Tuesday, September 22, 2009

Democracy Part XVIII-- Constitutional Caudillismo: End Games in Honduras

There is something refreshing about international relations when old patterns are embraced by actors new to their roles. The freshness intensifies where those patterns also hearken back to more traditional days yet point forward to new notions of constitutional hierarchy.

So it is now with the rapid pace of events in Honduras. Hondurans Surround Brazil Embassy, BBC News Online, September 22, 2009. In this case, one is confronted with new developed states, Brazil in particular, now warming to their role as a world stage actor (at least in Latin America), asserting its power to intervene directly in the internal affairs of Honduras. But as appropriate for the times, it is doing so only as a primus inter pares of the community of nations that has condemned the Honduran state apparatus for taking a position on the Honduran Constitution different from that held by the rest of the world (or at least that part of the world that counts in power politics). It seems that Mr. Zelaya was secreted back inot Honduras and parked within the Brazilian Embassy, there to call for a revolutionary overthrow of the legislature and judiciary and his reinstatement as President, now appropriately enough, operating as the sole authority within Honduras. The effort to democratically install a dictator was cleverly prepared. The Brazilian ambassador and key personnel were conveniently away when the delivery of Zelaya to the embassy was effected.
The Brazilian authorities recognise that their staff in Honduras are caught up in a very delicate situation. The ambassador is back in Brazil, there is only a charge d'affaires and a very small team, with not much security. Lights, water and telephones were cut off on Monday and the only contact is by mobile phone, Brazilian media report. Power is only being maintained using a generator.
Gary Duffy, Analysis, in Hondurans Surround Brazil Embassy, BBC News Online, September 22, 2009. And thus orchestrated, the pressure for "negotiation" was renewed. "Speaking in New York, Brazilian President Luiz Inacio Lula da Silva repeated his position that a "negotiated and democratic solution" must be found. He urged Mr Zelaya to "be very careful not to allow any pretext for the coup plotters to resort to violence" - and warned Honduran authorities against trying to enter the embassy. " Id.

Mr. Zelaya is relying heaviuly on international intervention. "Zelaya told Al Jazeera by phone that he had returned to "solve problems in an attitude of peace, without weapons, without violence"."I hope that the international community will support me," he said." Zelaya Return Draws Honduras Curfew, Al-Jazeera.com, Sept. 22, 2009. Yet the possibility oi violent overthrow was not far from the surface of events orchestrated through the Brazilian Embassy. ""I am calling on the people of Honduras to come to the embassy to protect me because there is word that [the interim government] will arrest me and there is word that they will try to assassinate me."" Id.

In these actions, to the extent that it foments a "presidential" coup, of course, Brazil imitates the United States of a generation ago. Perhaps Brazil will be more successful in reinstating Mr. Zelaya, now in his role as Constitutionally legitimated dictator, than the United States had with the efforts to impose a regime change in Venezuela several years ago. More interesting, it suggests that Brazil seeks to step into the shoes of the United States as the power broker in Latin America. There are significant indications that Brazil is already building an institutional framework to build a "Lula Doctrine" to replace (but not change the substance) of the old Monroe Doctrine. Unasur's recent intervention in the bad relations between Venezuela and Columbia over Columbia's decision to permit American bases to be maintained in its territory is a recent case in point. "Brazilian President Luis Inacio Lula da Silva suggested a meeting with the members of the Union of South American Nations, or Unasur, and U.S. President Barack Obama to discuss a proposed increase in U.S. military presence in Colombia, a move that has made some South American leaders uneasy." Brazil's Lula Proposes Meeting With Obama On Colombian Bases, Wall Street Journal, Aug. 29, 2009. At an extreme, it points to a new intra-ethnic colonialism in Latin America, with Brazil playing the role of dominant power south fo Mexico.

Those who read these essays know that I have been uneasy about the global efforts to force the legitimately and democratically constituted Honduran legislature and judiciary to undo their constitutional order to reinstate the former president, Mr. Zelaya, to an office that both other branches of the democratically constituted state have determined violated in fundamental ways his office. And this is done, as is only proper, in the name of democratic principles--not those of Honduras, to be sure, but those representing the interests of larger and more powerful states in the region (Brazil, Venezuela and Cuba), and others around the globe. See Larry Catá Backer, Judging the Honduran Constitutional Order Beyond the State—An Interrogation of the View From the Transnational Sector, Law at the End of the Day, Aug. 29, 2009; Larry Catá Backer, Reflections on the Declaration of Independence: From a Crisis of U.K. Constitutionalism in the Americas to a Global Constitutional Crisis in Honduras Law at the End of the Day, July 4, 2009.

