• The Law Library of Congress’s Directorate of Legal Research has issued what is, to date, the only objective legal analysis of the Honduran constitutional crisis. Its conclusion?

  Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.

  In other words: it wasn’t a coup. The report proceeds through a series of questions: [1] Does the Honduran constitution empower the Congress and / or the judiciary to remove a president? (Yes); [2] Did the Honduran Supreme Court have the legal authority to hear a case against the president? (Yes); [3] Did the Honduran Supreme Court have the legal authority to order the military to carry out an arrest warrant against the president? (Yes); [4] Did the Honduran Congress have legal authority to remove a president from office? (Yes); [5] Was Zelaya removed from office in accordance with these legal rules? (Yes).

  The crux of the report, at least with regard to Zelaya’s actual removal from office, is that the Honduran Constitution empowers the Congress to “approve or disapprove” executive conduct, and that the Congress had the authority to interpret the word “disapprove” to include the power of removal. That’s a controversial interpretation, to be sure; but as the report notes, the Constitution vests Congress with that interpretative power. There will inevitably be many outside of Honduras, and not a few within, who will claim that the interpretation was flawed. But the Honduran Constitution clearly empowers Congress to make the judgment call it made. Imposing any other interpretation clearly undermines the rule of law.

  Finally, the report notes that Zelaya’s forcible removal from Honduras likely violated the Constitution, which provides that “[n]o Honduran may be expatriated nor handed over to the authorities of a foreign State.” But as I’ve noted elsewhere, the fact that Zelaya’s removal from Honduras was illegal does not mean that Zelaya’s removal from office was illegal. It wasn’t.

• In the wake of the Law Library of Congress report, opinions may finally be shifting. Writing in The New Republic—a traditionally liberal magazine—James Kirchick notes that “the report paints Zelaya’s removal as remarkably orderly and legalistic, especially in a region where the rule of law is so tenuous.” As he notes, this leaves the Obama administration (which has steadily escalated its condemnation of the removal and its demands for Zelaya’s return to office) “squarely contradicted by the only known official analysis of the constitutional issues involved.” Kirchick offers an interesting explanation for the administration’s stubbornness:
  

  The day after Zelaya was put on a plane to Costa Rica, Obama condemned the move as illegal, saying that “it would be a terrible precedent if we start moving backwards into the era in which we are seeing military coups as a means of political transition rather than democratic elections. We don’t want to go back to a dark past.” His invocation of U.S. support for armed opposition movements fighting communist insurgencies in Latin America during the Cold War is one of numerous apologies for past American actions that he has offered since taking office, a tactic which seems to be a core tenant of his diplomatic strategy.

  That may or may not be Obama’s motivation; but in any case, as Kirchick rights, it seems clearer by the day that “U.S. policy has become a mistake in search of a rationale.”

• The latest manifestation of that mistake is the American threat not to recognize the outcome of the upcoming presidential election—notwithstanding the fact that the election is a contest between candidates chosen while Zelaya was in office and administered by an electoral commission similarly assembled before Zelaya’s ouster. In short, the Obama administration has decided to use Honduran democracy as a bargaining chip in order to achieve Zelaya’s return to office. Kirchick notes the absurdity and hypocrisy of this position:
  

  How does this administration justify its recognition of results of elections in Pakistan, Iraq, and other countries mired in constitutional disputes, but now refuse to recognize an election in Honduras, even if it is conducted in a free and fair manner? And why give greater diplomatic dignity to the representatives of Iran–who have no legitimacy whatsoever–and not those of democratic Honduras?

  Writing in Foreign Policy magazine, Kevin Casas-Zamora makes a similar point:

  However imperfect, the election still offers the best route to restore some kind of normality in Honduras, so that the country’s democratic breakdown is not complete. . . . Without a doubt, semi-authoritarian thugs like Hugo Chávez and Daniel Ortega will cry foul no matter the election result since their man in Tegucigalpa never returned to power. But for serious countries such as the United States and Brazil — countries that wound up accepting the results of the recent election in Iran — turning the winner of a free and fair election in Honduras into a pariah would not just be an act of immense hypocrisy but also of foolishness. It is a surefire way to prolong this crisis indefinitely into the future. The price of this would be paid, as usual, by the poorest of the poor in Honduras.

