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### Viewing cable 09TEGUCIGALPA645, TFHO1: OPEN AND SHUT: THE CASE OF THE HONDURAN COUP

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Reference ID | Date | Classification | Origin
--- | --- | --- | ---
09TEGUCIGALPA645 | 2009-07-24 00:12 | CONFIDENTIAL | Embassy Tegucigalpa

`

    VZCZCXYZ0000
    OO RUEHWEB

    DE RUEHTG #0645/01 2050023
    ZNY CCCCC ZZH
    O 240023Z JUL 09
    FM AMEMBASSY TEGUCIGALPA
    TO RUEHC/SECSTATE WASHDC IMMEDIATE 0237
    INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE IMMEDIATE
    RUEHCV/AMEMBASSY CARACAS IMMEDIATE 0735
    RHEHAAA/THE WHITE HOUSE WASHDC IMMEDIATE
    RUEAIIA/CIA WASHDC IMMEDIATE
    RHEFDIA/DIA WASHINGTON DC IMMEDIATE
    RUEIDN/DNI WASHINGTON DC IMMEDIATE
    RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC IMMEDIATE
    RUMIAAA/USSOUTHCOM MIAMI FL IMMEDIATE

` `

    C O N F I D E N T I A L TEGUCIGALPA 000645

    SIPDIS

    WHA FOR A/S TOM SHANNON
    L FOR HAROLD KOH AND JOAN DONOGHUE
    NSC FOR DAN RESTREPO

    E.O. 12958: DECL: 07/23/2019
    TAGS: PGOV KDEM KJUS TFH01 HO
    SUBJECT: TFHO1: OPEN AND SHUT: THE CASE OF THE HONDURAN COUP

    REF: TEGUCIGALPA 578

    Classified By: Ambassador Hugo Llorens, reasons 1.4 (b and d)

    ¶1. (C) Summary:  Post has attempted to clarify some of the
    legal and constitutional issues surrounding the June 28
    forced removal of President Manuel "Mel" Zelaya.  The
    Embassy perspective is that there is no doubt that the
    military, Supreme Court and National Congress conspired
    on June 28 in what constituted an illegal and
    unconstitutional coup against the Executive Branch, while
    accepting that there may be a prima facie case that Zelaya
    may
    have committed illegalities and may have even violated the
    constitution.  There is equally no doubt from our perspective
    that Roberto Micheletti's assumption of power was
    illegitimate.  Nevertheless, it is also evident that the
    constitution itself may be deficient in terms of providing
    clear procedures for dealing with alleged illegal acts by
    the President and resolving conflicts between the branches
    of government.  End summary.

    ¶2. (U) Since the June 28 removal and expulsion of President
    Zelaya by the Honduran armed forces, the Embassy has
    consulted Honduran legal experts (one cannot find a fully
    unbiased professional legal opinion in Honduras in the
    current politically charged atmosphere) and reviewed the
    text of the Honduran Constitution and its laws to develop a
    better understanding of the arguments being parlayed by the
    coup's supporters and opponents.

    -------------------------------
    Arguments of the Coup Defenders
    -------------------------------

    ¶3. (SBU) Defenders of the June 28 coup have offered some
    combination of the following, often ambiguous, arguments to
    assert it's legality:

    -- Zelaya had broken the law (alleged but not proven);

    -- Zelaya resigned (a clear fabrication);

    -- Zelaya intended to extend his term in office
    (supposition);

    -- Had he been allowed to proceed with his June 28
    constitutional reform opinion poll, Zelaya would have
    dissolved Congress the following day and convened a
    constituent assembly (supposition);

    -- Zelaya had to be removed from the country to prevent a
    bloodbath;

    -- Congress "unanimously" (or in some versions by a 123-5
    vote) deposed Zelaya; (after the fact and under the cloak
    of secrecy); and

    -- Zelaya "automatically" ceased to be president the moment
    he suggested modifying the constitutional prohibition on
    presidential reelection.

    ¶4. (C) In our view, none of the above arguments has any
    substantive validity under the Honduran constitution.  Some
    are outright false.  Others are mere supposition or ex-post
    rationalizations of a patently illegal act.  Essentially:

    -- the military had no authority to remove Zelaya from the
    country;

    -- Congress has no constitutional authority to remove a
    Honduran president;

    -- Congress and the judiciary removed Zelaya on the basis
    of a hasty, ad-hoc, extralegal, secret, 48-hour process;

    -- the purported "resignation" letter was a fabrication and
    was not even the basis for Congress's action of June 28;
    and

    -- Zelaya's arrest and forced removal from the country
    violated multiple constitutional guarantees, including the
    prohibition on expatriation, presumption of innocence and
    right to due process.

    -------------------------------------------
    Impeachment under the Honduran Constitution
    -------------------------------------------

    ¶5. (U) Under the Honduran Constitution as currently
    written, the President may be removed only on the basis of
    death, resignation or incapacitation.  Only the Supreme
    Court may determine that a President has been
    "incapacitated" on the basis of committing a crime.

