The Honduran Supreme Court Renders Inapplicable Unamendable Constitutional Provisions

–Leiv Marsteintredet, Associate Professor in Latin American Area Studies, University of Oslo; Associate Professor in Comparative Politics, University of Bergen

In a unanimous judgment on April 22, 2015,[1] the Constitutional Chamber of the Honduran Supreme Court rendered inapplicable and without effect the unamendable provisions in the 1982 Honduran Constitution. These unamendable provisions prohibit presidential re-election and make it unconstitutional, illegal, and punishable with 5-10 years of prison as well as the loss of citizenship to promote presidential re-election.[2]

In a region that today is relaxing presidential term limits,[3] the Honduran Supreme Court’s decision may not come as a surprise. Two factors, however, makes this a very interesting decision. First, the provision prohibiting presidential re-election is one of several unamendable constitutional provisions in the 1982 Constitution.[4] Second, when President Manuel Zelaya (2005-2009) attempted to reform the Constitution in 2009 through popular referendum, he was ousted on the argument that he had promoted presidential re-election, and had attempted to alter the unamendable provisions in the Constitution.

Background to Honduran Ban on Re-Election and the Unamendable Clauses

In Latin America today, Honduras is one of four countries that ban presidential re-election (the others are Mexico, Guatemala and Paraguay). This total prohibition of presidential re-election in the 1982 Constitution (article 239) dates back to the 1965 Constitution (article 193), and before this the total prohibition of presidential re-election was only present in the 1904 Constitution (in effect until 1924).[5]

In Honduras it has in fact been more common to permit nonconsecutive re-election: presidents are permitted to run for re-election but only after sitting out at least one term.

Nonconsecutive re-election was permitted in the 1924, 1936, and 1957 constitutions as well as the 1865, 1873 and 1894 Constitutions. Finally, immediate presidential re-election has not been permitted since the 1880 Constitution (in effect until 1894), and prior to 1880 it was permitted in the 1825 and 1848 Constitutions.

The current Constitution dates back to the democratic transition of 1982, and prohibits presidential re-election in its article 239. Furthermore, article 42(5) makes it unconstitutional and punishable with the loss of citizenship to promote or support presidential re-election. Finally, article 330 of the Penal code makes it punishable with 5-10 years in prison to promote presidential re-election.

Unamendable clauses in Honduran Constitutions date back to 1957.[6] In the 1957 Constitution, article 339 states that the clauses regulating presidential re-election and alternation in government were unamendable under all circumstances. In 1957 only immediate re-election was prohibited. The 1965 Constitution bans presidential re-election altogether, and article 342 of the 1965 Constitution makes the clauses regulating the form of government (democratic and representative) as well as presidential re-election unamendable. The 1982 Constitution, which remains in force today with intervening amendments, copies the two predecessors in its article 374, which makes, among others, the article on presidential re-election unamendable.

The total ban on presidential re-election has in the past been the target of derogation in the Constitutional Chamber of the Supreme Court. But in 2008, the matter was declared inadmissible on formal grounds. It also became a hot issue during the 2009 civil-military ouster of President Zelaya (2005-2009) of the Liberal Party. Zelaya sought to alter the Constitution and use a referendum to call for a Constituent Assembly. Political elites from both traditional parties (The Liberal and National Parties) in addition to the military and Supreme Court argued that the decrees calling for referendum were illegal, and that President Zelaya was in fact attempting to pave the way for his own re-election.[7] Given that the Constitution of 1982 not only banned presidential re-election, but also made it illegal (and unconstitutional) to promote re-election, the elites opposing Zelaya used this as a constitutional and legal pretext to oust him from power in June 2009.[8] The unamendable clause prohibiting presidential re-election has therefore played an important role in recent political developments in Honduras.

The Supreme Court Case: Background and Arguments

Against this constitutional and political backdrop, the recent decision of the Constitutional Chamber of the Supreme Court has been controversial. In fact ever since the ouster of President Zelaya in 2009, which the Supreme Court ordered and condoned, the Supreme Court itself has been controversial.

