BACKGROUND

Honduras is a traditionally conservative society with a long history of close alignment with the US. It has experienced  a number of authoritarian military governments over the years that have gone to great lengths to maintain their grip on power. It also has gone through sixteen constitutions, the most recent of which was created after the reestablishment of democracy in 1982. One of the things that makes the current Honduran  constitution unusual, possibly unique, in the region is its constitutional principle of inviolability, through which certain select articles are not amendable, including the right to presidential reelection. 

Zelaya was elected to the presidency through Honduras’s traditional party system. While not initially particularly partisan, he eventually sought to align himself increasingly with the government of Hugo Chavez of Venezuela, and the association of leftist nations started and led by him known as ALBA, or Association of the Bolivarian Alternative. Meanwhile, Zelaya’s greatly deteriorated relationship with important segments of Honduran society, including the press, legislature, and judiciary, led to  low points within the last year that included his refusal to submit a budget to Congress and publicly declaring a short-lived phone wiretapping campaign. By most reliable accounts, Zelaya was a deeply unpopular figure in Honduras well before his ouster, with frequently cited presidential approval polls hovering around 30% in his last few months of office.

Zelaya never openly stated any plan to change the reelection provisions of the Honduran constitution, but instead engaged in a bitter open feud with the legislative and judicial branch over the right to engage in a national survey on that subject only a few months before his one single term was to end. The Honduran Supreme Court declared that such an act would amount to referendum in violation of the constitution, which under the constitution would result in the president’s immediate removal from power under Article 239 of its constitution. When Zelaya attempted to pursue the survey anyway, he was arrested by the military the night before and exiled from the country. Both sides acknowledge that the forcible expatriation of Zelaya was in fact a plain violation of the Honduran constitution’s Article 102, which explicitly forbids forcible expropriation, although the Honduran military has argued it was forced to take such action to save lives and prevent chaos (for more on the interim government’s constitutional arguments, see the accompanying interview with Ian Merriam). The interim president has made clear that he intends to step down and hold fresh elections as soon as Zelaya’s term ends in November of this year and has signaled a willingness to hold elections even earlier than that.

The more likely explanation offered by independent outside analysts is that politicians of all political stripes in Honduras regularly disregard the national constitution, often treating it often more as an aspirational document with “little bearing on political reality” than as the functioning guidelines for rule of law that it was created to be. This culture of political extra-constitutional impunity was exemplified by both Zelaya’s behavior in office as well as by his ouster, although it has long preceded both. More than any other single factor, it has made possible the multiple current constitutional crises that Honduras faces.

Since Zelaya’s ouster, the interim government has managed to further exacerbate the conflict, and inflame international opinion against it, by refusing to allow Zelaya to return to respond to the constitutional case against him through the political and legal processes. Micheletti’s supporters have argued that as a nation with widespread poverty and a weak institutional history, there would be a high risk of violence and upheaval were Zelaya to return. However, the Micheletti government’s refusal to engage Zelaya through the courts has undermined the force of what are otherwise at least colorable arguments of Zelaya’s abuses of his constitutional power.  

As a result, Honduras today is one of the most isolated countries in the world.  No country in the world has recognized its provisional government and its membership to the OAS has been suspended for violating the democratic provisions of the OAS charter. Despite strong appeals from both sides of the conflict to play a more active role, the Obama administration so far has taken somewhat of a backseat in mediating the conflict to the OAS and others, such as Oscar Arias, the Nobel Peace Prize Winning former Costa Rican president, but has joined with other nations and international institutions in suspending some aid to Honduras.  Ian Meriam, a leader of Honduran Democratic Civil Union (UCD), a civil society group that strongly supports the interim government, states that while the effect of the financial cut off has yet to be fully felt, it will only be “a short matter of time” before the state will be economically squeezed to the point that it is forced to take back Zelaya, even under terms which would violate the Honduran constitution.

ANALYSIS

As laudable as is the Obama administration’s goal of strengthening strategic alliances and institutions through the international response to the crisis, by ensuring that Honduras’ current constitutional system is respected, the U.S. may be able to do more in the long run to strengthen democracy and rule of law in the region.  Rather than delegating the resolution of the conflict to others, the US should take a proactive role in seeking to resolve the conflict not in a way that does not undermine the Honduran constitution, by ensuring that both sides agree to use their nation’s legal system as the final arbiter of the conflict.

This will mean that constitutional violations by both sides will have to be rectified. First, Zelaya must be allowed to return to Honduras from an unconstitutional exile, although that does not mean that he must be allowed to automatically continue with his presidency.  However, Zelaya must be permitted the opportunity to offer a full defense of the constitutionality of his actions before the court in person, since rulings in absentia would not meet basic standards of justice.

Given that Supreme Court has already previously ruled against Zelaya with respect to his national survey, it would be understandable if Zelaya were not overly optimistic of his chances before it. Moreover, any negative ruling for Zelaya is unlikely to be viewed as acceptable by Zelaya’s leftist allies in ALBA, whose members have already accused the Supreme Court of selfishly only reflecting the interests of the Honduran oligarchy. Such arguments should not be accepted by the US and the rest of the international community, which, if accepted, would deprive the court of its constitutionally delegated responsibility to be the final arbiter of the constitution, thereby undermining the very underpinnings of rule of law in Honduras.

Honduras is neither an authoritarian nor a failed state; its judiciary has functioned independently as a separate branch of government since the country’s 1982 constitution was first ratified. As such, it is not logical for the world to object to Zelaya being subject to his country’s legal process on his return to Honduras simply on the grounds that its own high court could rule against him, as long as it can be shown that its decision is legally supportable and meets basic international standards of due process.

Both Zelaya and those opposed to him have shown a willingness to disregard the clear language of their own constitution and Supreme Court rulings. This continuing basic disregard for rule of law has not only made it difficult to resolve the current crises, but will remain a serious threat to democracy in Honduras regardless of whether Zelaya, Micheletti, or some other third party ends up as president in the end.  The Obama administration therefore should use its influence to urge all Honduran politicians to abide by the dictates of their constitutional system even when it goes against their own interests. Only when rule of law is genuinely respected in all countries in the Americas will such serious threats to democracy in the region truly be a thing of the past.

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Adam Benz is the Americas Region Editor for Foreign Policy Digest.

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