    ¶6. (U) There is 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.

    ¶7. (U) 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 indicates 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.

    ¶8. (U) Many legal experts have also confirmed to us 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.  In the current situation in
    Honduras, since the Vice President, Elvin Santos, resigned
    last December in order to be able to run as the Liberal
    Party Presidential candidate, President Zelaya's successor
    would be Congress President Roberto Micheletti.
    Unfortunately, the President was never tried, or
    convicted, or was legally removed from office to allow a
    legal succession.

    -----------------------------
    The Legal Case Against Zelaya
    -----------------------------

    ¶9. (C) Zelaya's opponents allege that he violated the
    Constitution on numerous grounds, some of which appear on
    their face to be valid, others not:

    -- Refusing to submit a budget to the Congress: The
    Constitution is unambiguous that the Executive shall submit
    a proposed budget to Congress by September 15 each year
    (Art. 367), that Congress shall approve the budget (Art.
    366) and that no obligations or payments may be effectuated
    except on the basis of an approved budget (Art. 364);

    -- Refusing to fund the Congress: Article 212 states that
    the Treasury shall apportion quarterly the funds needed for
    the operation of the Congress;

    -- Proposing an illegal constitutional referendum: The
    Constitution may be amended only through two-thirds vote of
    the Congress in two consecutive sessions (Art. 373 and
    375); a constituent assembly to rewrite the constitution,
    as Zelaya promoted, is therefore unconstitutional; however,
    it is not clear that proposing a constituent assembly in
    itself violates the constitution, only that any changes
    ensuing from that assembly would be invalid;

    -- Defying the judgment of a competent court: Zelaya
    insisted on pushing ahead with his constitutional reform
    opinion poll after both a first-instance court and an
    appeals court ordered him to suspend those efforts;
    however, while he clearly intended to follow through with
    the poll, he never actually did it;

    -- Proposing to reform unreformable articles: Since
    Zelaya's proposed constituent assembly would have unlimited
    powers to rewrite the constitution, it violated Article
    374, which makes certain articles unamendable; once again,
    though, Zelaya never actually attempted to change the
    so-called "carved in stone" articles; it was only assumed
    he intended to;

    -- Dismissing the armed forces chief: The Supreme Court's
    Constitutional Hall ruled June 25 that Zelaya was in
    violation of the Constitution for dismissing Defense Chief
    Vasquez Velasquez; the Constitution (Art. 280) states that
    the President may freely name or remove the chief of the
    armed forces; but the court ruled that since Zelaya fired
    him for refusing to carry out a poll the court had ruled
    illegal, the firing was illegal.

    ¶10. (C) Although a case could well have been made against
    Zelaya for a number of the above alleged constitutional
    violations, there was never any formal, public weighing of
    the evidence nor any semblance of due process.

    -----------------------
    The Article 239 Cannard
    -----------------------

    ¶11. (U) Article 239, which coup supporters began citing
    after the fact to justify Zelaya's removal (it is nowhere
    mentioned in the voluminous judicial dossier against
    Zelaya), states that any official proposing to reform the
    constitutional prohibition against reelection of the
    president shall immediately cease to carry out their
    functions and be ineligible to hold public office for 10
    years.  Coup defenders have asserted that Zelaya therefore
    automatically ceased to be President when he proposed a
    constituent assembly to rewrite the Constitution.

    ¶12. (C) Post's analysis indicates the Article 239 argument
    is flawed on multiple grounds:

    -- Although it was widely assumed that Zelaya's reason for
    seeking to convoke a constituent assembly was to amend the
    constitution to allow for reelection, we are not aware
    that he ever actually stated so publicly;

    -- Article 239 does not stipulate who determines whether it
    has been violated or how, but it is reasonable to assume
    that it does not abrogate other guarantees of due process
    and the presumption of innocence;

    -- Article 94 states that no penalty shall be imposed
    without the accused having been heard and found guilty in a
    competent court;

    -- Many other Honduran officials, including presidents,
    going back to the first elected government under the 1982
    Constitution, have proposed allowing presidential
    reelection, and they were never deemed to have been
    automatically removed from their positions as a result.

    ¶13. (C) It further warrants mention that Micheletti himself
    should be forced to resign following the logic of the 239
    argument, since as President of Congress he considered
    legislation to have a fourth ballot box ("cuarta urna") at
    the November elections to seek voter approval for a
    constituent assembly to rewrite the constitution.  Any
    member of Congress who discussed the proposal should also
    be required to resign, and National Party presidential
    candidate Pepe Lobo, who endorsed the idea, should be
    ineligible to hold public office for 10 years.

