Not since the Iraq war have so many journalists written so many stories based on facts that simply don't add up. From Fox news to our own TPM, assertions are being presented about the Honduran situation as fact that can only be described as grossly inaccurate.  So, before going into the details, let start by listing a few of the popular myths and the correction:

#1
Myth: The Honduran court declared the referendum proposed by Zelaya illegal.

Fact: The issue was never tried on it's merits. The Honduran court issued a temporary injunction against the referendum. It found that without an injunction, remedy for the plaintiff would become moot and public money spent on the poll would be unrecoverable in an event where a hearing on merits found the referendum illegal and it had already taken place. This injunction was upheld on appeal.

#2
Myth: Zelaya was removed from office for trying to extend his term.

Fact: Zelaya was removed from office for what amounts to contempt of court because of ignoring the injunction and subsequent court orders.

#3
Myth: The legal challenge to the referendum was based on an allegation that Zelaya wanted to extend his term in office.

Fact: The argument against the referendum was based on two issues, one statutory and one constitutional. The statutory argument involved jurisdiction: if Zelaya had legal authority to authorize the expenditures and conduct the poll, or if the authority is granted to a different government organ as alleged by the plaintiff. The constitutional argument is based on the nature of the November ballot question proposed in the referendum.  Based on the Honduran constitution, certain articles can not be changed. Additionally the method for legal changes to the constitution is strictly defined in Article 373 which itself is one of the protected Articles. The court cites constitutional Articles 373, 374, and 375 as the basis for the legal challenge. Article 239, limiting presidential terms, is simply not mentioned or used as the basis for any legal argument.

Please note. This is not to assess the merits of the argument they are putting forward. Instead this is an attempt to provide a factual report of the actual allegations against Zelaya from the Honduran establishment's point of view.

So, what's the basis for saying this?

At some point after Zelaya's removal and before Honduras' own ejection from the OAS, the Honduran courts issued a legal explanation (.pdf) for the decision to remove Zelaya. The undated document outlines 12 points describing the progression and legal situation that led to the events on June 28, 2009 and provides the supporting court rulings. Though it can't necessarily be "believed", it certainly seems to accurately reflect the legal argument the transitional government is advancing.

Unfortunately for myself, and apparently the entire industry of journalism, it's in plumb-foreign Spanish. After frittering around for a month hoping someone in the newzes or the internetz or places with teachingz, who could actually speak the language, would bother to make it readable to we shlubby types ... well ....let's just say "nada".

In this environment, there are two real sources: right wingers and leftist activists - both of which are consistently full of spin and baloney.  Everyone else seems to be regurgitating whatever these two groups say, with source choice based mainly on ideological prejudice.  So ultimately it was to the online translators for me. By running text through several sites, it's possible to get pretty close to understanding what the documents say. Here's what I got out of it:

Explanation from the Honduras court.

Going through the Honduran court's document from the top; they open with a "Howdy", pointing everyone's attention to Article 2 of the Inter-American Democratic Charter. The opening basically says: we also believe in government with all branches functioning in mutual recognition of limits to authority - that's why Zelaya was removed. A standard formal intro paragraph.

Then it's on to the points at issue:

1. On May 27, 2009, the Administrative Law Tribunal issues a ruling in relation to [the request an injunction be imposed on] Executive Decree PCM-05-2009. The court dictated a "sentence interlocutoria" ordering the suspension of the proposed consultation by the President or any of his subordinates in the administrative structure.

This is what starts the whole thing from the court standpoint. It's an injunction. There is no issue determined other than if an immediate injunction is warranted. Clunking through it, it is amazingly standard stuff. The ruling ultimately rests on weighting the assumption of legality concerning the contested action against the harm to the plaintiff if the action is not stayed yet ruled illegal when the case is heard on merit. The plaintiff argued if the referendum were taken and later proven illegal, there was no remedy that could erase the act, and that the referendum would be held at state expense and the expenditure would also be unrecoverable.

From the injunction ruling on page 10 of the linked .pdf:

WHEREAS (4): That in this sense it is important to note that when the request is resolved suspension of the contested measure has been taken into consideration that the remedy is not effective if the final rule, it is difficult or practically impossible satisfaction of the claim contained in the demadnda, so the correct decision of this application requires balance and harmonize the two conflicting principles, on the one hand, the effective judicial protection, and secondly, the effectiveness of administrative action, that the presumption of legitimacy of the act, seeking to avoid beginning with implementation of the act of injury difficult or impossible to repair, the absence of a suspension of the act is challenged, so when order the suspension of the effects of a particular act which is to provide that when issued a final ruling is merely declaratory and inefficient with respect to the plaintiff's claims.

In the citation section of the ruling, the constitutional and statutory references all point to the authorities and requirements for deciding the question of an injunction

Moving on, the court declaration highlights the court sending a clarification to the Presidency on May 29, 2009 informing that the injunction covered any action of the general or specific nature of a public consultation, and that changes in "denomination" would still fall under the definition of the injunction. This was followed up with a June 3, 2009 notice of legal requirement to abide by the court injunction. The next major occurrence was Zelaya's appeal of the injunction which occurred on June 16th.

4. On June 16, 2009 the Court of Appeals unanimously upheld the May 27 injunction. Rejecting the request presented by President's Council Velasquez Diaz to overturn the Administrative Law Tribunal ruling. Lawyer Rosa America de Galo representing the Soliciter General presented the argument in favor of upholding the court order. The appeals court confirmed the legality of the May 27, 2009 injunction as well as the additional clarification issued on May 29. 2009.

