The constitutional fracas in Honduras is attracting a good deal of attention from comparative constitutional scholars, and deservedly so. One aspect of the entire mess that appears to have largely escaped attention–but raises a number of important questions with ramifications far beyond Honduras itself–is the relationship between domestic and supranational constitutional law.
Articles 19 through 21 of the Interamerican Democratic Charter, to which Honduras is bound by virtue of its membership in the Organization of American States (OAS), condemn any “unconstitutional alteration” or “unconstitutional interruption” of a “constitutional regime that seriously impairs the democratic order in a member state.” The Charter provides for various (diplomatic) actions that the OAS and its member states can or must take in response.
This sort of language – namely, a reference to “constitutionality” under domestic law, in a supranational legal document that itself possesses vaguely constitutional status – opens the proverbial can of worms. Here’s just one of those worms.
Who decides whether an “alteration” or “interruption” is “unconstitutional”? Presumably the relevant source of constitutional norms is the domestic constitution. And Article 184 of the Honduran Constitution does purport to give the Honduran Supreme Court “exclusive” authority when it comes to the constitutionality of laws.
But does that really settle the question of whether the “alteration”/”interruption” is “unconstitutional” for purposes of the Charter? It’s trivial, and only to be expected, for the leaders of a coup to install a puppet court to provide their actions with the imprimatur of legality. In that event, is the OAS really supposed to simply accept what the domestic court says, because the domestic constitution confers interpretive supremacy upon the domestic court? If so, wouldn’t the Charter be defeated by precisely the conditions that it is intended to address?
On the other hand, if domestic constitutional law does not conclusively resolve the Kompetenz-Kompetenz question and the OAS retains the right and/or obligation to “pierce the veil” of a sham court (so to speak), then there must be some standard for judging the adequacy of the domestic court, no? If so, what would that standard be, and what would its legal basis be? Do documents like the Charter necessarily presuppose the existence of supranational constitutional norms that may refer to domestic constitutional norms, but have a life and meaning of their own?