  He concludes: “Unless evidence emerges that the current authorities in Honduras are engaging in systematic harassment against opposition leaders or the press, evidence of which so far has been scant, there is no reason to deny diplomatic recognition to the winner of November’s poll.”

• Michael Totten, writing in Commentary magazine, echoes this point:
  

  Either way, whether the ousted president returns or he doesn’t, a new election is scheduled to take place in November, and a new government will be sworn in next January. The crisis will then be over no matter what else happens between now and then. This may not be the preferred solution for the Obama administration and the Organization of American States, but it will solve the problem. Both Zelaya and the controversial interim government will be history. The only reason Honduras should be isolated or sanctioned after November is if the election is stolen or canceled.

  Indeed. How has such a simple proposition become so controversial? And what madness has seized the Obama administration that they are willing to write off the results of even a free and fair democratic election in order to rationalize a hasty and ill-considered initial stance?

• And what of the man Obama would make President of Honduras again? The Miami Herald reports:
  

  It’s been 89 days since Manuel Zelaya was booted from power. He’s sleeping on chairs, and he claims his throat is sore from toxic gases and “Israeli mercenaries” are torturing him with high-frequency radiation.

  Ah. So either [1] Israeli mercenaries are torturing Zelaya with high-frequency radiation; or [2] Zelaya is a paranoid delusional; or [3] Zelaya is not delusional, but there are no Israeli mercenaries, and Obama’s preferred president is knowingly stoking anti-Semetic sentiment. (Not anti-Semetic? Then why “Israeli” mercenaries?)

The global endorsement of Manuel Zelaya following his ouster was hasty and ill-considered back in June. In October it has become a farce. Will the United States really betray the cause of democracy and the rule of law in Honduras? And if it does, will Canada play along?

Underlying all the rhetoric about a military overthrow are facts. Simply put, coups do not leave civilians in control over the armed forces, as is the case in Honduras today. Neither do they allow the independent functioning of democratic institutions — the courts, the attorney general’s office, the electoral tribunal. Nor do they maintain a respect for the separation of powers. In Honduras, the judicial, legislative and executive branches are all fully functioning and led by civilian authorities.

Most importantly, as Micheletti notes, coups do not allow for regularly scheduled elections — and yet a presidential election is scheduled to go ahead in early November, and there has been no suggestion that the army, or the interim government, or anyone except Zelaya intends to interfere with that election:

The election is being convened by an autonomous body, the Supreme Electoral Tribunal, whose magistrates were selected by Congress in early 2009 and ratified by then-President Zelaya. The autonomous body began the electoral process with presidential primary elections — which were supervised by the Organization of American States — in 2008 also during Zelaya’s tenure.

The next six weeks will determine not only the political future of Honduras, but the commitment of the international community to democracy and the rule of law.

It’s been a month since the Honduran army, at the direction of the Supreme Court, removed President Manuel Zelaya from office, and a month since—on its own initiative—the army sent Zelaya into exile. A month of demonstrations and failed negotiations have not changed the status quo: the interim government of President Roberto Micheletti remains in power, isolated from its central American neighbors and ostracized on the world stage; and Zelaya remains determined to resume office, unrepentant of his illegal activity and encouraged by the support of world leaders from Obama to Chavez.

My June 30 article expressing support for Zelaya’s ouster has recently come in for criticism, with Dalhousie’s Prof. Robert Huish accusing me of (in essence) ignoring military brutality and the best interests of the Honduran people by supporting a conservative army coup. Though Prof. Huish makes a powerful emotional case, I stand by my position. Let me explain why.

