Miguel Estrada: 'Honduran Ouster of Zelaya was Constitutional'

A nationally-known constitutional lawyer who is also a native of Honduras said yesterday (July 15th) that the Honduran military and Supreme Court acted fully in accordance with that country’s constitution in removing leftist President Manuel Zelaya last month.

“And public opinion is looking at it the wrong way,” said Miguel Estrada, adding that the U.S. embassy in the capital city of Tegucigalpa did not serve the Obama Administration well in reporting the ouster and deportation of Zelaya June 28th.  He said that the information available that day led many in the U.S. “to conclude this was an old-fashioned coup and democratic order was broken” and, as a result, the Obama Administration made moves that were “uncautious.”  

 A past editor of the Harvard Law Review and former federal prosecutor, the 47-year-old Estrada is best known for his nomination to the DC Court of Appeals in 2001 and his request that it be withdrawn  two years later after Senate Democrats denied him a confirmation vote.   In appearing today at the House Foreign Affairs Committee offices to explain the ouster of Zelaya before House Members and reporters, Estrada was introduced as “a true patriot” by Rep. Ileana Ros-Lehtinen (R-Fla.), the ranking Republican on the Foreign Affairs panel.

Read Article 239

As in Mexico, a single term for a President is the law of the land in Honduras.  Reading from a copy of the 27-year-old Honduran Constitution, legal scholar Estrada cited Article 239 that any president who so much as proposes amending the document to permit re-election “must immediately cease the discharge of their duties and shall be disqualified for ten years from the exercise of any public function.”

He also noted that “the constitution does not allow for impeachment or immunity of elected officials.  As of 2004, no immunity can protect a President from arrest.”  

Although amending the constitution is permitted through a referendum or a “supermajority” in the Congress, Estrada explained, there are certain things that cannot be changed: “one is the borders of Honduras and the other is the rules that limit the President to a single four-year term.”  

The issue of whether Zelaya violated the law and was thus subject to removal from office had been going back and forth since March, when the lameduck President began suggesting a  convention to rewrite the constitution. Zelaya, noted Estrada, “is not an idiot” and knew that an entirely new constitution was the only way to upend the re-election ban (precisely what Hugo Chavez did in Venezuela in order to seek re-election).

The Honduran President also began pushing for a referendum on whether a new constitutional convention should be held.  But when the Honduran attorney general secured a court order halting the referendum, Estrada said, “Zelaya announced the voting would go forward anyway but called it an ‘opinion poll,’” said Estrada.

After the ballots (which Estrada said he understood were printed in Chavez’s Venezuela) were impounded, Zelaya gathered a group of supporters, led the group to seize the ballots, and vowed to hold the “opinion poll” June 28th.  

“But on June 25th,” said Estrada, “the Supreme Court  concluded [Zelaya] was engaged in conduct that is treason and issued a warrant for his arrest.”  The military then acted on the court’s order and arrested Zelaya under Article 272 of the Constitution which charges the armed forces with defending “the primacy of the Constitution, the principles of the universal sufferage, and alternation in the exercise of the Presidency of the Republic. [italics added].”  

Underscoring the legality of the Zelaya ouster, Estrada recalled how the Honduran Congress (which is dominated by the deposed president’s own Liberal Party) met following his arrest voted overwhelmingly (122 to 6) to remove him from office.  Since Zelaya’s vice president had already quit to run for President in the November elections, Liberal floor leader Robert Micheletti was elected president by Congress.

But Did They Have to Deport Him in His PJs?

But Miguel Estrada also made it clear saying that “it was very hard to conclude” that the now-famous deporting of the pajama-clad Zelaya to Costa Rica was legal.  He noted that Article 102 of the constitution specifically says that Hondurans “may not be extradicted to any foreign state.”  

“They should have just put him in jail,” said Estrada.  (Rep. Ros-Lehtinen cited explanations from the Honduran military that Zelaya was deported to “prevent bloodshed;”  Estrada said it was also his understanding the generals believed “no jail would hold him” and they did not want their soldiers “to fire on a mob.”).

Emphasizing that the Obama Administration’s earlier insistence that Zelaya be returned to his home country as President would be a case of overriding Honduran law, Estrada also cited others not considered right or center-right who have reached the same conclusion.  Roman Catholic Cardinal Oscar Rodriguez, for example, who was considered a more liberal alternative for the papacy to Cardinal Josef Ratzinger (now Pope Benedict XVI) in 2004, recently said Zelaya’s ouster was lawful and democracy continues to operate in Honduras.  

While the deportation is difficult to explain and defend, Estrada said the Obama Administration should not “compound its earlier mistakes by cutting off aid to Honduras.  You can stand on principle, but you can still starve a country.”

White House Replies to Estrada: Actions in Honduras ‘Not in Accordance with Democratic Principles’

Little more than an hour after Miguel Estrada briefed reporters and Members of Congress on the legality of the removal of Honduran President Manuel Zelaya last month, the White House took issue with the constitutional lawyer and Honduran native’s conclusion that restoring the leftist former President to office would be a violation of that country’s constitution (see accompanying story). 

At the regular press briefing at the White House on Wednesday (July 15), I pointed out to Press Secretary Robert Gibbs that I had just come from the session with Estrada at the offices of the House Foreign Affairs Committee.  At that session, I told Gibbs, Estrada explained that the  Honduran military acted in accordance with law in removing Zelaya because Article 239 of that country’s constitution provides for the immediate removal of anyone from office who advocates re-election or changing the constitution.

Is the Administration’s position still to restore Zelaya to power, I asked Gibbs, and, if so, “is the President aware apparently that this would violate Honduran law?” 

“I don’t have a good understanding of the President’s understanding of Honduran law,”

Gibbs told me, “I can certainly check with someone at [the State Department].  Obviously, there are efforts under way with the Costa Rican President to come to some mediated solution diplomatically.  Our administration continues to believe that this can and should be done through these diplomatic channels peacefully. 

“But I don’t have anything, in all honesty, on the Honduran amendment.”

When I then asked Gibbs whether the President still wants President Zelaya restored to office for the remainder of his term (which expires at the end of the year), he said: “We continue to believe that the actions that were taken were not in accordance with democratic principles.”