Throwing out the Baby with the Bathwater

Senator John “it wasn’t my medals I threw away in protest when it wasn’t cool to be a veteran of the Vietnam war…it was some other guy’s” Kerry and Representative Howard “He.Could.Go.All.The.Way” Berman (Ok, not THAT Berman, but I thought it would be funny), are asking that the Library of Congress Congressional Research Service change it’s determination about whether the removal of Ex-President Zelaya was legal.

The basis for this demand? Apparently, there is a mistake in the CRS’ report. They included, in support of the Honduran Congress’ power to remove the President, a Constitutional provision that was apparently repealed in 2003.

What they conveniently fail to mention is that this provision was only a supporting factor in their determination. There were plenty of other provisions to rely on that infer the same power.

From the Report:

III. Did the Honduran National Congress properly approve Articles of Impeachment of the President as provided for by the Honduran Constitution?

As stated above, the concept of the political procedure known as impeachment, previously contained in Article 205, Section 15 of the Honduran Constitution, was repealed by Decree 175-2003.29 The Constitution does not contain an express provision giving the National Congress the authority to remove a President from office. Nonetheless, the National Congress apparently used several other constitutional powers to remove President Zelaya from office. Among them are the following:

• Article 205, Section 20 of the Constitution gives the National Congress the power to “approve or disapprove” the administrative conduct of the Executive and Judicial Branches, the National Tribunal of Elections, and many other high officers of the State;

• Article 218, Section 3 reaffirms this power by stating that the decrees issued by the National Congress in reference to the conduct of the Executive Branch cannot be vetoed by the President;

• Article 205, Section 21 authorizes the National Congress to appoint special commissions for the investigation of matters of national interest;

• Article 208, Section 5 grants power to the Permanent Commission of the National Congress to receive complaints of violations of the Constitution;

• Article 205, Section 10 grants the power to the National Congress to interpret the Constitution;

• Article 218, Section 9 reaffirms the Congressional power to interpret the Constitution by stating that Congressional resolutions issuing constitutional interpretations cannot be vetoed by the President; and

• Article 205, Section 12 gives the National Congress the power to receive the constitutional oath of the President and Vice-President of the Republic and to fill their vacancies where any of the officers were absolutely unable to discharge the powers and duties of the office [falta absoluta].30

According to Kerry et. al, the entire conclusion of the report is wrong because it relied on a section of the Constitution that was stricken. I had to do a little research to find the details, but apparently, they are relying on this editorial as the basis for their contention:

Dubious legal reasoning aside, it is doubtful that the Honduran Congress has the power to interpret the country’s constitution. In fact, one of the provisions the report cites to support the existence of such authority does not exist. The provision in question–Article 218, section 9 of the constitution–was struck down by the Honduran Supreme Court more than six years ago.

Basically, the entire editorial is based upon the author’s opinion about what the Constitution allows, and hinges on the fact that the CRS mistakenly cited a provision of the Constitution that had been repealed.

If true, I would agree that the CRS should issue a correction and remove the references to Article 218, Section 9, but that hardly invalidates their entire point. In fact, the CRS report goes on to list the relevant sections of the Constitution to this matter, in order of importance.

Article 242 of the Constitution, which provides the line of succession for the Presidency, and Article 205, Sections 12, 20, and 10, and Article 218, Section 9, referred to above, are translated below due to their relevance (the order in which they appear is based on the relevance of the subject matter): [emphasis added -ed]

And where does Article 218, Section 9 fall in the order of importance? Dead last:

Article 242. In the temporary absence of the President of the Republic, the Vice- President shall replace him in his functions. If the absence of the President were permanent, the Vice-President shall exercise and hold Executive Power for the time that remains to complete the constitutional term. But if the Vice-President were also permanently absent, the Executive Power shall be exercised by the President of the National Congress, and, where the President of the National Congress is absent, by the President of the Supreme Court, for the time that remains to complete the constitutional term.31

Article 205. The following Powers are assigned to the National Congress:

Section 12: To receive the constitutional oath of the Office of President and Vice- President of the Republic [who have been] declared “elect,” and the rest of the officers for whom it chooses to grant leave and to accept or reject their resignation and to fill the vacancies in the case where any of the officers were absolutely unable to discharge the powers and duties of the office [falta absoluta].32

Section 20: To approve or disapprove the administrative conduct of the Executive Power, the Judicial Power, the Electoral Supreme Tribunal, the Comptroller General of the Republic, the Attorney General of the Republic, the Environmental Attorney Office, the Chief Prosecutor, the Ombudsman, the National Registry of Persons, and decentralized and auxiliary institutions of the State.33

Section 10: To interpret the Constitution of the Republic in ordinary sessions in a single term, with a two-thirds vote of all its members. Articles 373 and 374 of the Constitution may not be interpreted through this procedure.34

Article 218. Authorization [from the Executive] shall not be necessary, nor shall the Executive Power be entitled to veto the following cases and resolutions: …

Section 9: In the interpretations to the Constitution of the Republic enacted by the National Congress.35 [emphasis added -ed]

The offending section, even if it is true that it was stricken from the Constitution, was only listed as a “reaffirmation” of a power previously established in other articles. It was a supporting article, not one that the CRS evaluation hinged upon.

Furthermore, the editorial completely ignores the role of the Supreme Court in this whole process, the fact that the Honduran Supreme Court accepted the legal case and found sufficient evidence to order Zelaya’s arrest.

To contend that the opinion of the authors of an editorial, and the erroneous inclusion of one minor supporting article in the CRS opinion completely invalidates the conclusion of that opinion is the height of revisionism and political grandstanding.

Should the CRS revise the report to remove mention of the erroneously included Constitutional article? Certainly; but to demand that the CRS change the conclusion drawn as a result of that minor error is ridiculous.

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