—David Landau, Florida State University College of Law & Brian Sheppard, Seton Hall University School of Law
The recent decision of the Constitutional Chamber of Honduras annulling a series of constitutional and legal provisions that prohibited presidential reelection and made that prohibition unamendable was a troubling one. The same political forces that previously ousted ex-President Manuel Zelaya in 2009 for allegedly attempting to call a Constituent Assembly to alter the no-reelection rule have now found that rule an impediment, and the Chamber has been used to cast it aside. The decision is somewhat reminiscent of a 2009 one from Nicaragua, where a Supreme Court controlled by President Daniel Ortega deployed the unconstitutional constitutional amendment doctrine to strike down term limits that prevented Ortega from remaining in power.
As ex-consultants to the Truth and Reconciliation Commission (on constitutional issues) that was formed in the aftermath of Zelaya’s removal, we are concerned by the continued elite manipulation of the Honduran constitution. In this post, we focus on two intertwined points: (1) the decision marks the end of a lost opportunity to achieve broader, positive reforms in the Honduran constitution, and (2) the decision uses standard tools of democratic defense like the unconstitutional constitutional amendments doctrine and international human rights law to undermine rather than safeguard the democratic order – in other words, it may be an example of abusive constitutionalism by court.[1]
The decision itself has been ably described elsewhere on this blog, so we will not give a lengthy description here. Important for our purposes is that the Honduran constitution contains three distinct regulations of the no-reelection issue. First, it contains a prohibition on presidential re-election within Article 239 of the Constitution. Second, in Article 374 it contains a prohibition on any amendment of the no-reelection Article. Finally, also in Article 239 it contains a provision stating that anyone who “breaks” the no-reelection rule or who “proposes its reform” shall “cease immediately” in their public posts and will be prohibited from serving in office for 10 years. Article 42, clause 5 adds to this provision by stating that the “quality of citizenship is lost … by inciting, promoting, or supporting the continuation or reelection” of the president. Thus, the constitution contains a no-reelection provision, an intangibility clause protecting the no-reelection provision, and a set of provisions limiting speech or advocacy around the reelection issue.
The Constitutional Chamber’s arguments mostly went to the last piece – it argued that the provision infringed rights provisions like the freedom of expression found elsewhere in the constitution and in international human rights law. But the decision held Article 239 inapplicable in its entirety (thus striking down the no-reelection law), and also held inapplicable the intangibility clause in Article 374 because the underlying object of its protection, Article 239, had already been stripped of legal effect. The decision completely eradicated the no-reelection rule that had been at the core of the 1982 constitutional project.
We note several interesting aspects of the Chamber’s decision. The first is the problematic process and context by which the decision was made. The decision was issued by the Constitutional Chamber of the Honduran Supreme Court, four of whose five justices were illegally removed and replaced by the Congress in late 2012. Further, one judge on the Constitutional Chamber allegedly tried to retract his vote the day after the opinion was issued and instead issue a dissent, but this was not allowed by the rest of the Chamber. Had one justice dissented, the issue would have been heard by the entire Supreme Court, rather than just the members of the Constitutional Chamber.
Second, the decision is an odd and perhaps unprecedented use of the unconstitutional constitutional amendment doctrine. The doctrine that an amendment to a constitution can itself be unconstitutional because it clashes with the “basic structure” of the constitution or “substitutes” the constitution’s basic structure is now accepted in a number of constitutional systems both inside and outside of Latin America. But the Honduran Constitutional Chamber deployed this sort of reasoning not against a constitutional amendment, but against a piece of the original 1982 constitution. Article 239 was amended in technical respects by subsequent decrees, but the core aspects of the existing provision are identical to those in the original 1982 constitution. In theory, there might be justifications for such a maneuver, but the standard justifications of the unconstitutional constitutional amendment doctrine do not seem to apply. For example, the doctrine is often defended as a protection for the “original constituent power” of the people to ensure that the power exercised by political institutions who have been delegated amendment power is not abused. But that justification makes no sense when the doctrine is deployed against a part of the original constitution itself.[2]
Third, the conclusion that these pieces of the Honduran constitution actually are unconstitutional constitutional “amendments” seems difficult to defend. Courts applying this doctrine often combine elements of an internal and external perspective. An internal perspective would focus on the clash between the provisions themselves and central elements of the domestic constitutional project. The 1982 constitutional project contained the prohibition on reelection as one of its central elements, and indeed reinforced this prohibition with two further protections: an intangibility clause forbidding amendment of this clause and a rule even limiting advocacy or discussion of changes to the prohibition. Rather than being in tension with the core of the 1982 constitution, then, the no-reelection rule is the core.
