Honduras: Victory for Human Rights, Defeat for the Rule of Law
EspañolThe recent ruling of the Honduran Supreme Court of Justice (CSJ) regarding presidential reelection sparked joy among the ruling party and its supporters, and indignation on the part of opposition parties and many citizens.
However, the vast majority of Hondurans, whose only interest is to improve their economic situation and that of their children, received the ruling with an unperturbed apathy.
Without doubt, it takes only a brief analysis to see that much of the legislation on presidential reelection violates the right to free expression and dissemination of ideas, contradicting other constitutional articles along the way.
Moreover, it goes against international human-rights instruments, as the 15 congressmen who filed the appeal of unconstitutionality argued forcefully.
The appeal presented by former President Rafael Callejas, who argued that the ban on reelection is a violation of the right to elect and be elected, is somewhat less convincing.
The Constitutional Chamber of the CSJ did not reform the Honduran Constitution, nor does it have the power to do so. However, as the highest interpreter of this document, and in the exercise of its legal powers , it declared the unconstitutionality of Article 330 of the Penal Code, the total inapplicability of Article 239, as well as part of Articles 4, 42, and 374 of the Constitution.
Thus, it paved the way for indefinite presidential reelection until it can be limited by the vote of two-thirds of Congress.
What this debate comes down to is a misguided attempt to overturn the presidential term limit in the name of human rights, when in reality such a move can only be decided by the sovereign authority in the state — the people.
The Honduran people allegedly abused their power when they penalized those who promoted presidential reelection.
The Court’s Argument: Human Rights Dominate
In the book International Law Limitations for the Constituent Assembly, legal director of the Human Rights Foundation Javier El-Hage argues that the power of a National Constituent Assembly (NCA) is limited by the obligations that were previously contracted through international treaties.
This limitation is shared by the Constitutional Chamber. In the ruling, it stated that the Honduran people abused their power by restricting the right to free expression, in penalizing those who would promote, support, or propose any reforms to allow presidential reelection. The sanctions established were the loss of citizenship, and disqualification for 10 years from holding public office.
This is because in 1982, the state of Honduras was bound in its new Constitution (forged by an NCA) to respect international treaties, which protect freedom of expression and conscience, that were ratified in previous years. As such, the judges claim, the new ruling defends human rights.
In its ruling, the Supreme Court recognizes “respect for the essential rights that emanate from human nature,” as a limit to the exercise of sovereignty. “Therefore, the Constituent Assembly is limited only to recognizing, securing, and guaranteeing them, as they are universal, inalienable, and irrevocable rights.”
Here, it’s understood that even if natural rights were not recognized by international treaties, the Honduran state would be under the obligation obligation to respect them. That is, regardless of how set in stone its articles are, the state did not have the right to violate “freedom of expression” in banning campaigns for reelection.
To resolve the apparent contradictions within the Constitution and international treaties — both enjoying the same hierarchy — the Supreme Court turned to the principles of constitutional interpretation. To this end, under the Pro Homine principle, “the judge is obliged to apply the most favorable national or international law that will benefit all individuals.” In this case, freedom of expression was judged to be the most favorable norm.
Regarding reelection, the Commission of Truth and Reconciliation recommended, after the events of 2009, that in order to to change the articles that were set in stone, modern constitutional doctrine should be followed.
This doctrine defends the meta-legal and meta-constitutional power (i.e above any legal or constitutional law) of a National Constituent Assembly (NCA). That power fundamentally rests with the people’s sovereignty, and as a logical consequence, it may be exercised through different mechanisms rather than an NCA.
The Reality: The People’s Will is Sovereign
However, in my opinion, the court chose, without any justification, the most destructive option for the ideal of rule of law, which aims to limit the use of power through the constitutional text.
The court arrogated to itself the right to decide on presidential term limits, taking away sovereignty from the people, and completely disregarding the concept of limited powers.
The procedure for amendments established in the US Constitution is a text that I believe has greater legitimacy than all international human-rights treaties. It already gives us solid and respected guidelines.
In a republic, the people have the sovereign right to place or remove term limits.
Through the power of popular sovereignty, a single article can be changed without any problem if desired, without disrupting the entire Constitution, as the diabolical Latin-American NCAs are accustomed to doing.
The Supreme Court declared the prohibition of reelection to be “inapplicable,” arguing that fundamental rights, such as that to elect and be elected, should only be subject to such restrictions when there is a “pressing social need,” or when these are needed to “make possible the effective democratic and constitutional values.”
Thus, they left a basic constitutional tool out of the reach of the Honduran society: the ban on reelection, whose aim is to prevent the machinery of government from being used to undermine the principle of alternation.
The Latin America I see around me is plagued by dictators in command of a Leviathan, dedicated to trampling the rights of all. I believe presidential term limits remain a pressing social need in these days; and placing them (or removing them) is an exclusive right of the sovereign — which, in a republic, is nothing less than the people.
 Article 308 of the Honduran Constitution, article 7 of the Law on Constitutional Justice, and article 1 of the Rules of the Constitutional Chamber of the Supreme Court.