During the administration of President Porfirio Lobo of the National Party (2010-2014), the Supreme Court invalidated important parts of the President’s agenda such as a police reform and the creation of charter cities to promote investments. The majority of Congress subsequently decided in 2012 in a very dubious procedure to remove four Supreme Court judges.[9] Since then it has been assumed that the Supreme Court has been beholden to the leadership of the National Party and the current president Juan Orlando Hernández of the National party, who in 2012 was the president of Congress.

The Supreme Court’s judgment last month came as a response to two separate claims of unconstitutionality relating to the ban on presidential re-election. First, in the fall of 2014 a group of representatives in Congress belonging to the National Party challenged the constitutional and statutory rules that made it unconstitutional and illegal to promote presidential re-election.[10] Second, in early 2015 ex-president of the National Party Rafael Callejas (president 1990-1994), argued that article 239 of the 1982 Constitution, which prohibits presidential re-election, should be declared inapplicable. The Constitutional Chamber of the Supreme Court decided to treat the claims together. The claimants argued that limiting re-election violated rights in a series of international human rights treaties to which Honduras is a signatory, namely the rights of free speech, citizen and voter choice, and the right of citizens to run for public office.[11]

The Constitutional Chamber of the Supreme Court issued a 32-page decision. It concluded unanimously that article 330 of the Penal Code was unconstitutional and that article 42 (on loss of citizenship for promoting re-election), article 239 (banning re-election) and article 374 (making the re-election clause unamendable) were inapplicable. The Court reasoned that clauses prohibiting the promotion of presidential re-election were in conflict with free speech and thought, and unduly limited political participation and debates. The Court further accepted the argument that banning presidential re-election seemed to be contrary to a series of internationally protected human rights, and incompatible with a host of other articles protecting basic human rights in the Constitution, as well as other international human rights treaties to which Honduras is a signatory.

The Supreme Court also, quite interestingly, held that the restriction on human liberty that the prohibition of presidential re-election presents could conceivably be accepted if deemed reasonable or socially necessary. But the Court stated that while the ban on presidential re-election had been reasonable and salutary for democracy in earlier periods in Honduran history, and therefore constituted a valid restriction of liberty, today this is no longer the case since the country has stabilized its democracy through alternation without interruption since 1982.

Finally, the irony that the 2015 Supreme Court abolishes presidential term limits, while the 2009 Supreme Court ordered the arrest and ouster of then-President Zelaya for promoting a constitutional replacement, has not escaped national and international observers.[12] There is, however, less of an irony in the change of opinion of the Supreme Court than one would think.

In its judgment, the Supreme Court refers to the 2009 ouster of Zelaya and the recommendations of the Truth and Reconciliation Committee’s report of 2011,[13] which states that the unamendable clauses should be removed since they seem to prevent any constitutional replacement.[14] The Supreme Court accepted the Committee’s recommendation to declare inapplicable parts of article 374 relating to the re-election ban but it did not declare inapplicable the other unamendable clauses in article 374, which today remain in force.

Amendable Unamendable Clauses

The Supreme Court judgment in Honduras has faced harsh criticism from the opposition in the Liberal Party and the new LIBER party (led by the ex-president Zelaya), and is seen by the opposition as yet another authoritarian step by an increasingly authoritarian president, which also reflects the lack of judicial independence in Honduras.

The ruling National Party, naturally, holds the opposite view. Whatever the truth of the matter, it seems that Honduras has gone from having the region’s strictest ban on re-election to joining Venezuela and Nicaragua as the third country in Latin America to have no restrictions on presidential re-election.

Not only that, the Honduran Supreme Court has also demonstrated that unamendable clauses are as amendable as any other constitutional article if it can be argued that they hinder or are in conflict with other international human or constitutional rights, or, interestingly enough, if the conditions that motivated the unamendable clauses have changed.

