Kgb999 and diachronic had an interesting exchange on Rutabaga's blog a couple of days ago.  It was off-topic, so I didn't want to jump in there.  But I would like to comment on the issues raised.

Kgb wrote: But ultimately, like with the Zelaya situation, they [USSC] are the arbiters of what the law means.  This is true to an extent, but it needs to be emphasized that In Honduras it is Congress who is the final arbiter on Supreme Court decisions.  This wasn't so with the original constitution, but rather resulted from a modification legislated in the past few years.  I apologize for not having a citation at hand - it would take a few hours to find it - if it became a burning issue I would find the citation.  My point here is to support the conclusions of review organizations have rendered that the Honduran Supreme Court is strongly politicized.

Wikipedia actually has a very good page on the Supreme Court of Honduras.  Of particular interest is something that has been largely ignored the the media, and that is that the Supreme Court which acted against Zelaya had been seated on June 25, 2009 - in a midnight session of congress.  According to Wiki, it was a controversial appointment.  In the first place, the Zelaya Administration was pushing for the reappointment of Justice Sonia Marlina Dubón de Flores , although the nominating board had not chosen her.  In fact, the selection of the nominating board was in itself controversial.  Instead of voting for individual nominees, congress was asked to vote for two "blocks" of nominees, chosen by the dominant National and Liberals (both politically right wing).  The leftist parties , United Democracy & Innovation, and the Unity Party abstained from the vote in protest.   Please note the date; June 25, 2009.  It is the same day that the Honduran Attorney General issued a secret detention order request against President Zelaya, and the next day, June 26, the new Supreme Court secretly issued the requested detention order.  At some point between midnight on the 25th and the end of the work day on the 26th, the brand new Supreme Court would have had to consider all the facts in a complicated case and issue a competent decision. 

In response to kgb's point, diachonic linked to a very good summary of legal issues that point to inpropriety by the Honduras coup participants, especially as it relates to international law.  However, I would like to take issue with one small part of Doug Cassel's article - a point that does not diminish what the author is saying, but one that is of utmost importance in the issue of the prelude to the Coup d'etat. 

On the day he was deposed, President Zelaya, in violation of a court order, was attempting to conduct a referendum on whether to call a constitutional convention.

In common speech, "referendum" is often exchanged with "plebisite" and even "public opinion poll."  I don't know if this is true with Honduran Spanish, but insofar as legal language, which ever attempts to be precise as possible, the terms are not interchangeable.  My own Black's Law Dictionary  (which is showing its age) defines "referendum" in three cases: 1) International law - a diplomat consulting her/his home government in regard to matters presented to him which he is unable or unwilling to decide without further instructions; 2)  constitutional law (Switzerland and elsewhere) - a method of submitting and important legislative measure to a direct vote of the whole people; 3)  Initiative -Right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body, and which, in most cases, would without action on the part of the electors become a law.

Black's defines plebiscite as a type of referendum, but it is both radical and rare.   In modern constitutional law, the name "plebiscite" has been given to a vote of an entire people...expressing their choice for or against a proposed law or enactment, submitted to them, and which, if adopted, will work a radical change in the constitution, or is beyond the powers of the regular legislative body.

The argument goes like this:  If President Obama asked for a show of hands in a Town Hall Meeting for everyone who supports the public option in National Health Care, could he be charged with conducting an unconstitutional referendum ?  If DNC sent out a questioaire asking voters if they supported single payer are they guilty of conducting a referendum outside the legal framework which governs such things in the USA.  Of course not.  Both cases would represent non-binding public opinion surveys.  Therefore, using the term "referendum" to represent a non-binding public opinion survey is distortional and leads one to believe that the Honduran questionaire is somehow illegal.

Kgb999 responds to diachronic with several points that he observed were absent in Doug Cassel's article.  He identifies two areas that concern him:

Thus far my focus has been two fold, #1 what was the legal basis for the challenge against Zelaya's public consultation, and #2 what was the basis for criminal charges being brought against him. In the first case, the argument was that the proposed constitutional assembly (and inherent dissolution of the existing constitution) was in violation of Articles 373, 374, and 375 of the Honduran constitution. On it's face that would seem to be an accurate complaint - hence the court issued an injunction against the consultation until the constitutional issue was argued in court.

Now #2 gets interesting. There is the simple layer, which is that Zelaya was in contempt of court and took actions in direct defiance of court orders and in violation of the law. But it's actually a bit deeper than that. It seems that they also accused him of attempting to violate Article 375 by dissolving the constitution. I think there is some validity to the argument that the act of dissolving the constitution would eliminate EVERY article protected under Article 374 ... including those in relation to presidential term.

Here are the relevant constitutional Titles, Chalpters and Articles:

TITLE VII
AMENDMENT AND INVIOLABILITY OF THE CONSTITUTION

CHAPTER I
Amendment of the Constitution

Article 373
The amendment of this Constitution may be decreed by the National Congress, in ordinary
sessions, with two-thirds of the votes of all its members. The Decree shall specify for that
purpose the article or articles that are to be amended, which must be ratified by the subsequent ordinary legislature, by the same number of votes, in order to take effect.

Article 374
The foregoing article, this article, the articles of the Constitution relating to the form of
government, national territory, the presidential term, the prohibition from reelection to
President of the Republic, the citizen who has served as President under any title, and to
persons who may not be President of the Republic for the subsequent period may not be
amended.

