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Various news reports depict the Honduran military’s expulsion of the country’s president as a “coup."1 President Obama echoed this portrayal, adding that the “coup” was “not legal,” and also expressed his dismay that “[we are moving] backwards into the era in which . . . military coups [are used] as a means of political transition."2 The Secretary-General of the Organization of American States (OAS) chimed in, asserting that “military coups will not be accepted. We thought we were in an era when military coups were no longer possible in this hemisphere.”3 The Presidency of the European Union condemned the actions of the Honduran military as a “violation of [the] constitutional order of Honduras.”4 The United Nations General Assembly, for its part, claimed the military’s actions “interrupted the democratic and constitutional order and the legitimate exercise of power in Honduras."5 It appears, therefore, that an international consensus exists: an illegal military coup has taken place in Honduras--global media outlets, the United States, the OAS, the EU, and the UN, unanimously agree. Oddly, however, even a casual glance beneath the news headlines and government one-liners does not appear to support a conclusion that an illegal coup has taken place in Honduras. Our first clue is that the last two military coups in Honduras were initiated by the military itself, and actually resulted in governance by military leaders (Armed Forces leader Oswaldo Lopez Arelano from 1963 to 1975, and a group of military officers from 1975 to 1981).6 On the other hand, today’s alleged “military coup” was not executed on the initiative of the military, but rather by a Supreme Court ruling combined with the approval of the Honduras legislature, and, notably, has resulted in a provisional government led by civilian politicians, not military leaders. Consequently, if Honduras has just suffered a military coup, it is of quite a different nature than the previous two. Accordingly, a deeper analysis into the facts and law is in order. Despite a Supreme Court ruling that the Honduran president may not call a referendum to amend the constitution to extend presidential term limits, President Zelaya of Honduras broke into a military installation to retrieve referendum ballots--which were shipped to Honduras from Venezuela--and “had his supporters distribute them in defiance of the Supreme Court’s order.”7 Subsequently, the attorney general of Honduras announced that he would enforce the Supreme Court’s ruling; the military then arrested Zelaya and removed him from the country for unconstitutionally violating the Supreme Court’s order.8 Despite intense international pressure on Honduras to reinstate Zelaya as the president, the new interim president, Roberto Micheletti, declared he would not resign “no matter how intense the international pressure becomes,” because “I [am not] violat[ing] the laws of the country.”9 Micheletti added that “it’s not about sympathy, it’s not about being a martyr, but simply that we are following the letter of the law[,] which he [Zelaya] did not respect.”10 Noting that Zelaya “committed crimes against the constitution and the law,” Micheletti explained that Zelaya “can no longer return to the presidency of the republic . . . .”11 Finally, the provisional government of Honduras announced that Zelaya would be arrested if he returns to Honduras.12 Article 1 of the Honduras constitution provides that Honduras is a republic governed by the rule of law. Article 2 declares that the power of the state emanates from the sovereignty of the people, that government organs are the people’s proxies, and that to supplant the people’s sovereignty (and, by extension, legitimate government institutions) is treason. Additionally, Article 3 recognizes that the Honduran people possess the right to resort to insurrection in defense of constitutional order. Article 4 of the constitution provides that alternation (alterabilidad) in the presidency is mandatory (obligatoria), and also that a violation of this provision constitutes treason against the nation; simply put, no dictators. Meanwhile, Article 237 states that the presidential term is four years. Thus, the constitution plainly requires there to be a new president every four years. What is more, while Article 373 provides for the lawful amendment of the constitution, Article 274 declares, among other things, that the constitutional provisions relating to the presidential term cannot, in any circumstances, be altered. This means the constitution unequivocally precludes the modification of presidential term limits, even by constitutional amendment. In a word, the president is elected to one four year term, and there are no procedures or circumstances under which this rule may constitutionally be altered--period. Finally, Article 183 vests the Supreme Court with the power to interpret the constitution, while Article 272 commands the armed forces to preserve “the rule of the Constitution,” as well as “the [constitutional] principle[] of . . . alternation in the presidency of the Republic.” Here, the Supreme Court, pursuant