    --------------------------------------------- -
    Forced Removal by Military was Clearly Illegal
    --------------------------------------------- -

    ¶14.  (C) Regardless of the merits of Zelaya's alleged
    constitutional violations, it is clear from even a cursory
    reading that his removal by military means was illegal, and
    even the most zealous of coup defenders have been unable to
    make convincing arguments to bridge the intellectual gulf
    between "Zelaya broke the law" to "therefore, he was packed
    off to Costa Rica by the military without a trial."

    -- Although coup supporters allege the court issued an
    arrest warrant for Zelaya for disobeying its order to
    desist from the opinion poll, the warrant, made public days
    later, was for him to be arrested and brought before the
    competent authority, not removed from the county;

    -- Even if the court had ordered Zelaya to be removed from
    the country, that order would have been unconstitutional;
    Article 81 states that all Hondurans have the right to
    remain in the national territory, subject to certain narrow
    exceptions spelled out in Article 187, which may be invoked
    only by the President of the Republic with the agreement of
    the Council of Ministers; Article 102 states that no
    Honduran may be expatriated;

    -- The armed forces have no/no competency to execute
    judicial orders; originally, Article 272 said the armed
    forces had the responsibility to "maintain peace, public
    order and the 'dominion' of the constitution," but that
    language was excised in 1998; under the current text, only
    the police are authorized to uphold the law and execute
    court orders (Art. 293);

    -- Accounts of Zelaya's abduction by the military indicate
    he was never legally "served" with a warrant; the soldiers
    forced their way in by shooting out the locks and
    essentially kidnapped the President.

    ¶15. (U) The Armed Forces' ranking legal advisor, Col.
    Herberth Bayardo Inestroza, acknowledged in an interview
    published in the Honduran press July 5 that the Honduran
    Armed Forces had broken the law in removing Zelaya from the
    country.  That same day it was reported that the Public
    Ministry was investigating the actions of the Armed Forces
    in arresting and deporting Zelaya June 28 and that the
    Supreme Court had asked the Armed Forces to explain the
    circumstances that motivated his forcible exile.

    ¶16. (C) As reported reftel, the legal adviser to the
    Supreme Court told Poloff that at least some justices on
    the Court consider Zelaya's arrest and deportation by the
    military to have been illegal.

    ------------------------------------------
    Congress Had no Authority to Remove Zelaya
    ------------------------------------------

    ¶17. (C) As explained above, the Constitution as amended in
    2003 apparently gives sole authority for removing a
    president to the judiciary.  The Congressional action of
    June 28 has been reported in some media as acceptance of
    Zelaya's resignation, based on a bogus resignation letter
    dated June 25 that surfaced after the coup.  However, the
    June 28 Congressional resolution makes no mention of the
    letter, nor does it state that Congress was accepting
    Zelaya's resignation.  It says Congress "disapproves" of
    Zelaya's conduct and therefore "separates" him from the
    office of President -- a constitutional authority Congress
    does not have.  Furthermore, a source in the Congressional
    leadership told us that a quorum was not present when the
    resolution was adopted, rendering it invalid.  There was no
    recorded vote, nor a request for the "yeas" and "nays."

    ¶18. (C) In sum, for a constitutional succession from Zelaya
    to Micheletti to occur would require one of several
    conditions:

    Zelaya's resignation, his death, or permanent medical
    incapacitation (as determined by judicial and medical
    authorities), or as discussed previously, his formal criminal
    conviction and removal from office.  In the absence of any of
    these conditions and since Congress lacked the legal
    authority to remove Zelaya, the actions of June 28 can only
    be considered a coup d'etat by the legislative branch, with
    the support of the judicial branch and the military, against
    the executive branch.  It bears mentioning that, whereas the
    resolution adopted June 28 refers only to Zelaya, its effect
    was to remove the entire executive branch.  Both of these
    actions clearly exceeded Congress's authority.

    -------
    Comment
    -------

    ¶19. (C) The analysis of the Constitution sheds some
    interesting light on the events of June 28.  The Honduran
    establishment confronted a dilemma: near unanimity among
    the institutions of the state and the political class that
    Zelaya had abused his powers in violation of the
    Constitution, but with some ambiguity what to do about it.
    Faced with that lack of clarity, the military and/or
    whoever ordered the coup fell back on what they knew -- the
    way Honduran presidents were removed in the past: a bogus
    resignation letter and a one-way ticket to a neighboring
    country.  No matter what the merits of the case against
    Zelaya, his forced removal by the military was clearly
    illegal, and Micheletti's ascendance as "interim president"
    was totally illegitimate.

    ¶20. (C) Nonetheless, the very Constitutional uncertainty
    that presented the political class with this dilemma may
    provide the seeds for a solution.  The coup's most ardent
    legal defenders have been unable to make the intellectual
    leap from their arguments regarding Zelaya's alleged crimes
    to how those allegations justified dragging him out of his
    bed in the night and flying him to Costa Rica.  That the
    Attorney General's office and the Supreme Court now
    reportedly question the legality of that final step is
    encouraging and may provide a face-saving "out" for the two
    opposing sides in the current standoff. End Comment.
    LLORENS

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