Fool’s Mountain: Blogging for China

There has been much comments, analysis, blogs over the Honduran "Incident".

But the detractors of the current "new government" of Honduras miss the fundamental contradictions of their own arguments.

They argue that "this is not a coup, because ex-President Zelaya was removed for a good reason". But that is simply an "end justifies the means" argument. Military Coups are wrong, not because we judged upon the justifications of the coups, but because we recognize that use of military force to change a government is simply the wrong means. It cannot be a Constitutional method.

They argue that "this is not a coup, because the military acted under the order of the Supreme Court of Honduras." But they simply miss the point of even having a Supreme Court. A Supreme Court cannot simply make an order legal, when the Articles of Constitution of Honduras clearly does not prescribe "exile".  "Removal" simply means removal from official authority.   After that, Zelaya would be powerless to act upon anything, but he should still be able to rally his supporters as legitimate politcal expression.  "Arrest" or "Exile" are fundamentally beyond the scope of "removal" as written in the Constitution of Honduras.

In this, I am reminded of the foundational principle of "Separation of Power", and "Judicial restraint" in many Democracies.

In US history, a case was decided by the US Supreme Court, Marbury v. Madison, where the justices refused to sanction President Thomas Jefferson for ordering non-delivery of "appointment letters" for several judges. Thomas Jefferson had essentially refused to execute laws and appointments passed by the US Congress on the previous term. The US Supreme Court avoided the confrontation with the Executive body by dismissing the case on a "standing" issue.

The US Supreme Court believed that such issues would work themselves out by the People over the long term. And "judicial restraint" means that the court should refrain from making any orders to compel the other 2 political branches in show downs. Let alone use the military or side with the military in any arguments with the President.

They speak of the "unconstitutional referendum", and how unpopular Zelaya is. But if he is indeed unpopular, then why worry about the "referendum"? Even if he won the "referendum", it would not legally change the "Constitution". The Honduran high court has already ruled that the "referendum" would have no legal effect on the Constitution.

The detractors have simply missed the whole point. The fundamental wrongfulness of "military coup" is in the madness of the "method". Undoubtedly, many previous military coups listed similar "justifications", but we do not look up the "justifications", only the process of law. Whether Zelaya should be removed is not the question, but whether the Supreme Court of Honduras had the legal authority order "exile", and whether the military of Honduras could legally execute such an order.

For such an order, and such justifications, the Supreme Court and the Military of Honduras, have done far more damage to the Democratic process of Honduras than a single Zelaya could possibly do with his "referendum".

Had Zelaya succeeded in his "referendum", it would at least be representative of the People's will, and political branches of Honduran government can reach compromises, or even stand firm and refuse to accept Zelaya as President for a new term. (Surly that cannot be that difficult, if Zelaya is so unpopular.)

But now, we have a precedent of Honduran Supreme Court ordering the military to "remove" a president into "exile".

The damage to the credibility of the Court's impartiality and the military's non-involvement in politics is untold.

And now, the Supreme Court of Honduras will have to deal with the consequential question, can they now be "removed into exile" by the foreign and domestic supporters of Zelaya?  Whatif tomorrow, 1 of the generals use his troops to "remove" the Justices into "exile" on the order of Congress?

*
I for one, now finally and fully appreciate the wisdom of Justice Marshall in Marbury v. Madison, and the principle of Judicial restraint.

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