HONDURAS: LAWYERS QUESTION BASIS OF ZELAYA OUSTER
Written by Jennifer Moore
Friday, 25 September 2009
Since June 28 when the Honduran military shot their way through the backdoor of President Zelaya’s private residence, kidnapping and forcibly expatriating him to Costa Rica, the de facto regime has maintained that Zelaya’s removal was a constitutional transfer of power. For its part, the Obama Administration has condemned the ouster, but stopped short of defining the events as a military coup. By US law, this would require the suspension of the majority of aid to the Central American country.
However, a preliminary report by an international delegation of lawyers that visited Honduras in late August affirms that a military coup is what took place. The report considers the lack of an independent judiciary in Honduras as part of the context in which this occurred and points to powerful economic and political groups opposed to social advances promoted by President Zelaya as the driving force behind the coup.
The report, drafted by members of the American Association of Jurists, the National Lawyers Guild, the International Association of Democratic Lawyers and the International Association Against Torture, further states that the military overthrow was a clear violation of Honduras’ 1982 Political Constitution. Among various constitutional articles that the report claims were violated includes Article 102, which states: “No Honduran may be expatriated nor delivered by the authorities to a foreign state.” 
Building upon observations pertaining to human rights violations detailed in the report, the National Lawyers Guild released a press bulletin on Tuesday concerning the de facto government’s most recent abuses since Zelaya arrived at the Brazilian Embassy in Tegucigalpa on Monday. Coup leader Roberto Micheletti used Zelaya’s reutrn as a pretext to unleash a new wave of aggression by his security forces against Hondurans opposed to the coup. The Guild also expressed special concern for threats to the life of the democratically-elected president.
Zelaya’s arrival, it concludes, should motivate the US to denounce the violence, further isolate the de facto regime and “no longer avoid officially declaring a military coup d’etat.” The Guild also urges UN bodies, including the UN Security Council and the UN Economic and Social Council, to “initiate proceedings for an economic blockade” and to “consider deploying a peacekeeping mission to facilitate the return to power of the legitimate constitutionally elected government.” The UN already announced Wednesday that it would withdraw all support for upcoming elections on November 29th. The UN Security Council is also anticipated to make an announcement this week.
Dangerous Territory: Constitutional Reform
The most immediate trigger for the coup was a non-binding, national opinion poll scheduled for June 28. It was decreed by Zelaya under the Citizens’ Participation Law, notes the delegation report, and would have taken place the same day as he was ousted. Hondurans would have answered the following question: “Are you in agreement that during the 2009 general elections that a fourth ballot box be installed in which the people will decide whether to strike a Constituent Assembly? Yes/No.”
According to the report, the opinion poll was a “determining factor” in the coup. They explain that “powerful economic and political sectors including those who control the Honduran media vehemently opposed the move and recurred to the courts and the legislature to put in motion a very accelerated lawsuit, lacking assurances of due process in order to justify actions without grounds against President Zelaya, who they intended to try.” Other reforms Zelaya was enacting which enraged to the business class included the rise in the minimum wage, the exclusion of intermediaries from state fuels purchases and the decision to purchase oil from the cheapest provider – the Venezuelan oil company Petrocaribe.
The speed with which the Supreme Court processed legal measures to block the survey raised suspicions among the delegation. “In contrast to the speed with which they acted against the constitutionally elected President Zelaya, [the Supreme Court] has not made any decisions with regard to any legal process since then – up until this report was drafted [on September 12th] – to sanction those responsible for violations of the constitution and legal order [as a result of the coup].”
Furthermore, one delegation member comments, “the de facto government clearly avoided using its legal power to arrest Zelaya when he tried to re-enter Honduras, compounding the violation of rule of law and furthering the appearance that there is no basis for claims that Zelaya committed crimes justifying his removal from office and claims that he lacks support within Honduras.”
Concerns over weaknesses in Honduras’ judiciary have been raised before. The Inter American Human Rights Commission has criticized the country for lack of an independent and efficient judiciary, notes another member of the delegation. Furthermore, a report from Freedom House states, “The judicial branch of government in Honduras is subject to intervention and influence by both the elected branches and wealthy private interests.”  The US State Department profile of Honduras also mentions that “Although the constitution and law provide for an independent judiciary, the judicial system was poorly funded and staffed, inadequately equipped, often ineffective, and subject to patronage, corruption, and political influence.” 
Also worrisome to the delegation was the contrast found between the ease with which Zelaya’s ouster was executed and the delays in addressing civil society requests for habeas corpus and constitutional protection as a result of police and military excesses over the last three months.
Human Rights Commissioner Compromised
Human rights abuses have escalated again this week since Zelaya’s arrival on Monday. The de facto regime has enforced a continuing military curfew, while state security forces have arbitrarily detained, beaten and even killed people. The security of the Brazilian Embassy where Zelaya is staying has also been threatened. The international group of lawyers raises deep concerns about the significant rise in human rights violations since June 28 and observes the lack of attention to such grievances by state institutions such as the Office of the Public Prosecutor and the Human Rights Commissioner’s Office.
