Oswaldo Ramos Soto
Oswaldo Ramos Soto, President of the Constitutional Commission of the National
Congress; German Leitzelar Vidaurreta, Deputy to the National Congress; Roberto
Herrera Cáceres, writer and Professor of Law, Autonomous University of Honduras
(UNAH), Offices of the Commission on Truth and Reconciliation, 4 p.m.