to its prerogative to determine the constitutionality of acts of government under Articles 183 and 316, held that President Zelaya’s proposed referendum was unconstitutional. This ruling makes sense, because under Articles 4, 237, 274, and 373, there is no constitutional way to alter the rule that a president may only serve one four-year term. Therefore, Zelaya’s pursuit of the referendum after the Supreme Court’s ruling violated the constitution, in contravention of Article 1’s declaration that Honduras is governed by the rule of law. Moreover, Zelaya’s conduct supplanted the sovereignty of the people, because he undermined the Supreme Court, an organ of government that exercises power on behalf of the people under Article 2. So, on this analysis, Zelaya is guilty of treason under the Honduras Constitution, since Article 2 provides that to undermine the people’s sovereignty is treason, and since Article 4 provides that to violate the rule that alternation of the president is mandatory is also treason. The case against Zelaya is even stronger in light of Article 272. First, Article 272 generally requires the military to uphold the constitution, and Zelaya violated the constitution by going against the Supreme Court’s ruling; second, Article 272 specifically requires the military to enforce the principle of “alternation in the presidency of the Republic,” which is the precise principle Zelaya aimed to contravene. Accordingly, it would be difficult to claim, as President Obama has, that the military’s arrest of Zelaya was outside the scope of the military's constitutional powers and duties. It is difficult to comprehend the concurrent positions of the global media, the United States, the OAS, the EU, and the UN--that an illegal coup has taken place in Honduras. In remarks addressing the situation in Honduras, for instance, Secretary of State Clinton unequivocally stressed the importance of “support[ing] and defend[ing] democracy and constitutional order in our hemisphere,” yet came out in support of Zelaya--whose unlawful behavior was aimed at undermining a democratic constitutional order--and against the judicial and legislative branches of the Honduran government--whose conduct was aimed at preserving a democratic constitutional order.13 Making the international community’s position even more difficult to comprehend, in response to a reporter’s question--“isn’t the U.S. in an uncomfortable position . . . , because you’re invoking democratic norms to restore a president who some would argue was taking illegal steps to stay in office?”--Secretary Clinton conceded that, in a democratic society, “there are certain orders by independent judicial officials [like members of the Supreme Court] that should be followed and the like,” but weakly justified the United States’ position supporting Zelaya--who defied “orders by independent judicial officials”--on the grounds that “arresting and expelling the president” constitutes an “extraordinary step.”14 It is difficult to interpret Clinton’s response as meaning anything other than that, even though Zelaya violated the constitutional orders of the Honduran Supreme Court, his violation is outweighed in terms of severity and criminal culpability, according to “democratic norms,” by the government’s expulsion of Zelaya. But how can the international community reconcile its professed values of democracy and constitutional order with its simultaneous conclusion that the “extraordinary” step of expelling a president who attempts to subvert the democratic constitutional order of his country outweighs that president’s attempt to subvert the democratic constitutional order of his country?
2. “Obama says Honduras coup illegal,” BBC News (June 29, 2009), available at http://news.bbc.co.uk/2/hi/americas/8125292.stm (video clip of Obama).
3. Will Weissert, “Honduran coup leader to AP: Zelaya won’t return,” My Way News (July 1, 2009), available at http://apnews.myway.com/article/20090701/D995KPKO1.html.
4. “EU Presidency Declaration on Honduras” (June 29, 2009), available at http://www.eu-un.europa.eu/articles/en/article_8834_en.htm.
5. “General Assembly condemns coup in Honduras,” UN News Centre (June 30, 2009), available at http://www.un.org/apps/news/story.asp?NewsID=31314&Cr=honduras&Cr1=.
6. Thomas E. Skidmore & Peter H. Smith, Modern Latin America (5th ed.), at 340 (2001).
7. Mary Anastasia O’Grady, “Honduras Defends its Democracy,” Wall Street Journal (June 30, 2009), available at http://online.wsj.com/article/SB124623220955866301.html.
8. Id.
9. Will Weissert, “Honduran coup leader to AP: Zelaya won’t return,” My Way News (July 1, 2009), available at http://apnews.myway.com/article/20090701/D995KPKO1.html.
10. Id. (emphasis added).
11. Id.
12. “Zelaya faces arrest in Honduras,” United Press International (June 30, 2009), available at http://www.upi.com/Top_News/2009/06/30/Zelaya-faces-arrest-in-Honduras/UPI-23501246396570/.
13. Hillary Rodham Clinton, “Remarks at the Top of the Daily Press Briefing,” U.S. Dep’t of State (June 29, 2009), available at http://www.state.gov/secretary/rm/2009a/06/125487.htm.
14. Id.
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