Thursday, July 2, 2009

Constituent Power, Coup in Honduras, and a Brief Comment about Puerto Rico

By now, the 'official' justification for the coup in Honduras has been that President Manuel Zelaya intended to amend the constitution in order to perpetuate himself as president. In fact, the same day of the coup, a non-binding referendum was scheduled to take place and the coup was the last attempt to stop that electoral event (the referendum had already being declared 'illegal' by the Electoral Court, the Supreme Court of Justice, and even Congress had adopted a law prohibiting the realization of electoral events 180 days before a general election). Why so many efforts in preventing a non-binding referendum to take place?

Those who opposed Zelaya as well as many political analysts from Honduras and the United States, insisted that the June 28 non-binding referendum was about allowing the President's re-election. The Constitution of Honduras, as most Latin American constitutions (unlike the U.S. Constitution and most European constitutions), do not allow anyone to run for President for a second time. There are philosophical reasons for such prohibition (as the importance that is given to the alternation of power in democratic and republican theory), but perhaps the most important historical reason in the Latin American context is that, in countries that have experience numerous dictatorships, the idea of anyone being in power for more than 5 or 6 years (even if democratically elected), is always seen with suspicion.

However, the Constitution of Honduras goes farther than most as it contains clauses that establish that the Presidential term cannot be amended (Articles 374 and 239). This type of clause is usually known in Latin American and European constitutional theory as cláusula pétrea or cláusula de intangibilidad (usually known in Anglo-American constitutional theory as eternity or unamendable clauses, and sometimes simply as 'entrenchment'), as it puts certain provisions or principles outside the scope of the amending power. These clauses are very common through constitutional systems around the world, the most common examples are those that establish that the republican form of government cannot be altered (a cláusula de intangibilidad included in many Latin American and European constitutions, as well as in the Constitution of the Commonwealth of Puerto Rico).

But the re-election issue was not the only and probably not the real reason for the great concern that some groups had with the celebration of the non-binding referendum. In fact, the referendum did not ask electors whether they wanted the constitution to be amended in order to allow for the re-election of Zelaya (see the Official Decree calling for the referendum, see also here and in English, here and here), but whether they wanted to convene a Constituent Assembly in order to adopt a new constitution. This new constitution might or might not allow for re-election, but also opened the possibility for popular organizations and groups of the left to push forward different social and economic reforms (see for example, here, here, here, and here). Of course, these possible constitutional reforms (associated to countries such as Venezuela, Bolivia, and Ecuador), along with the leftist inclinations that Zelaya had been showing particularly at an international level, represented a threat to the interests of different elites (both national and international) (see here, and for an overview of some of the conservative politics of Zelaya, see here).

In fact, the argument that Zelaya intended to perpetuate himself in power is much more weaker than it might appear at first view: if the non-binding referendum had taken place, and if people had supported the convocation of the Constituent Assembly, a binding referendum must have been celebrated in the November general elections in which electors would have been asked again about the adoption of a new constitution (the so-called fourth ballot, that by the way would have required Congress' support). This means that even if the new constitution created allowed for re-election, Zelaya could not have benefited himself from that change because a new President (that could not have been him) would already be in power by the time the new constitution came into effect (nevertheless, Zelaya could have run for President again in the future and subsequently run for re-election).

So, the principal argument of the coup perpetrators is that because the non-binding referendum had the ultimate objective of amending the constitution in order to allow for re-election, and that because the Constitution of Honduras prohibits that kind of change, Zelaya intended to violate the constitutional order and therefore should be immediately removed from office (an argument they claim is supported by Article 374 and 239 of the constitution but that, as we have seen, rests on a false premise). Moreover, they insisted that the constitution could only be amended by Congress, not through a Constituent Assembly (and that is what Article 373 establishes, that is, that the power of constitutional reform rests with the Congress, and Article 5 allows that body to subject amendments to popular ratification). Following this logic they have presented themselves as guardians of the constitution, pretending that there has only been a transition instead of a coup, and issuing an international arrest warrant against Zelaya. By now, popular protests have forced them to suspend the individuals rights guaranteed in the constitution that they were defending so vehemently.

Zelaya's argument for insisting in celebrating a referendum that had been declared illegal by several public institutions can be summarized as follows (for an analysis of these arguments, see here). First, the referendum (which he insisted rested on Article 5 of the constitution, which establishes the right of the people to be consulted about important issues) was non-binding, and that meant that it was equivalent to a public opinion poll and therefore there was simply no legal justification for it being declared illegal. Moreover, citizens were not even asked about re-election, but about the adoption of a new constitution through a Constituent Assembly. Zelaya also rested in the precedents from countries like Colombia and Venezuela, who adopted new constitutions through constituent assemblies even when their old constitutions did not allow for such form of constitutional change. Nevertheless, both the Colombian and Venezuelan Supreme Courts (in 1991 and 1999, respectively) determined that the people always retain the right to exercise their constituent power through a democratically elected Constituent Assembly regardless of what the ordinary amendment process contained in the constitutional text establishes. Finally, it is a generally accepted principle in contemporary constitutional theory that the limits to the power of constitutional reform included in a constitution (the cláusulas de intangibilidad) only operate against the constituted powers (that is, they limit Congress' amending power), but never against the people in the exercise of constituent power, which is considered unlimited. In my view, and regardless of other criticisms that one may have, President Zelaya had, and has, the best arguments.

I would like to end by briefly considering a truly unique cláusula de intangibilidad contained in the Constitution of the Commonwelth of Puerto Rico, one that is directly related to our political status as well as to our possibilities of convening a true Constituent Assembly. The clause is contained in the second sentence of Section 3, Article VII and it reads as follows: “Any amendment or revision of this constitution shall be consistent with the resolution enacted by the applicable provisions of the Constitution of the United States, with the Puerto Rican Federal Relations Act and with Public Law 600, Eighty-first Congress, adopted in the nature of a compact”.

The principal objective of this provision is to ensure that Puerto Rico would not attempt to unilaterally modify its relationship with the United States through constitutional reform. For example, according to the clause, Puerto Rico would not be able to include in its constitution (even after carefully following the amending procedure established in Article VII), a provision that states: “Only those laws adopted by the Puerto Rican Legislative Assembly will apply in Puerto Rico”. Such a provision would be contrary to the Puerto Rican Federal Relations Act, which mandates the application of U.S. laws in the island. It is interesting to note that the original draft of the constitution that was sent to U.S. Congress did not include the cláusula de intangibilidad quoted above, but the U.S. Congress required its inclusion under the threat that otherwise Article VII would lack any legal effects (for a more detailed analysis, see here).

Nevertheless, if we take seriously the Colombian and Venezuelan precedents, as well as the arguments advanced by Zelaya, we begin to understand that the clause quoted above cannot have the power of placing limits on the the people's constituent power. In other words, that if we develop the capacities for convening a true Constituent Assembly, we would be in a position to alter and re-create our constitutional order without being subject to any legal limits and that would include the power to unilaterally modify our relationship with the United States toward independence.

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