While visiting Honduras, the delegation received complaints about violations of political and civil rights, as well as economic, social and cultural rights. Among those they report are violations of the right to life, physical integrity, liberty of expression, access to information, the freedom of association and due legal process. They also received testimonies concerning cruel and degrading treatment against women and abusive treatment of minors, including forced military recruitment among poor sectors of the population.
Additionally, they note at least four deaths since the coup, although other estimates were up to about 11 at the start of this week.  In this context, they point out, “A lack of will on the part of the public attorney’s office to immediately and diligently investigate what took place in order to bring those responsible to justice, which contrasts with the swiftness and efficiency with which governmental organisms processed claims against the deposed president.”
They also concluded that many people have avoided presenting complaints to the National Human Rights Commissioner’s office given that the Commissioner is an open supporter of the coup. Instead people were forced to file reports to civil society organizations such as the Committee of Relatives of the Detained and Disappeared of Honduras (COFADEH) because of a lack of confidence that their cases would be properly addressed.
Seeing such weaknesses in human rights protection by the state since the coup, the lawyers’ report recommends that “organisms such as the National Human Rights Commissioner, whose mandate is specifically to protect human rights, be led by persons committed to the defense of human rights and not by those who have declared themselves in favor of the coup, such as is the case with Commissioner Dr. Ramón Custodio.”
Custodio was quoted by Europa Press this week openly criticizing international human rights delegations, accusing them of having political interests in trying to make a victim out of Honduras and stating that they, including participants of an upcoming mission from the UN, “are looking for a mechanism to once again aggrieve the Honduran people.” 
Serious human rights violations and the use of excessive force by state forces have been documented and denounced in recent months by the International Federation of Human Rights, the Inter American Human Rights Commission (an autonomous body of the Organization of American States), Amnesty International and now Human Rights Watch (HRW). Yesterday, the Spanish news agency EFE reported that HRW “asked the OAS to demand the government of Robert Micheletti to desist in applying force against protesters and to guarantee fundamental human rights.” They noted one confirmed death this week and at least 150 arbitrary detentions. A HRW representative also mentioned four unconfirmed deaths as a result of police violence in Tegucigalpa. 
Whereas coup leaders lacked constitutional grounds upon which to oust Zelaya, those in Honduras who oppose the coup do have the right to insurrection. Article 3 of their 1982 Political Constitution states, “No one owes obedience to a government which usurps power nor those who assume public functions or employment through the use of arms or through means or processes that break or fail to recognize what the constitution and laws establish. The verified acts of such authorities are null. The people [of this country] have the right to recur to insurrection in defence of constitutional order.”
The pro-democracy movement, perhaps the least anticipated outcome of the coup, has now managed to sustain itself for almost 90 days.
The World’s Turn
Finally, members of the American Association of Jurists, the National Lawyer’s Guild, the International Association of Democratic Lawyers and the International Association against Torture conclude their report by calling upon the international community to echo efforts toward the restoration of democratic order in Honduras, and ultimately the region, by concertedly promoting the unconditional return of President Manuel Zelaya.
Indicating the need for ongoing human rights vigilance and accompaniment in the current period, they insist that upcoming elections not be recognized and that much stronger economic sanctions be implemented.
They further add that resulting abuses “cannot remain in impunity” and recommend that an international tribunal be established to try those responsible. Furthermore, given the brutality with which state forces have come down on Honduran people in recent months, they propose that reforms be considered “to assure the subordination of the armed forces to civil society, including that proposals that could result in the elimination of the armed forces and their permanent abolition be studied such as has taken place in Panama and Costa Rica.”
1. For news and updates from the delegation: http://www.nlginternational.org
2. “ONU suspende asistencia a elecciones en Honduras” Prensa Latina, 23 September 2009; http://www.prensa-latina.cu/index.php?option=com_content&task=view&id=119683&Itemid=1
3. “Consejo de Seguridad de la ONU se pronunciara sobre el Golpe en Honduras” Pulsar, 23 September 2009; http://www.agenciapulsar.org/nota.php?id=15869
4. “Countries at the Crossroads 2007: Honduras” Freedom House; http://www.unhcr.org/refworld/country,,FREEHOU,,HND,4562d94e2,47386925c,0.html
6. “The Road to Zelaya’s Return” Ben Dangl, Truthout, 22 September 2009; http://www.truthout.org/092209A
7. “Gobierno ‘de facto’ denuncia que los relatores de DDHH de la ONU ‘buscan un instrumento para agredir'” Europa Press 19 September 2009; http://www.europapress.es/latam/honduras/noticia-gobierno-facto-denuncia-relatores-ddhh-onu-buscan-instrumento-agredir-20090919235625.html
8. “Human Rights Watch pide a la OEA que exija el cese de la represion en Honduras” EFE 23 September 2009; http://es.noticias.yahoo.com/9/20090924/twl-human-rights-watch-pide-a-la-oea-que-e1e34ad.html