On June 18, the Administrative Law Tribunal issued a second notice to Zelaya reiterating the legal requirement to comply with the court orders. At the same time, they issued a court order that Zelaya confirm his intent to comply with the ruling in writing to an appointed officer of the court within five days.

6. On June 18, 2009, the Administrative Law Tribunal issue third communication to the Presidency through the Secretary General to order to respond within five (5) days to the court with jurisdiction acknowledgment of intent to comply with the "sentence interlocutoria" as clarified in the May 29, 2009 notice.

Five days later (not counting the weekend), was June 25th, the day the Constitutional Court overruled Zelaya's removal of the military chief.  On June 26, 2009, Zelaya had not given a response and the court decided to take action based on the Presidency's decision to ignore the court order of June 18.

8.On June 26 the court found that the Presidency had not complied with the June 18 court order to provide acknowledgment of intened compliance with court injunctions within five days, which expired on June 25, 2009. The court found that Jose Manuel Zelaya Rosales, as leader of the executive branch was in contempt of court orders and was responsible for the crimes against the GOVERNMENT FORM, TREASON TO the MOTHER COUNTRY, ABUSE OF OFFICE AND USURPATION OF FUNCTIONS that damaged the administration. The panel found unanimously that the President would be suspended for contempt on June 30, 2009 in the event of continued noncompliance. The Supreme Court designated a magistrate to contact the Presidency and determine the status of the required filing. The court issued formal charges and a warrant for arrest.

This seems to have given until June 30, 2009, at the latest, for Zelaya to address the court and avoid sanction and also granted the court authority to act prior to that date. Also on the 26th, the court notified the military that the proposed referendum was illegal and that they should suspend all activity related to consultations or surveys and should seize any materials that had been produced for a June 28 poll in specific. The court also prepared and issued notification to a large number of South and Central American nations alerting them to the legal jeopardy and the courts decisions.

On June 28, the court executed the arrest warrant and notified the international community as well as the Honduran public that the military was acting on court authority. And the rest is history.

So, that's the legal progression that led to Zelaya's removal. Notice, not one time does the issue of term limits even enter the picture. Specifically, Article 239 of the constitution is not a factor at all. It seems that Zelaya was officially removed for placing the Presidency above the Judiciary - not for trying to secure multiple terms.

What about the case against the referendum?

This is an interesting situation. The popular meme, repeated ad infinitum by the media, including here at TPM, is that the referendum was challenged on the ground that it was seen as an attempt by Zelaya to remain in power. Well, that is simply wrong. This was never a specific point of legal debate in Honduras as far as the courts are concerned.

The real issue had to do with an entirely different part of the constitution - the part of the constitution that spoke to it's own existence and the legal process by which it could be modified. Essentially it boils down to this: Article 373 explains the method by which the constitution can be modified - by 2/3 majority vote of the legislature in two successive legislative sessions. This article further states that this is the sole means by which the constitution may be changed.

Briefly, Article 374  declares the portions of the constitution that are "set in stone". This includes both the presidential term limitations as well as Article 373. Article 375 speaks to the protection of the constitution itself and basically says: if anyone attempts to take power by eliminating the constitution that the constitution is still in force and it is the responsibility of all Hondurans to work for it's restoration - and authorizes the penalty of property seizure against any official who had supported the constitution's overthrow.

From page 72 of the linked .pdf:

...In this regard, the convening of a Constituent National Assembly, it is clear that it intends to repeal the current Constitution, acts constituting the crime at issue in light of the provisions of Articles 373, 374 and 375 of our Constitution not lost its validity, or no longer fulfilled and can not be subject to modification, but by any other means and procedures other than that she has, therefore, under no circumstances may dictate and approve a new constitution because this would with the reform of stone articles, which can not be reformed in any case.

That's a very brief teaser on the argument against the legality of Zelaya's referendum. The issue is quite interesting, and now that it is confirmed this indeed was the point of law that was brought against the referendum, there will likely be followup post exploring this argument in detail. It should be reiterated, this question was never adjudicated. The legal track to a trial on the subject was derailed when Zelaya abandoned the legal framework and attempted to conduct the poll based on his own authority in violation of a court injunction.

A Challenge:

I hereby challenge anyone who wants to assert Zelaya extending his own term was the basis for actions of the Honduras court: provide documentation of this assertion (an actual court filing/ruling). Here I am, a booglie-eyed anonymous avatar who doesn't even speak Spanish ... it should be pretty easy for someone "real" to clarify where my assessment is off base. As best I can tell, the "debate" so far centers around one great big strawman.

Anyone who relies on the product of journalism for information should be asking a big question: what process has the media used to confirm the "facts" that are being tossed around? It clearly wasn't by analyzing the arguments before the Honduran court or documents that have been publicly available since these events occurred. How did they get the basics so wrong? Even if the facts don't change the illegalities of Zelaya's removal, isn't there a basic requirement to give an accurate account and to discuss the legal issues based on what was actually in litigation?

The point of this post is to simply present the actual legal arguments being made by and before the Honduran courts, and not opine; but needless to say, I *do* have an opinion here ... that's for another thread. So, I'll just leave this with a question: who benefits most from misinformation on this topic being accepted as reality?