Abstract

http://ssrn.com/abstract=1915214
 


 



Report to the Commission on Truth and Reconciliation of Honduras: Constitutional Issues


David Landau


Florida State University - College of Law

Noah Feldman


Harvard Law School

Brian Sheppard


Seton Hall University School of Law

Leonidas Rosa Suazo


affiliation not provided to SSRN

August 23, 2011

FSU College of Law, Public Law Research Paper No. 536

Abstract:     
The Spanish version of this paper can be found at
http://ssrn.com/abstract=1950411

This report has been prepared for the Commission on Truth and Reconciliation of Honduras. It has two aims: first to give a legal and constitutional analysis of the events surrounding the removal of President José Manuel Zelaya Rosales from power in June 2009 (Part IV of the report), and second to make recommendations for constitutional and legal reforms in order to avoid similar happenings in the future (Part V of the report). The report also includes, in Part III, a brief summary of the relevant facts.

The events surrounding the June 2009 removal of President Zelaya Rosales from power involved three distinct dangers to democratic governance. The first is the risk that sitting chief executives or other powerful political actors will abuse their power in order to aggrandize themselves or to undermine other democratic institutions. There is a significant risk in many countries that these actors may be able to erode democracy from within. The second is the significant risk that militaries may become involved in political events, and in particular with irregular transfers of power. It is critical that militaries not take on the political role that they once commonly possessed in Latin America. The third is the lack of clarity in constitutional texts about the institutional role that should be played by different institutional actors during a crisis. The constitutional texts of numerous countries neither provide clear guidance as to how different actors should act during a crisis, nor explain how to manage conflicts between these actors.

An observer would be most likely to conclude that both President Zelaya Rosales and many of the institutions involved in his removal from power acted illegally and unconstitutionally at certain points. Zelaya Rosales most likely acted unconstitutionally when he proposed the Fourth Urn “consultation” or “poll,” and when he pushed forward with that project despite judicial orders to the contrary. At the same time, Zelaya Rosales was probably not removed from office by a legal process. Congress passed a bill purporting to remove Zelaya Rosales from office, but Congress did not appear to have the constitutional power to remove the President. And members of the Armed Forces acted unconstitutionally when they removed Zelaya Rosales from the country.

The three dangers to democracy identified in this case – executive erosion of democratic governance, military intervention in politics, and lack of clarity about the institutional roles of different political actors – are difficult for a constitutional text and for political actors to manage. One of the major problems in the Honduran case is that the constitutional text is vague or silent on several critical points. Most importantly, there is no clear constitutional roadmap laying out the substantive grounds for presidential removal, the process of removal, and the roles of various institutions during the removal process. We therefore highlight potential recommendations to the text. We also recommend reforms aimed at strengthening the rule of law in the country, and particularly the judiciary. Making the judiciary a more effective arbiter during an institutional crisis would lessen the possibility of resort to extraconstitutional processes.

Number of Pages in PDF File: 95

Keywords: Latin American law & politics, constitutional law, constitutional reform, Honduras, coup, constitutional design, constitutional theory, constituent assemblies, constitutional change, unamendable constitutional provisions

JEL Classification: K00

working papers series





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Date posted: August 23, 2011 ; Last revised: August 29, 2013

Suggested Citation

Landau, David and Feldman, Noah and Sheppard, Brian and Suazo, Leonidas Rosa, Report to the Commission on Truth and Reconciliation of Honduras: Constitutional Issues (August 23, 2011). FSU College of Law, Public Law Research Paper No. 536. Available at SSRN: http://ssrn.com/abstract=1915214 or http://dx.doi.org/10.2139/ssrn.1915214

Contact Information

David Landau (Contact Author)
Florida State University - College of Law ( email )
425 W. Jefferson Street
Tallahassee, FL 32306
United States

Noah Feldman
Harvard Law School ( email )
1575 Massachusetts Ave
Hauser Hall 210
Cambridge, MA 02138
United States
617-495-9140 (Phone)
Brian Sheppard
Seton Hall University School of Law ( email )
One Newark Center
Newark, NJ 07102-5210
United States
Leonidas Rosa Suazo
affiliation not provided to SSRN
Feedback to SSRN


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