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22/07/2009 | Briefing: Was Zelaya's ouster a coup?

Sara Miller Llana

Hondurans debate the legality of the forced exile of President Manuel Zelaya.In the early hours of June 28, military forces entered the home of Honduran President Manuel Zelaya, put him under arrest, and sent him on a plane to Costa Rica. Leaders from around the world condemned the action as a coup – a "violent overthrow or alteration of an existing government by a small group," according to Merriam-Webster.


But the interim leaders in Honduras claim that their president vacated his office by acting against the Constitution and that a legal succession of power took place. Neither side has backed down, though talks are under way in Costa Rica .

What's the legal argument that this was a coup?

The fact that the military arrested Mr. Zelaya at gunpoint and, most important, exiled him, are the key points raised by world leaders who call the events a coup. The Organization of American States (OAS) voted unanimously to suspend Honduras from the regional body, citing Article 21 of its Inter-American Democratic Charter, which states that if there is "an unconstitutional interruption of the democratic order of a member state, and that diplomatic initiatives have failed, the special session shall take the decision to suspend said member state." The OAS decision is in line with much of the global reaction, as nations have recalled ambassadors and suspended trade and aid. The US government has declared the ouster "not legal."

Jennifer McCoy, director of the Americas Program at the Atlanta-based Carter Center, explains: "The reason why the international community considers it a coup is that the military captured [Zelaya] and removed him from the country without due process."

What's the argument that it was not a coup?

The interim government, led by Roberto Micheletti, claims that a "coup" never occurred in Honduras because the military was operating under court order, never assumed power, and had the support of nearly all institutions in Honduras.

Octavio Sanchez, a lawyer and constitutional expert in Honduras who agrees with Mr. Micheletti, explains the legal reasoning. Zelaya was pushing forward with an attempt to hold a nonbinding vote to consider a constituent assembly, which the Supreme Court declared illegal. Article 239 of the Constitution is the key. It prohibits presidents from running for reelection, and it states that whoever does so, or proposes to do so, must immediately vacate the office.

Zelaya published his intentions to hold a national poll on convening a constituent assembly in the official gazette days before his ouster. The Honduran courts and other sectors viewed this as a way to open the door to scrapping term limits for presidents, says Mr. Sanchez. Zelaya has denied this. The Supreme Court issued an order for the military to arrest him for breaking court orders requiring him to act within the constitutional framework.

Under Article 306 of the Constitution, the courts have a right to send law enforcement to execute an arrest warrant. But under Article 102 of the Constitution, no Honduran citizen can be exiled.

Under the nation's penal codes, says Mr. Sanchez, the military could argue that it was operating under "necessity," to maintain peace, in sending Zelaya on a plane to Costa Rica. And under Article 272 of the Constitution, the military could also argue that it was exiling the leader in its mission to defend public order and the Constitution.

Why are so many nations against the interim government?

Honduran officials say that the international community does not understand the Honduran Constitution nor the threat to democracy that Zelaya represented, and that they have erroneously come to their conclusions. Yet many observers say that, regardless of the legal arguments presented, the Honduran de facto government remains isolated in its judgment.

"They claim there was a legal resolution backing military force. To be frank, if you have a legal ruling from the Supreme Court, you send the police. You do not send the military at 5 a.m. That is not normal law enforcement. That is an old-fashioned coup d'état," says Kevin Casas-Zamora, a former vice president of Costa Rica who is now at the Brookings Institution in Washington. He says the legal claims raised by the interim government "smack of postfact rationalization," he says. "Nobody believes that story outside of Honduras."

Zelaya is charged with breaking laws prior to his ouster. "But having him removed by gunpoint, and put on a plane, is not in the Constitution, either," says Christopher Sabatini, editor of the New York-based Americas Quarterly. He argues Zelaya should have been arrested and tried.

Is anyone likely to go to jail, and under what laws?

The interim government is alleging that Zelaya has broken myriad laws and said initially that he should face arrest on various charges, including treason and abuse of authority. If not granted amnesty, Zelaya could be tried under Honduran law and face jail time.

The Honduran government had sent a request for an international warrant for Zelaya's arrest for "misuse of authority, usurpation of public functions, offenses against the system of government, and treason." But Interpol said that it declined to carry out the warrant, because it seemed politically motivated. It noted that it "is strictly forbidden for the organization to undertake any intervention or activities of a political, military, religious or racial character." Interpol also declined because it said Hondurans had a chance to arrest Zelaya, had that been their wish.

There is no international court that rules on cases of coups. The only recourse is making the new government subject to nonrecognition, which the OAS and several world governments have already done. Sanchez says that if the military is found guilty for removing Zelaya from the country – forced exile was not specifically put in the warrant order by the Supreme Court – it could possibly face charges in Honduras. Zelaya could also sue the country at the Inter-American Court of Human Rights, he says.

The interim government does not risk any charges. Under Article 242 of the Constitution, which lays out the rules for succession of power, Micheletti, as the president of the Congress and with no standing vice presidents at the time, was the person in line to take over the presidency and name a cabinet. The Congress voted the day of Zelaya's ouster to strip him of his powers and instate Micheletti as provisional president of Honduras.

CSMonitor (Estados Unidos)


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