A court deploying a more external perspective would tend to ask whether the provision at issue is a threat to basic democratic values, as instantiated by democratic systems within the region and around the world.[3] Here too, the decision is puzzling. A no-reelection rule is better described as a protection of democracy rather than as a threat to it. Particularly within the presidential systems of Latin America, there is some history of powerful leaders overstaying their terms or coming to power and never leaving: term limits are generally defended as a safeguard against that threat. The intangibility clause prohibiting amendment of the provision is also best described as a safeguard against abusive constitutional change. It is not uncommon for constitutional designers to safeguard sensitive values or provisions by making them particularly difficult, or even impossible, to change.
This leaves the set of provisions limiting discussion and debate of changes to the rule. By comparative perspective this is clearly the most peculiar part of the no-reelection rule, but we are still doubtful that it constitutes a sufficient threat to core democratic values to be an unconstitutional part of the constitution. And even if it were, it provides no support for striking down the more basic parts of the rule: the prohibition on re-election itself and the prohibition on amendment of the no-reelection provision. As noted above, the Court went out of its way to sweep away all traces of the no-reelection principle.
These problems in the Chamber’s legal reasoning seem to leave, as the core of its decision, a deeply pragmatic judgment that Honduras is better off without the intangibility provision in place. The Constitutional Chamber cited the final report of the Commission on Truth and Reconciliation for the proposition that intangibility clauses can have troubling practical consequences because they cut off avenues for formal change of contested constitutional provisions. It may be that other forms of protection short of intangibility – say heightened super-majority requirements and restrictions on timing – entrench sensitive provisions while leaving open the possibility of change. But the effect of the Chamber’s decision is to abolish all presidential term limits in a high-risk environment.
The Chamber argued that the intangibility provision may have served a necessary purpose at one time, but was no longer needed. Given that the country was destabilized by a constitutional crisis in 2009 (when President Zelaya allegedly sought to call a Constituent Assembly to extend or abolish term limits), and given other recent examples of executives seeking or succeeding in scaling back term limits (in Venezuela, Ecuador, and Colombia, for example), the argument that the safeguards at issue are obsolete is a difficult one to make.
Further, the Chamber’s decision has probably reduced the possibility of meaningful and profound constitutional change in Honduras. When, along with Noah Feldman and Leonidas Rosa Suazo, we authored our report, we highlighted a series of potential weaknesses in Honduras’s constitution that were directly related to the 2009 removal of Zelaya. We noted, for example, that the constitution could be amended to lend clarity to direct democracy initiatives then before Congress, that it did not adequately map out a chain of authority for significant constitutional acts like impeachment, and that it failed to provide a means for wholesale constitutional change. This is to say nothing of other structural and substantive weaknesses of Honduras’s constitution that had little to do with the 2009 incident.
The trauma surrounding the 2009 incident could at least have catalyzed broad and necessary constitutional reforms. Even if the drafters of a new Honduran constitution would have been motivated largely by the prospect of extending the presidential term, they likely would have revised other important aspects of the Honduran legal system as well. The Constitutional Court has perhaps foreclosed any potential opportunity by dealing with the term limits issue in isolation.
Finally, the decision is a reminder that the state-of-the-art constitutional designs and doctrines designed to protect against abusive constitutionalism are not fail-safes, and indeed can be used to undermine rather than to protect the democratic order. Recent experience from within the region is not heartening. In Ecuador, the Constitutional Court recently allowed President Correa to use the least demanding amendment procedure to eliminate all term limits, despite fairly clear constitutional language requiring that a more difficult procedure be used for changes of this type. And now in Honduras, as previously in Nicaragua, the Constitutional Chamber has turned both the unconstitutional constitutional amendments doctrine and international human rights law against their core purposes. Rather than being used to protect democracy, each was used to create a hole that may in the future allow for substantial democratic erosion. The threat of executives extending or eliminating term limits to perpetuate their power and weaken horizontal checks is not a hypothetical risk in Latin America, but one that has been validated in recent regional history. While the Honduran elite have achieved a change they have long sought, Honduran constitutionalism has again suffered a potentially serious blow, this time at the hands of its own Supreme Court.
Suggested citation: David Landau & Brian Sheppard, The Honduran Constitutional Chamber’s Decision Erasing Presidential Term Limits: Abusive Constitutionalism by Judiciary?, Int’l J. Const. L. Blog, May 6, 2015, at: http://www.iconnectblog.com/2015/05/the-honduran-constitutional-chambers-decision-erasing-presidential-term-limits-abusive-constitutionalism-by-judiciary/
[1] See David Landau, Abusive Constitutionalism, 47 UC Davis L. Rev. 189 (2013) (defining abusive constitutionalism as the use of the tools of constitutional change to undermine democracy).
[2] The Chamber purported to be applying the instrument of unconstitutionality review, which is regulated by article 76 of the Law of Constitutional Justice. This article allows review to be taken against laws, treaties, or “constitutional reforms,” but perhaps unsurprisingly says nothing about the text of the original constitution itself.
[3] See Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, __ Int’l J. Const. L. __ (forthcoming) (arguing that judges should deploy the unconstitutional constitutional amendment doctrine when they perceive serious threats to the democratic order, and validate those threats by surveying transnational practice and experience).
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