Huish paints a disturbing picture of the state of affairs in Honduras. “[T]anks, tear gas, death threats, hired assassins, and soldiers keen to beat the poor to a pulp” have left the Honduran people “bleed[ing] in the streets,” he tells us. Those who protest are “sent . . . to early graves.” No right-thinking person could support such a brutal, repressive military regime, he suggests—and he’s right. If Honduras really were like that, I’d be the first to condemn the regime.

But Huish cites no specific source for his allegations, and reports from reputable human rights organizations paint a very different picture—one that is troubling enough without embellishment or exaggeration. Both Amnesty International and Human Rights Watch have identified acts of intimidation by the Honduran military, including the arrest of pro-Zelaya demonstrators and the obstruction of certain media outlets. And, of course, the military appears to have been responsible for the tragic and unnecessary death of Isi Obed Murillo, a fifteen-year-old boy shot during a pro-Zelaya protest at the Tegucigalpa airport on July 5. These repressive tactics are deplorable, and supporters of Honduran democracy should be the first to demand investigation and accountability.

Yet these documented military excesses and abuses, deplorable though they are, do not turn Honduras into the police state Huish describes. The restrictions on Honduran liberty imposed since Zelaya’s removal—the curfews, travel restrictions, and media controls—are all related to the current crisis; they are not designed to install a military government. I want to make clear that I think the measures are unwise and unnecessary. But it is important to remember that Zelaya has called for a mutiny in the army ranks, and that Hugo Chavez has repeatedly threatened invasion. Pierre Trudeau suspended civil liberties and rolled in the tanks in far less pressing circumstances during the October Crisis of 1970; and while that decision was (and remains) deeply controversial, it did not turn Canada into a military dictatorship.

So it is in Honduras. The military may well be operating with an unnecessarily heavy fist, and to the degree that it is, it is to be condemned. But the military has not overthrown the civilian government. Elections are expected to take place on schedule this fall, and I have seen no reports of army interference with that democratic process. In fact, interim President Micheletti has repeatedly indicated the government’s willingness to advance the date of elections so that Hondurans can choose a new government untainted by the Zelaya ouster; but Zelaya has rejected the compromise because it will not return him to office. The point is that whether elections happen now or in the fall, they will happen; and I will gladly join Prof. Huish in calling on the new government to investigate the military’s conduct during the crisis and to punish unnecessary excesses.

Yet that does not seem to satisfy Prof. Huish, who admits that he’d just as soon see the Honduran constitution swept aside—provided it is Zelaya who does the sweeping. “Honduras’s constitution has let down its nobodies,” he writes, those who are “too poor to see the doctor, too marginalized to go to school, and many [of whom] are doomed to die before the age of five because of dirty water, closed up hospitals, and preventable diseases.” Huish may well be right; I don’t pretend to be an expert on Honduran domestic politics. And as a political platform, his call for social justice has great appeal. But Huish seems to argue that the existence of social inequalities delegitimizes the entire existing constitutional order and (therefore) justifies Zelaya’s conduct in attempting an illegal constitutional change.

I disagree. The extent to which positive social rights should be constitutionally and legally protected is an age-old question in the democratic world. Different societies have come to different conclusions at different times, and the debate rages on—consider, for instance, our American neighbours’ current debate over health care. A country should be free to choose where on that continuum it falls at any given time, and that choice should take place at the ballot. As long, therefore, as all members of society have the right to participate in elections, we outside observers should respect—and support—the underlying constitutional order.

That doesn’t mean we should be content with the political status quo. It may be, as Prof. Huish suggests, that poor Hondurans face practical obstacles to voting; if that’s so, then I certainly would support efforts to remove those obstacles by, for instance, providing public transportation to polling stations and ensuring that citizens are not punished by employers for taking time off to vote. But it is dangerous to suggest, as Huish seems to suggest, that a failure to pass certain social policies delegitimizes a constitutional government. If that were so, then every election would become a civil war, as every losing party would claim an entitlement to overthrow the constitution in order to enact its own preferred policies. Democracy cannot survive in such conditions.

