Is Honduras ready for a return to the community of nations? It has been almost two years since the forced removal of then-President Manuel Zelaya at the hands of the Honduran military. On June 1, the Organization of American States said yes, when it lifted the suspension of Honduras from the organization by a vote of 32 countries in favor and one against. Still, the question on everyone’s mind remains: Was there a coup d’état in 2009? Perhaps the better question to ask is: How can similar instability be avoided in the future in Honduras and elsewhere in the region?
Immediately after Zelaya’s removal, the United States, the United Nations and the OAS denounced the ouster as illegitimate and demanded Zelaya’s restoration, which triggered restrictions on foreign aid and trade. So this situation has had real-world effects on ordinary Hondurans.
Since then, the Obama administration has subtly backed away from its initial stance of absolute condemnation. Several months after Zelaya’s ouster, the State Department noted that it «recognized the complicated nature» of events leading to Zelaya’s removal. The following year, the U.S. resumed aid to Honduras, and Secretary of State Hillary Rodham Clinton urged the OAS to readmit Honduras into the organization, citing its «free and fair» election of President Porfirio Lobo in November 2009 and its establishment of a truth commission. This year, Clinton upped the ante by voicing «strong support» for Lobo and emphasizing the U.S. «commitment» to having Honduras readmitted to the OAS.
The truth commission asked us — a team of U.S. specialists in comparative constitutional law — to evaluate what had happened from a legal perspective and to propose fixes. What we found was a good deal more complex than the simple story of a coup or a justified removal. In our judgment, both Zelaya and those who removed him acted unconstitutionally.
To begin with, Zelaya violated Honduran law when he tried to hold a referendum asking voters whether they wanted to call a constituent assembly to rewrite the constitution. His foes claimed the goal was to extend his stay in office. The constitution, aiming to avoid dictatorship, restricts the president to a single term. Zelaya threatened the integrity of the constitutional order by ignoring numerous court orders that he desist from holding the vote, and by ordering the military rather than the Supreme Electoral Tribunal to supervise the process.
The institutions involved in removing Zelaya also acted in violation of the Honduran Constitution. Zelaya might have been constitutionally removed after a full judicial trial in front of the Supreme Court. But no trial took place. Instead, the military removed Zelaya from the country before any legal determination had been made. The legislature publicly claimed Zelaya had resigned, which he flatly denied, and the lawmakers otherwise lacked any legal authority to remove him from his post. Finally, the courts and other legal actors failed to act as effective arbiters during the crisis or as defenders of human rights in its aftermath. The ineffectiveness of judicial solutions paved the way for military intervention.
To prevent this sort of instability in the future, it is imperative that the people and institutions involved have better tools to avoid the two serious threats to democracy that manifested during the crisis and that have long plagued the region: military intervention in politics and executive overreaching. Honduras’ Constitution and laws should be reformed to safeguard against both of these risks.
The independence and powers of the judiciary need strengthening to protect the rights of citizens and to arbitrate institutional disputes. For example, a specialized constitutional court with the power to rapidly resolve controversies between different branches of government might have prevented the 2009 crisis from escalating. It is critical that judiciaries, rather than militaries, resolve constitutional crises. For this purpose, it is also important, in Honduras and elsewhere in the region, that constitutions be amended to make it clear that the military possesses no extralegal power to «save» the state in periods of crisis. Constitutional provisions that suggest such a savior role for the military must be eliminated.
Honduras also needs to place limits on the president’s capacity to pervert the constitutional order by, for example, putting institutional safeguards and limits around plebiscites and related devices that could be used to fundamentally alter the institutional order. It is desirable to require the assent of other institutions of government, such as the Congress and the courts, before the executive is able to consult the public for any exercise of direct democracy. Finally, it is important to ensure that both the grounds for removal of the president and removal procedures are clearly specified in the constitution.
The relative calm of the last two years in Honduras has brought with it the opportunity to engage in unpressured analysis of these issues. Reform is needed now because it would not be possible to make it happen under the pressures of a crisis. Honduras should seize the moment to make improvements that can help keep democracy safe in moments of crisis.
Noah Feldman, David Landau and Brian Sheppard, law professors at Harvard Law School, Florida State University College of Law and Seton Hall University School of Law, respectively.