Published in Diario Las Americas on July 18, 2009

A Judicial and Political View of the Honduran Conflict
By Guillermo Lousteau

The recent events in Honduras and the ensuing crisis they triggered are far from representing a merely local problem. The implications are indeed far reaching, not only if we consider the international reaction but, more significantly, because Honduras has effectively become the battle ground for a confrontation that had been long foreshadowed.

Were the people who had Zelaya removed from office right? Absolutely.

Did they go about it the right way? No, they didn’t, and that’s precisely what prompted their enemies’ response and that of those who seem to be unaware of what’s at stake.

The fact is that Zelaya’s institutional violations and the mistakes made in his removal from office have brought about a situation for which there is no easy way out.

In order to make an accurate analysis of this situation, it is important that we draw a distinction between the political and the judicial aspects involved. This would be like making a distinction between theory and practice, or between legality and legitimacy.

At the moment, the struggle is centered on the political, but, considering what is at stake, it is important that we also look at the judicial and institutional aspects. The reason for this is that when it comes to matters of government, the judicial and the political – theory and practice, legality and legitimacy, if you will – should always go hand in hand.

The Judicial and Institutional Angle

Much of the discussion these days revolves around the idea of a coup, and no doubt there has been an institutional rupture, but the problem lies elsewhere. Rather, we should be concerned with finding out when this rupture took place and who caused it. With each passing day, there is a change of perception that goes from an instinctive initial rejection to a deeper realization of what is really at risk.

Zelaya – following the example of the Presidents of Venezuela, Bolivia and Ecuador – sought to extend his mandate by introducing a constitutional reform that would allow for his reelection, something that the current constitution prohibits. He, nevertheless, went on to declare his intentions of holding a national referendum on the matter.

Not only is the Honduran Constitution categorical in its prohibition of reelection, but it also makes any attempt to incite, promote or support any such intention punishable by law. Moreover, it even prohibits any reform of said articles.

From an institutional perspective, what happened in Honduras can be categorized as a confrontation between the powers of the state. Specifically, it was a confrontation between the judicial and legislative powers (the Supreme Court and Congress), and the executive power vested in the President. Let us keep in mind that in our constitutional systems – albeit presidential – the three branches of government hold equal status, a condition that is kept in check by the appropriately-called system of checks and balances. In this system, the Supreme Court is vested with the power of interpreting the constitution, and as such, its decisions on constitutional matters are final.

The Supreme Court of Honduras determined that former President Zelaya had violated the constitution and its specific provisions relating to presidential reelection and ordered him to desist from attempting to hold a referendum aimed at paving the way for such reform. The Court also endorsed the decision adopted by the head of the armed forces, who refused to comply with the president’s illegal order.

In agreement with the Court’s decision, Congress then resolved to have Zelaya dismissed from office. The armed forces were not responsible for the institutional rupture; they simply carried out an order issued by the Supreme Court, and as such, it makes no sense to speak of a “military coup” against the President.

As it stands, this was an institutional confrontation between branches of government, a confrontation provoked by a president in violation of constitutional statutes, which led the other two branches to intervene in order to protect the constitution.

Within a constitutional system, the solution to a conflict of this nature lies in the hands of the Supreme Court.

The Political Angle

At this point, there is no institutional solution to this conflict, only a political one. However, it is important that we understand the judicial aspects involved as we seek to find an acceptable way out.

It is not hard to see why the world reacted the way it did if we consider Latin America’s poor image in regards to the legitimacy of its institutions and the way Chávez and his friends have taken advantage of this situation. And, let’s not forget the hypocritical endorsement of the OAS and its Secretary General. Fortunately, President Arias’s timely mediation in the matter has helped to deflate the more extremist demands.

Regardless of how the conflict is resolved, and even if it involves Zelaya’s return, we can rest assured that whatever constitutional reform or reelection that was once intended has now no chance of succeeding. That, in itself, is an important triumph for constitutional democracy against those who would seek to assault its institutions in order to perpetuate their hold on power.

The author of this article is a member of the Interamerican Institute for Democracy.