We need not be content with the politics of the Honduran government; but we must be content with the rule of law. By all means, let us agitate for policy changes that expand social rights; but let us do so in the context of elections. The alternative—rejection of the constitutional order and imposition of certain policies by strong-arm and fiat—is lawlessness. It puts power in the hands of the strongest, or the meanest, or the least compromising. It encourages violence and retribution. And it is, after all, how we got here in the first place.

The events leading up to the present crisis are largely undisputed. Manuel Zelaya became president in 2006, elected to a single four-year term ending in January 2010. The Honduran Constitution barred Zelaya from running for re-election, and as his term neared an end he sought to overcome the constitutional bar by amending the Constitution. But the Constitution prohibits amendment of the presidential term limit; so Zelaya sought to organize a constitutional convention that would re-write the rules. But the Constitution also prevented the president from calling such a convention, giving that power to the Congress. And the Congress said no.

Undeterred, Zelaya announced that he would go ahead with a referendum on the question of the term limit, and ordered ballots from Venezuela. The matter proceeded to the Supreme Court, which declared the referendum illegal. Zelaya demanded that the army assist him in administering the referendum (as they would, apparently, in the normal course of things); the army’s commanding officer refused, citing the Supreme Court’s decision; and Zelaya promptly fired him. When the Supreme Court ordered his reinstatement, Zelaya either refused or immediately fired him again.

The army, having refused to administer the referendum, seized the ballots that had been delivered from Venezuela. Zelaya then organized a mob and broke into the military installation where the ballots were held, seized them, and began to distribute them.

This is where things get a bit hazy. The army arrested Zelaya at his home. It is unclear whether they acted at the express order of Congress or the Supreme Court; what is clear, however, is that they acted with the approval of both. It is also unclear whether Zelaya chose to leave the country rather than face justice in Honduras. In any case, as soon as he was deposed, the Congress initiated proceedings, under the Constitution, to ensure the succession of power. An interim president was chosen to preside until the regularly scheduled elections choose a new leader this fall. Zelaya’s ouster has popular support, including the support of Zelaya’s own party in Congress. And at no time has the Honduran military attempted to seize any political power.

Yet almost immediately upon Zelaya’s removal, world governments — including the Canadian and American governments — leapt to Zelaya’s defense, condemning his removal as a “coup” and warning against the intervention of the Honduran military in domestic political affairs.

This is a mistake. The confrontation between the three branches of the Honduran Republic is a Honduran constitutional crisis, and it is up to Honduras to settle the matter. And that is what they have done. There is no question, and it cannot reasonably be doubted, that Zelaya broke the law – not only in pursuing his referendum in the face of the Supreme Court’s decision, but in refusing to reinstall the army commander and in seizing the referendum ballots from the military. The other branches were entirely within their rights – their rights under the Honduran constitution, and their inalienable rights as adjudged by a candid world – to order Zelaya’s arrest.

Now it may be, as some have suggested, that the precise mechanism by which Zelaya was arrested and removed from office was extra-constitutional. I’d have thought that the Supreme Court of Honduras would be the arbiter of that; or that at the least the people of Honduras, not the presidents of Venezuela, Cuba, and the United States, should be the ones to decide. But if the removal was extra-constitutional, Zelaya’s restoration is not the remedy. Indeed, having so clearly broken the law, Zelaya — if he is dissatisfied with exile — should face prosecution in Honduras.

Instead, world governments have refused to recognize the duly constituted government of Honduras and have demanded Zelaya’s restoration. Why?

I’ve heard various explanations, none of them compelling. It has been suggested — and I’m given to understand that this is the prevailing attitude at PMO and DFAIT — that Zelaya is the democratically elected president, and that he should remain in that position until a new president is elected in the fall. And it has been suggested that approval of the ouster would encourage a return to the military coups that were common in Central and South America in the twentieth century.

These explanations suffer a common fault: they are based on superficial assumptions about the state of democracy in Honduras, and in Latin America more generally. The explanations are related: we ought to support the democratically elected president as against the military, the thinking goes, because the president is a tribune of the people while the army is a reactionary force that would subvert democracy.

