The discussion of Honduras’ constitutional crisis has focused on the military coup removing President Zelaya and installing a replacement. The coup raises intriguing issues concerning the Constitution of 1982 and its attempt to avoid the problem of extending the executive term beyond constitutional limitations. As we have frequently written about on this site, executive “overstay” has been a major problem in Latin America, as well as many other jurisdictions in recent years.
Honduras has a four year presidential term, with a “trigger” clause designed to prevent just the type of referendum Zelaya was proposing. The relevant provision of the Constitution, Article 239, reads as follows:
“A citizen who has held the title of the Executive Power may not be President or a Designate. He that violates this provision or advocates its amendment, as well as those that directly or indirectly support him, shall immediately cease to hold their respective offices and shall be disqualified for ten years from exercising any public function.”
The language seems fairly clear, and leads one to question the near universal demand from the international community for Zelaya’s reinstatement. To be sure, one can recognize that the president violated Article 239 while still opposing the method of Zelaya’s removal. But a true coup d’etat would likely have installed a military ruler, which is also forbidden by the Honduran Constitution. and one wonders whether all the members of the UN General Assembly were so concerned about the actual constitution of Honduras, as interpreted by the Honduran courts, rather than the military intervention.
One can also question the wisdom of a single four year term for the presidency. In another very different context, South Korea has considered allowing for a second term for the presidency, since every occupant of the office has found himself a lame duck fairly soon after election. Notwithstanding the wisdom of Honduras’ approach, my view is that the text favors Zelaya’s opponents.