The Central American Right to Rebel: why it served the 1982 Revolutionary Junta in Guatemala but could not save Zelaya:

The first de facto right to resist in the Central American region was introduced by El Salvador in its constitution of 1886.(1) This right was subsequently expanded upon in 1945, and reached its present form in 1950.(2) Since that time many neighboring countries such as Honduras and Guatemala have likewise adopted similar provisions as have culturally similar Caribbean nations such as Cuba and Venezuela.

While, as I have previously written on Constitutionmaking.org, constitutional rights to resist are relatively common worldwide, Central America versions are uniquely forceful in their wording – guaranteeing nothing short of a popular “right to insurrection.” The existence of this right has in turn been utilized at various times been to justify (or attack) the existing order following regime transitions of questionable constitutional validity.

To review, Tom Ginsburg, Mila Versteeg and myself have found that, generally speaking, RTR provisions are almost universally retained and often expanded upon in subsequent constitutions once they have been successfully introduced. This has been the case in Central America where all of these countries have continued to retain the existence of supra-constitutional rights and duties up to the present day. We have likewise found it useful to differentiate between a Right to Resist, which essentially attempts to incorporate a country’s citizenry into a Weingastian type equilibrium through recourse to a natural law justification for either individual or collective action; and a “Duty to Rebel” which works counter to this model by either justifying a previous violation of the constitutional order or potentially providing cover for a regime which feels it is likely to come under attack for a lack of legitimacy or be otherwise overthrown by internal or external enemies. While the 1886 version of the right to rebel would have likely fallen within the first interpretation, the ongoing carrousel of coups and civil strife that affected the region throughout the 20^th Century eventually saw the “right to insurrection”, a type of regime insurance policy, as the norm.

Guatemala implemented the right to resist in 1945,(3) following a coup, and expanded its purview in 1965 following another coup.(4) Upon seizure of executive power by the army in 1982, the victorious military junta under Gen. Efrain Rios Montt, set in place an abrogated constitution that invoked RTR as a justification in its preamble: “The Army of Guatemala, in fulfillment of its obligations to the Nation, echoing the feelings of the people and seeking to safeguard the national honor, deposed the ruling regime, the outgrowth of a system completely oblivious of legality that brought the country into a state of anarchy and international isolation which with disregard of human life, of honesty in the management of public affairs, and of the rights of citizens, culminated in an election vitiated by fraud.” While in the eyes of much of the World the post-1982 Guatemalan regime remained illegitimate, and its penchant for genocidal violence and scorched earth policies did much to bolster this view, the regime itself and its successors survived for some time. When a new full constitution was set up under the Junta’s control in 1985, the right to resist was likewise kept intact in Articles 5 and 45.

In the Honduras case, the “right to insurrection” was first set up in 1957 as a check upon the authority of the executive in the “Right to Resist” model: Art. 4. No immediate reelection (alternabilidad) in the exercise of the Presidency of the Republic is compulsory. Violation of this rule gives the right to popular insurrection. Later, following the creation of a new constitution during a period of Democratic transition, a new offshoot of the right, Article 3, was established: Art. 3 – No one owes obedience to a usurping government nor to those who assume office or public service by force of arms or by using means or procedures which violate or ignore the provisions established by this Constitution and other laws. The acts adopted by such authorities are null. The people have the right to resort to insurrection in defense of the constitutional order.

Both of these provisions were to become the focus of a good deal of attention when, on on June 28, 2009, the Honduran Supreme Court of Justice issued an arrest order for President Zelaya on the grounds that he had violated, and was continuing to violate, the Honduran Constitution. The Honduran military complied with the judicial mandates, seizing Zelaya and escorting him to a plane that took him to Costa Rica. The relative validity of Zelaya’s expulsion has already been discussed at length on comparativeconstitutions.org, and several external sources, notably the Library of Congress and the U.S. Department of State have likewise contributed their own informed perspectives. As such, I will not go be going into my own views as to whether Zelaya’s ousting was constitutionally proper or otherwise.

For our purposes it sufficient to note that the Micheletti government did not invoke Article 3 as a justification for their dramatic seizure of governmental control, rather they focused on the successor provisions of 1957’s Article 4 as a means of garnering legitimacy.

Zelaya did, for his part, turn to Article 3 however as can be seen from the following text in a 2009 open letter to the Presidents of the Americas, and the leaders of the Organization of American States and the United Nations:

“At this moment in Honduras we are in a de facto State. There is no Constitution. Nor are there Constitutional powers because they have been destroyed by force by the military Coup d’Etat on that ominous day of June 28, 2009.

The Constitution of the Republic establishes in Article 3: “No one owes obedience to an usurper government, nor to those who occupy public positions or jobs by the force of weapons or using means or procedures that bankrupt or fail to recognize what the Constitution and the law establishes. Those actions by so-called authorities are null and void. The people have the right to insurrection to defend the Constitutional order.

In reading that article, you can understand that the Honduran people are legally empowered to act using all means, styles and forms that they consider necessary to restore democracy.”

Thus, while Article 3 thus became a rallying point for Zelaya supporters worldwide – the Micheletti Government ignored the provision for the most part, and the existence or applicability of the right was never explicitly addressed either by the Supreme Court, the Presidency or by the Honduran legislature. Notably, when the Micheletti government, faced with rising public dissent and protests, controversially suspended four constitutional guarantees for a 45-day emergency period, Article 3 was not among them.(5)

Eventually, the successor government in Honduras was able to consolidate power and ease the state into a new election wherein Micheletti stood down and relatively normal constitutional processes were reestablished. It is perhaps telling however, as pertains to the usefulness of these clauses generally, that RTR and DTR provisions seem to have been most successfully invoked (such as in Guatemala, Cuba or the Honduran Article 4 RTR) only by the successors governments of fallen regimes. In contras we have been unable thus far to find any historical examples of a fallen leader such as Zelaya, being able to successfully harness a constitutional right or duty of this nature so as to recuperate power and legitimacy.