Honduras Between Restoration and Legitimacy

The Honduran constitutional crisis continues to lurch toward its messy end. At the insistence of the international community, both sets of protagonists in the conflict agered to s set of extra constitutional actions that were meant to restore Mr. Zelaya to his office and ensure that the legitimacy of upcoming elections would be recognized. To that end, the Tegucigalpa/San José Accords provided that in return for Mr. Zelaya renouncing efforts to call for constitutional changes through a National Constituent Assembly (Paragraph 2), scheduled national elections could proceed in November (Paragraph 3), the armed forces would be restrained from interfering with the elections (Paragraph 4) and the international community would restore their economic and political cooperation (Paragraph 7). In addition, the accords provided for the establishment of a truth commission (Paragraph 6), which would be administered in large part, by elements of the interanational community (Paragraph 7).

The critical part of the bargain for the international community, though, was that Mr. Zelaya would be restored to office for the remainder of his term. But there was a condition to this last critical condition.

To achieve reconciliation and strengthen democracy, in the spirit of the subjects of the proposal for the San Jose Accord, both negotiating commissions have respectfully decided that the National Congress, as an institutional expression of popular sovereignty, in use of its authority, in consultation with the entities it believes pertinent such as the Supreme Court of Justice and in accordance with the law, resolve the issue regarding “restoring possession of the Executive Power to its status prior to June 28 until conclusion the current governmental period on January 27, 2010.”

The decision the National Congress adopts should establish a basis for achieving the social peace, political tranquility and democratic govern-ability the society requires and the country needs.

Id., at Paragraph 5.

But Brian Jackson recently reported:

The Honduran Supreme Court [official website, in Spanish] on Wednesday ruled that ousted former president Manuel Zelaya [JURIST news archive] cannot legally return to office. The court's decision [Reuters report] is a significant blow to Zelaya's prospects for regaining power. Under the so-called Tegucigalpa/San Jose accord [Honduras News materials], Zelaya would have been able to return to the office of president assuming Supreme Court approval and an affirmative vote by the Honduran legislature. The legislature's vote, originally scheduled for November 29th [Reuters report], has been moved back to December 2nd. It is not clear what effect the Court's non-binding opinion will have on that vote. Similarly, it is not clear how the decision will effect the results of the Honduran presidential election [Guardian report], scheduled for November 29th. Neither Zelaya nor current president Roberto Micheletti are on the ballot for that election.

Brain Jackson, Honduras High Court Rules that Zelaya Cannot Return to Power, Jurist, Nov. 26, 2009. And so the drama tat is the internationalization of Honduran constitutionalism continues to develop.

The object, now is clear. Both sides see the control of the Presidential office as critical to the survival of the successor regime. The Honduran regime currently in power means to game the accords to its advantage. To the extent that it can extend the process of implementation through January, it can deny Mr. Zelaya any time to effectively game the accords to remain in government after the end of his term in January or to engineer conditions that would suggest the illegitimacy of any successor president. See, e.g., Alexandra Olson, Costa Rica: Honduras Vote Must be Backed If Fair, StLToday.com, Nov. 27, 2009 ("Costa Rica promised Friday to restore ties with Honduras if its presidential elections are clean, joining other nations in rejecting ousted President Manuel Zelaya’s insistence that recognizing the vote would legitimize a June coup." Id.); George Vickers, The Sham Elections in Honduras, Foreign Policy, , Nov. 25, 2009 ("This election is taking place in a political environment contaminated by repression, violence, and fear. If the U.S. government recognizes the vote, it will grant the de facto regime led by former parliamentary head Roberto Micheletti a legitimacy it does not deserve; it will needlessly lengthen a crisis that is hurting Honduras, its people, and its prospects for real democracy; and it will harm the U.S. image in the region.")

To that end, both sides will play to the international community as arbiters of legitimacy through the mechanisms provided by the accords--the verification commission and ultimately the truth commission.

To achieve reconciliation and strengthen democracy, we stipulate the creation of a Verification Commission to verify commitments made under this Accord and those deriving from it, coordinated by the Organization of American States (OAS). Said Commission will be composed of two members of the international community and two members of the national community, the last two to be chosen, one each, by the parties [i.e., one by Micheletti and one by Zelaya].

The Verification Commission will be responsible for attesting to the strict compliance with all of the points of this Accord and will receive the full cooperation of Honduran public institutions for that effect.

Tegucigalpa/San José Accords at Paragraph 6. At the same time, the opinion of the Honduran Supreme Court serves as a reminder that ultimately constitutionalism remains a domestic issue. Unless the international community is willing to reconstitute the Honduran Supreme Court with members more in accord with internationalist sensibilities, the mandate of the international community and its reading of the Honduran Constitution may carry little weight with domestic jurists who owe no allegiance to any system but that over which they preside. Still, in this respect the members of the Honduran Supreme Court have an unlikely role model--the justices of the American Supreme Court. Medellín v. Texas, 128 S.Ct. 1346 (2008).

The Accord purports to be one among the leaders of the Honduran people and internal to Honduras--an expression, of sorts, of Honduran sovereignty guided by an international hand.

Taking into account that this Accord is the product of the understanding and fraternity of Hondurans, we vehemently request that the international community respect the sovereignty of the Republic of Honduras and fully observe the established principle in the United Nations charter of non-interference in the internal affairs of other States.

Tegucigalpa/San José Accords at Paragraph 8. Yet the agreement to settle the constitutional legitimacy of Honduras was made through and with the international community.

We take this opportunity to thank the International Community for its accompaniment and good offices, especially the Organization of American States and its Secretary General, Jose Miguel Insulza; the [diplomatic] Missions of Foreign Ministers in the Hemisphere; the President of Costa Rica, Oscar Arias Sanchez; the Government of the United States, its President Barack Obama, and his Secretary of State, Hillary Clinton.

Though relegated to a formal "acknowledgment,", when read together with the "begging" provisions of Paragraph 7, it suggests the locus of sovereign authority as shared. And, indeed, it has been clear that the international community has intervened, in part, because it thinks litrle of the Honduran Constitution itself. "It was the United States' own handpicked negotiator, Costa Rican President Oscar Arias, who called the Honduran Constitution "the worst in the world."" George Vickers, The Sham Elections in Honduras, Foreign Policy, , Nov. 25, 2009.

As such, it is possible to understand the Accords as creating an interesting polycentric governance framework. The Honduran Supreme Court is Supreme within its jurisdiction and in the interpretation of the Honduran Constitution. But the Constitution itself is subject to a set of framework limitations that are administered by an international body--the Verification Commission--which is constituted as an extra constitutional (and extra national) body with the authority to legitimate the actions of all constitutional actors. More importantly, it appears vested with the critical autority to legitimate the elections scheduled for the end of November.

The failure to comply with any of the commitments contained in this Accord, as verified and declared by the Verification Commission, will result in the activation of measures the Commission will establish for the transgressor or transgressors.

Accords, Paragraph 6. But action will require the complicity of both the international community and domestic actors. The reactions of both in the critical days between this action of the Honduran Supreme Court and the installation of a new government in January will tell us much about the efficacy and character of any transnational element in constitutionalism.