But in fact the exact opposite is true: there is absolutely no sign, hint, or indication that the Honduran military seeks political power, while Zelaya has openly sought to expand his political power beyond the bounds of the constitution in defiance of the laws of the land and the dictates of the political and judicial branches. Nor does the point hold more broadly: while military coups posed a great threat to Latin American democracy in the middle years of the twentieth century, the greater threat in the past two decades has come from elected presidents — elected presidents who use quasi-constitutional mechanisms like “non-binding plebiscites” to accrete power from the other branches, gradually eroding constitutional checks and balances to the point that once-functioning democracies like Venezuela have become the fiefdoms of megalomaniac despots like the “democratically elected” Hugo Chavez. The knee-jerk preference for a democratically elected president over the military may be laudable in the abstract but it is faulty in practice.

And that’s the great risk of our meddling — for meddling is what it is, and make no mistake. The risk — aside from our betrayal of the Honduran people in the moment of their triumph — is that Zelaya, once returned, will succeed in subverting the constitution and installing himself as president for another term. Backed by the threat of a Venezuelan invasion, and with the tacit approval of the United States and the United Nations, he certainly would be a fool not to try. And then what?

Zelaya says he has no intention of serving another term as president. The proof will be in the pudding. By rights he should be in prison. Thanks to the hasty and ill-advised meddling of the Canadian, American, and other world governments, he may return to office until year’s end. In January he will either stay or go. If he goes, then his temporary ouster will at least have put a stop to his illegal schemes.

If he stays, then we will have been complicit in the installation of a despot.

ADDITIONAL READING:

The New Republic:

Honduras’s political class grasped clearly that to allow Zelaya’s charisma to trump the nation’s explicit constitutional ban on presidential continuismo would be to open the door to the kind of institutional involution that Venezuela and Bolivia have experienced, with a hyperempowered executive gradually eating away at the other branch’s prerogatives until nothing of the Republic is left.

Investor’s Business Daily:

There was a coup all right, but it wasn’t committed by the U.S. or the Honduran court. It was committed by Zelaya himself. He brazenly defied the law, and Hondurans overwhelmingly supported his removal . . . . Yet the U.S. administration stood with Chavez and Castro, calling Zelaya’s lawful removal “a coup.” Obama called the action a “terrible precedent,” and said Zelaya remains president. In doing this, the U.S. condemned democrats who stood up to save their democracy, a move that should have been hailed as a historic turning of the tide against the false democracies of the region.

The National Review:

Despite its fidelity to constitutional procedures, Honduras has come under intense fire from abroad and may be forced to reinstall Zelaya as president. That would be a deplorable outcome. Zelaya’s exile was not about trashing the constitutional order; it was about defending that order. Why should Honduras be compelled to restore a president who showed utter contempt for the democratic process, and whose removal was backed by the judiciary and confirmed by the legislature?

The Wall Street Journal:

As military “coups” go, the one this weekend in Honduras was strangely, well, democratic. The military didn’t oust President Manuel Zelaya on its own but instead followed an order of the Supreme Court. It also quickly turned power over to the president of the Honduran Congress, a man from the same party as Mr. Zelaya. The legislature and legal authorities all remain intact.

We mention these not so small details because they are being overlooked as the world, including the U.S. President, denounces tiny Honduras in a way that it never has, say, Iran. President Obama is joining the U.N., Fidel Castro, Hugo Chávez and other model democrats in demanding that Mr. Zelaya be allowed to return from exile and restored to power. Maybe it’s time to sort the real from the phony Latin American democrats.

John Fund:

No one likes to see a nation’s military in the streets, especially in a continent with such painful memories of military rule. But Honduras is clearly a different situation. Members of Mr. Zelaya’s own party in Congress voted last week to declare him unfit for his office. Given his refusal to leave, who else was going to enforce the orders of the nation’s other branches of government?