Suggested Citation: Leiv Marsteintredet, The Honduran Supreme Court Renders Inapplicable Unamendable Constitutional Provisions, Int’l J. Const. L. Blog, May 1, 2015, at: http://www.iconnectblog.com/2015/05/Marsteintredet-on-Honduras

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[1]The judgment can be found here: http://www.poderjudicial.gob.hn/Documents/FalloSCONS23042015.pdf

[2] The Honduras 1982 Constitution available in the SPanish language here: http://www.cervantesvirtual.com/obra-visor-din/constitucion-de-honduras-de-1982/html/

[3] See Javier Corrales and Michael Penfold, “Manipulating term limits in Latin America” (2014) Journal of Democracy 25(4): 157-168.

[4] See Article 374 of the 1982 Constitution which declares that the articles referring to type of government, national territory, the presidential term, and presidential re-election can under no circumstances be amended.

[5] My discussion of re-election in the Honduran Constitution is based on the constitutions listed and available at Cervantes Virtual: http://www.cervantesvirtual.com/controladores/portales/portal.php?portal=constituciones_hispanoamericanas&seccion=honduras_constituciones&autor=&paginaUsuario=1&numresult=10&vista=reducida&q=&orden=fechapublicacionoriginal&paginaNavegacion=1.

[6] It is however possible to argue that article 35 of the 1873 Constitution comes close to making unamendable that same article which prohibits immediate presidential re-election in stating that attempting to get re-elected or staying in power longer than the presidential term is considered treason.

[7] The same elites also disliked the close relationship with controversial leftist presidents such as Hugo Chávez in Venezuela and Daniel Ortega in Nicaragua.

[8] On the coup against Zelaya, see: Mariana Llanos and Leiv Marsteintredet, Epilogue: The Breakdown of Zelaya’s Presidency: Honduras in Comparative Perspective, in Presidential Breakdowns in Latin America. Causes and Outcomes of Executive Instability in Developing Democracies, edited by M. Llanos and L. Marsteintredet, New York and London: Palgrave Macmillan, 229-238 (2010); Mariana Llanos and Leiv Marsteintredet, “Ruptura y continuidad: la caída de “Mel” Zelaya en perspectica comparada” (2010) América Latina Hoy (55):173-197; and J. Mark Ruhl, “Honduras Unravels” (2010) Journal of Democracy 21 (2):93-107. For a legal discussion of the ouster, see: Norma C.  Gutiérrez, Report for Congress. Honduras: Constitutional Law Issues. Washington DC: The Law Library of Congress (2009).

[9] For details about these processes, see e.g. the BTI 2014 Honduras Country Report (http://www.bti-project.org/uploads/tx_itao_download/BTI_2014_Honduras.pdf)

[10] Article 42(5) and the second paragraph of article 239 of the 1982 Constitution, and article 330 of the 1983 Penal Code.

[11] Similar arguments were used in the Supreme Court cases opening for re-election in Costa Rica and Nicaragua, see for instance Corrales and Penfold (2014) and Elena Martínez Barahona, “Constitutional Courts and Constitutional Change: Analysing the Cases of Presidential Re-Election in Latin America”, in New Constitutionalism in Latin America. Promises and Practices, edited by Detlef Nolte and Almut Schilling-Vacaflor, Farnham and Burlington: Ashgate: 289-312. (2012).

[12] See e.g. El País: http://internacional.elpais.com/internacional/2015/04/24/actualidad/1429839601_867027.html

[13] The Truth and Reconciliation committee was formed as a way to mend the wounds created by the coup and for the political elites and society to learn from the 2009 debacle. See, Para que los hechos no se repitan: Informe de Verdad y la Reconciliación, Editorama, San José, Costa Rica, 2011.

[14] Since it can be argued that promoting a constitutional replacement logically also includes promoting changes to the unamendable clauses, this too would be unconstitutional and illegal.