Originally published on June 25, 2015 at the New York Times. Republished for educational purposes as a very relevant constitutional analysis for the understanding of abuse of political power in the Honduran republic.
By Brian Sheppard and David Landau
In April, Honduras’s Supreme Court invalidated the country’s rigid presidential term limit — and drastically undermined its Constitution.
The Honduran Constitution — which limited presidents to a single four-year term — includes an extraordinary provision that makes the term limit unamendable by any process whatsoever and mandated harsh penalties for any politician who tried to change it.
The Constitution’s drafters specifically wrote the text to safeguard the country from military dictators or caudillos who refused to leave power, of which there is a sordid history in Honduras and throughout Latin America.
But what has occurred is precisely what the Constitution’s drafters feared. A seemingly unassailable portion of the document, intended to guard against political manipulation, has been subverted by judges at the behest of politicians. Now, politicians from the conservative National Party who brought the case — and any future political leader — are in an ideal position to hang on to power indefinitely.
While an independent and capable judiciary can be a great support to liberal democracy, courts without these characteristics may pose a serious threat, particularly in countries with fragile democracies and ineffective civil society groups, like Honduras.
In 2009, the left-leaning president, Manuel Zelaya, apparently tried to circumvent these protections by attempting to initiate a referendum on whether the Constitution should be rewritten. The military deposed Mr. Zelaya in a coup and forced him onto a plane to Costa Rica. Congress supported Mr. Zelaya’s removal and appointed a successor, citing the term limit law. And despite overwhelming condemnation of the coup from the international community, the Supreme Court blessed the actions of the military.
Not only does the court’s recent decision contradict Congress’s reasoning in the aftermath of Mr. Zelaya’s removal, it is also illogical. Constitutional judges around the world recognize that a proposed amendment may be unconstitutional if it clashes with the basic values of the original text. But the Honduran court’s judgment gutted a portion of the 1982 Constitution.
The decision’s questionable reasoning also appears to be the result of a strategy on the part of the National Party, which opposed Mr. Zelaya. After taking control of the executive and legislative chambers, the party abruptly dismissed four Supreme Court justices in 2012 and replaced them with judges who would back their agenda.
The decision sends a message that politicians can take advantage of the judiciary’s relatively low profile by getting the courts to do dirty work that would otherwise invite scrutiny. This is exactly what National Party leaders did. While both the actions of Mr. Zelaya and those who removed him provoked condemnation from the international community, the court’s recent decision abolishing presidential term limits has largely slipped under the radar, domestically and internationally.
The relative silence of the international community this time may be unsurprising, but it is dismaying. Although opposition groups have been protesting the decision, their efforts are largely ineffective without support from the United Nations and other countries.
Honduran constitutionalism faces a number of important weaknesses. The Zelaya episode demonstrates that the Constitution cannot adequately address institutional crises or human rights violations. Furthermore, the existing text has proved unable to ameliorate the country’s severe economic inequality or its concentration of political power.
A transparent political effort to change Honduras’s term-limit provision might have started a broader discussion of other needed constitutional reforms. But any chance of legitimate constitutional change has been squandered by the judiciary, which gave political leaders exactly what they sought without any public deliberation.
The Obama administration is currently trying to pass an aid package for Central America. Some of this money is aimed at improving governance, including judicial performance. Honduras needs this money badly. For several years it has endured the highest homicide rate in the world; the country’s violence was a major contributor to last year’s child-migrant crisis at the United States border.
But the administration should oversee how the money is allotted. It should earmark funds so that they are spent on measures that might prevent a Honduran congressional majority from stacking the court with its own members again. And it should push for the enactment of a sensible presidential term limit — one that will be resistant to political manipulation — to fill the void left by the court. In the absence of any term limit, Honduran democracy stands vulnerable to the threat posed by would-be authoritarians.
Brian Sheppard, an associate professor of law at Seton Hall University, and David Landau, an assistant professor of law at Florida State University, served as consultants on the Commission on Truth and Reconciliation of Honduras.