But, of course, that sort of response to the ouster of the President of Honduras has reflected a noticeable tendency to caudillismo in global democratic discourse. Where once the object of that discussion was the horizontally equivalent dignity of the usual three branches of government--executive, legislative and judicial--there now appears to be a move toward a more vertically oriented understanding of the hierarchy of authority within democratically constituted states. Within this new understanding the President now stands above the legislature and judiciary in dignity. Once, in the earliest era of modern constitutional discourse, the great fear was of legislative overreaching, and much effort was devoted to curtailing and taming the power of the legislature int he face of relatively weak administrative presidents. That was certainly the case in the United States. The early 19th century was as much an era of Henry Clay, John C. Calhoun, Daniel Webster and their ilk, as it was that of Andrew Jackson and James Madison. Strong presidents and dictatorship was the rule elsewhere in young democracies--from France to the states of Latin America. But that changed dramatically during the most recent "age of great men"--Franklin Roosevelt, Josef Stalin, Adolf Hitler, Hideki Tojo, and Winston Churchill. The exigencies of war and the requirements of modern bureaucratic state apparatus has moved what appears to be common understanding of democratic organization from the legislature to the executive as the principal embodiment of the democratic ideal in the state.

The cult of personality now haunts democratic states. It is for that reason, perhaps, that Lula da Silva's Brasil, like Barack Obama's United States could join Raul Castro's Cuba and Hugo Chavez's Venezuela, in condemning the temerity of a legislature and judiciary to oust a fellow executive from his position as embodiment of the democratic state of Honduras. The focus on the errors of the legislature and judiciary in the process of removal and exile, rather than the great errors of anti constitutional actions by Mr. Zelaya are emphasized. "The US has backed Mr Zelaya during his exile and criticised the de facto leaders for failing to restore "democratic, constitutional rule" and the Organization of American States (OAS) has demanded Mr Zelaya's reinstatement." Ousted Leader Returns to Honduras, BBC News Online, Sept. 21, 2009. The fact that the interim government means to go forward with elections, elections that would have ended Mr. Zelaya's tenure make little difference. "Mr Micheletti has vowed to step aside after presidential elections are held as scheduled on 29 November. But he has refused to allow Mr Zelaya to return to office in the interim." Id. Indeed, I suspect that the effort now was meant to disrupt the planned elections in November. And even if the elections go forward, Mr. Zelaya and his supporters means to recast them as illegitimate. As a consequences perhaps he means to return to ofice. That would clearly represent an overthrow of Honduran constitutionalism but that may make no difference to the international community fixated on the president rather than on the cpnstitution of the state he purports to embody. Zelaya Return Draws Honduras Curfew, Al-Jazeera.com, Sept. 22, 2009.
"Micheletti, said "law and order prevail" in the country despite Zelaya's return and urged citizens to "remain calm". But he declared a curfew and accused Zelaya of trying to disrupt elections planned for November. "I cannot reach another conclusion other than that he is here to continue hampering the celebration of our elections next November 29 as he has done so far, as well as his followers for a few weeks now."But his presence in the country does not change the commitment of all Hondurans with regards to the electoral process," he added. Id.
Peace is to be regained only by the reinstatement of the princeps democraticus, the President to his office and dignity. "Venezuelan President Hugo Chavez today congratulated the democratically elected president of Honduras, Manuel Zelaya on his "heroic" return to his homeland eighty-six days after he was ousted by a military coup on June 28. Chavez also called on the coup regime, headed by Roberto Micheletti, to peacefully hand over power to Zelaya." Kiraz Janicke, Venezuela’s Chavez Calls on Honduras Coup Government to Peacefully Hand over Power to Manuel Zelaya, Venezuelaanalysis.com, Sept. 21, 2009.

And, more ironically, the temptation of larger states to experiment within smaller states they might be able to control also appears to have made a come back of sorts. Honduras is as easy a case for experimentation in the deployment of principles of transnational constitutionalism now directly applied by an organized community of nations acting through international organizations, as the Spanish Civil War proved to be an excellent venue for the testing of modern theories of warfare and population control. Yet, principles of transnational constitutionalism are also worthy of further development. See Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, Mississippi Law Review, Vol. 27, 2008. Mr. Zelaya's exile was likely a violation of Honduran constitutional protections. But his removal might have been procedurally infirm but substantively supportable. That might have been a matter of Honduran constitutional law. But no longer. This is a poor case on which to build the foundations of transnational constitutionalist order. But we will never know,. Yet this freewheeling effort against one of the least powerful states on the planet hardly makes a convincing case for the evolving institutional framework of transnational constitutionalism. From the perspective of China, the United States, or even Brazil, this is hardly the type of interference that these states would tolerate. But they are large, and aggressive. Still, this may serve as a template for dealing with small and weak states all over the world in the future. That would be a shame, if only because it might serve to unalterably connect the worthy project of transnational constitutionalism to neo colonialist aspirations of rising states.

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