Honduras - Government

The 1982 constitution provides for many of the governmental institutions and processes inherited from previous decades. Throughout the constitution, however, new or changed provisions help distinguish it from previous constitutions, and some analysts consider it the most advanced constitution in Honduran history. The preamble expresses faith in the restoration of the Central American union and emphasizes the rule of law as a means of achieving a just society. The 1982 constitution consists of a preamble and 379 articles. Article 2, which states that sovereignty originates in the people, also includes a provision new to the 1982 constitution that labels the supplanting of popular sovereignty and the usurping of power as "crimes of treason against the fatherland." This provision can be considered an added constitutional protection of representative democracy in a country in which the military has a history of usurping power from elected civilian governments.

The 1982 constitution provides for a strong executive, a unicameral National Congress, and a judiciary appointed by the National Congress. The president is directly elected to a 4-year term by popular vote. The Congress also serves a 4-year term; congressional seats are assigned to the parties' candidates in proportion to the number of votes each party receives in the various departments. The judiciary includes a Supreme Court of Justice (one president and 14 magistrates chosen by Congress for a 7-year term), courts of appeal, and several courts of original jurisdiction--such as labor, tax, and criminal courts. For administrative purposes, Honduras is divided into 18 departments, with 298 mayors and municipal councils selected for 4-year terms. There are no congressional or municipal term limits, but the constitution restricts the president to one term.

The executive branch, headed by a president who is elected by a simple majority, has traditionally dominated the legislative and judicial branches of government. The entire Honduran government apparatus is dependent on the president, who defines or structures policy (with the exception of security policy, which remains in the military's realm) through legislation or policy decrees. However, in an environment of intense rivalry and animosity between the two major parties, in which the president is under pressure to reward his party's supporters, public policy initiatives often do not fare well, as the executive becomes bogged down with satisfying more pressing parochial needs. The executive-centered nature of the Honduran political system has endured whether the head of state has been an elected civilian politician or a general, and that the Honduran state's formal and informal center of authority is the executive.

Some observers maintain that the National Congress gradually became a more effective and independent institution in the decade after the country returned to civilian rule in 1982. Under the presidency of Suazo Cordova the institution appeared only to function as a rubber stamp for the executive branch, with little interest in promoting or creating policy initiatives. Under the Azcona government (1986-90), however, the National Congress became more assertive in its relations with the executive branch—with a more vigorous use of its oversight powers and more active interest in developing legislation. This trend continued under the Callejas presidency.

There was 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.

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 indicated 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.

Many legal experts have also affirmed 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.

On March 23, 2009, President Zelaya issued Executive Decree PCM-05 2009 ordering a public consultation (Consulta Popular, or referendum) throughout the national territory so that the Honduran people could express their opinion as to whether, during the 2009 general elections, a fourth ballot box should be installed at the polling stations to decide whether to convene a National Constituent Assembly for the purpose of drafting a new political Constitution. The same Decree gave a mandate to the National Institute of Statistics (INE) to take charge of the survey.

On May 8, 2009, the Chief Prosecutor, acting as guarantor of the Constitution, filed a law suit before the Court of Administrative Litigation requesting that the Court declare the illegality and nullity of the administrative act carried out by the Executive Branch under the Executive Decree.

On May 26, President Zelaya issued another Executive Decree PCM-19-2009, rescinding the previous Decree and ordering a national poll (under the new title of Encuesta de Opinión Pública) on the same issue to be conducted on June 28, 2009.[13] The next day, the Court of Administrative Litigation issued a ruling ordering the President to suspend the Public Consultation and all acts in its support.

On May 29, the Court of Administrative Litigation clarified its ruling, stating that: "suspension of the consultation ordered on March 23, 2009, includes any other administrative act, whether general or particular, which has been issued or might be issued, whether explicitly or implicitly, by publication or lack thereof in the Official Gazette, which might be conducive to the same administrative act which has been suspended, as any other procedural consultation or question which may be designed to avoid obeying this ruling" [of May 29].

On June 26, the Chief Prosecutor filed a Criminal Complaint before the Supreme Court of Justice, requesting that Zelaya be arrested under an accusation of the crimes of acting against the established form of government, treason against the country, abuse of authority, and usurpation of functions. On the same day, the Supreme Court of Justice unanimously voted to appoint one of its Justices to hear the process in its preparatory and intermediate phases; that Justice carried out the request, issuing an arrest and raid warrant.

Two days later, on June 28, 2009, Zelaya was arrested.After his arrest, on June 28, the military, acting apparently beyond the terms of the arrest warrant, took Zelaya out of the country. Under the Honduran Constitution, “[n]o Honduran may be expatriated nor handed over to the authorities of a foreign State.”

A systematic reading of the different constitutional provisions dealing with the right of Congress to interpret the Constitution (such as Article 205, Section 10 and Article 218, Section 9) also indicates that the Honduran National Congress has the power to interpret the Constitution with general effect. This task is performed through interpretative laws, decrees, or other acts. One may conclude that the National Congress implicitly exercised its power of constitutional interpretation in the case of Zelaya when it decided that its power to “disapprove” the President’s actions encompassed the power to remove him.