The proposal is simply to adopt a single transferable ballot within each riding. Representatives (whether MPs or MPPs or what have you) will still be apportioned according to population within contiguous geographic bounds–i.e. ridings–but each voter within that riding will be able to indicate a second and even third ‘choice’ on their ballot. If no candidate receives a majority of votes within the riding based on first preferences, candidates receiving votes below a certain threshold will be disqualified and ‘their’ ballots recast according to those voters’ second preference. If there is still no majority winner, the process repeats until there is.

Having a single transferable vote system within ridings would–unless my math is wrong–eliminate the main objection to the First Past the Post System, namely its propensity in multi-party democracies to grant majority power to a party winning only a plurality of votes. If a government is formed by the party winning a majority of seats, and if each seat is held by a candidate who has ultimately received a majority of votes (whether first-preference or first-through-third preference), then a majority government will enjoy the electoral support of a majority of voters (assuming ridings are equal or roughly equal in population–and I’d be all for ensuring that this is, and continues to be, the case).

It’s not PR, by any means; but I happen to be one of the neanderthals who things that in a broad and diverse nation, expressions of geographic interest play an important role. In any case, it strikes me as being an incremental improvement that gets us closer to a truly proportional system of representation without scrapping the existing system entirely.

Thoughts?

The Federal Court issued an opinion today ordering the Canadian government to request Omar Khadr’s repatriation from Guantanamo Bay. Two thoughts:

First, the opinion’s logic strikes me as flawed. The fundamental holding is that Khadr’s Section 7 Charter rights have been violated because (a) he has been detained at Guantanamo Bay as a ‘child’ and (b) while at Guantanamo Bay he has been subjected to sleep deprivation prior to interrogation. These alleged acts violate Khadr’s Canadian constitutional rights, notwithstanding the fact that they occurred outside of Canada and at the hands of non-Canadians, because Canadian government officials were complicit by virtue of their interrogation of Khadr in these circumstances. The court concludes that the only plausible remedy is an order compelling the government to exercise its heretofore-prerogative power to request Khadr’s return.

I don’t think the court’s logic follows. Khadr’s claim (as I read it) is not that the government must request his repatriation because his Section 7 rights have been violated; his claim is that the government’s failure to request his repatriation itself violates his Section 7 rights. The court blurs the distinction, but it’s an important one. If the rights identified by the court—detention while a child and sleep-deprivation—were violated, they were violated some time in the past. Khadr is no longer a child, and the allegations regarding sleep-deprivation relate to events occurring between 2002 and 2004. Given that these violations occurred in the past, how does repatriation now—when the violations are not alleged to continue—remedy the wrong? That doesn’t mean there should be no remedy at all; if the Canadian government was complicit in the violation of these rights, it seems to me the appropriate remedy is an action for money damages against the Canadian government. But I don’t think it follows that because Khadr’s rights were violated in the past, but are not being violated now, the Constitution requires the Canadian government to demand his return as a means of remedying the past wrong.

The second thought is a more general one. The court explicitly acknowledges that it is infringing on what is traditionally a prerogative power of the executive branch. Indeed, it can cite to no other case—anywhere in the world—that has infringed on this power in this way. The result is to mandate the appropriate exercise of this consular power; that is, the court’s decision erases any discretion the government has traditionally had, and declares that only one possible choice among the universe of policy choices in this circumstance is constitutional.

We seem to be seeing a lot of that these days—attempts to mandate a particular policy choice by determining that alternative policy choices are unconstitutional. But by mandating a particular policy choice, the deciding court places that choice outside the realm of politics, thereby foreclosing debate and discussion. That’s bad for democracy. There are good, honest arguments on both sides of the repatriation debate. Both sides should have the opportunity, and ability, to affect government policy. And if government policy ultimately strays from popular opinion on a particular choice, the people have an opportunity to alter that policy—at the ballot.

There is a great temptation, always, to declare an opposing policy alternative to be so wrong, so immoral, so contrary to received notions of good government, that it cannot be tolerated by law. But when we succumb to that temptation, we constrict the realm of politics, restrict our collective ability to make policy choices, and reduce the involvement of the electorate in the process of governance. That’s not my idea of democracy.