CHAPTER II
The Inviolability of the Constitution

Article 375
This Constitution does not cease to be in effect nor does it cease to be in force by act of force or when it is allegedly repealed or amended by any means or procedure other than that which it itself provides. In these cases, every citizen, whether or not invested with authority, has the duty to cooperate in maintaining or reestablishing its effectiveness.
Persons responsible for the events specified in the first part of the foregoing paragraph, as
well as the principal functionaries of governments that may subsequently be organized, shall be tried in accordance with this Constitution and the laws issued in conformity therewith, if they have not assisted in immediately reestablishing the rule of this Constitution and the authorities constituted in accordance therewith. The Congress may, by a vote of an absolute majority of its members, decree the forfeiture of all or part of the property of those persons and of others who have enriched themselves by supplanting the sovereignty of the people or by usurping the public powers, to compensate the Republic for any losses incurred on account of them.

As to issue #1, the legal basis for outlawing the opinion poll was tenuous.  To start off, you have to confuse "opinion poll" with "referendum."  Had the matter gone to court, as the constitution requires, I'm sure Zelaya's first line of defense would have been to challenge this conflation of terms.  Luis Alberto Rubí, the Public Prosecutor, did just that.  In the first of four allegations against Zelaya, Rubi argued offense against the government, based on 328 No. 3 of the Penal Code.  This asserts that any attempt to consult the public was prohibited except for those defined as plebiscites and referenda, reserved to other government entities. [link]  Rubi's second allegation is treason, Art 2, 4, and 5.7 of the constitution.  5.7, Rubi claims, prohibits referenda and plebiscites that are a threat the stone article 347, which, if you look above, is a term limit article.  And this is important.  Although the ubiquitous article 239 appears nowhere until the post facto document from Congress, citing 347 automatically implies 239, in that the latter defines the former.  Art. 2 deals with "treason" - The supplanting of popular sovereignty and the usurping of the constituted powers shall be considered crimes of treason against the Fatherland.  Art. 4 deals with changing the form of government as treason.

Rubi's third allegation is abuse of authorith; failing to comply in judicial or administrative orders.  And the fourth and final allegation usurping the government, based on Rubi's idea that the public opinion poll (which he already has accused of being treasonous and illegal) should be carried out by the Supreme Electoral Tribunal.

All these allegations rest on two things: that Zelaya was trying to run for a second term and that a popular opinion poll was a referendum or plebiscite.  I believe that Zelaya's lawyers could have successfully defended him had the case gone to trial.  But it will never go to trial since due process has been so severely abused by the coup leaders.  I would think a simple motion to demurr would do the trick.

I personally believe that Zelalya was guilty of ignoring a court order, but my goodness, put that in perspective.  It's akin to Carl Rove ignoring a congressional subpoena.  The remedy? a public flogging in the form of an admonishment.  It doesn't rise to the level of treason or even a trial.

Kgb666 asks an important question: One big questionmark is what the actual referendum Zelaya tried to pull off would have accomplished.  While not a "referendum" the purpose of the opinion poll was obviously political.  Zelaya was handed a petition with 600,000 signatures from "the people" to have a constitutional assembly.  In the Nov. 2005 election in Honduras, there were 3,988,605 registered voter, and only 46% showed up at the polls.  That about 15% of registered voters who expressed their desire for a new constitution.  So how many other Honduran are unhappy with the existing constitution?  The result of the public opinion survey would indicate this, one way or another.  I don't think anyone but the most idealistic believed that the the poll would lead to the fourth ballot box.  Look at the procedure involved.  If the majority answered in the affirmative, the matter would go to congress, and congress have to decide with a 2/3rd vote to have the fourth ballot.  Chances of that, considering the political composition of congress, are just about nil.  The political power of the poll, however, is substantial. Those politicians who serve the interest of the oligarchs would have a difficult time boasting about how democratic they are.

This is from Adrienne Pine at Quotha:

Urgent Plea from Radio Progreso (my translation)

Sun, 08/16/2009 - 12:30 -- AP

Help! Our Voice, Radio Progreso and ERIC SJ

Our Voice in the political crisis:

Radio Progreso and the Team for Reflection, Investigation and Communication ERIC of the Jesuit community in Honduras

Saturday, August 15, 2009

HELP!

Radio Progreso was placed under siege by an army contingent the very day of the coup d'etat. At gunpoint and without a warrant, the military penetrated our facilities and forced us to silence our equipment.

On August 14th, our radio sent two of its reporters to cover the protest that the resistance front had organized in the city of Choloma, between San Pedro Sula and Puerto Cortés, in the north zone of the Honduran Atlantic. Radio Progreso would cover the events when the protesters were savagely attacked by the police contingent.

At noon, our reporter Gustavo Cardoza transmitted the news about the teargassing, the arrests, the physical attacks that the police were carrying out right and left on the protesters. All of the sudden, Gustavo Cardoza said that a policeman was pointing his weapon at him and immediately reported that other police were coming after him. Our reporter tried to run, and told them that he was a reporter for Radio Progreso. It was then that we heard his cries, and the blows that our reporter was receiving.

The transmission from our reporter was abruptly suspended. The police kicked him, hit him in the back, in the stomach, they threw him in a vehicle and laid him face down, and in the trajectory they kicked him, hit him with rifle butts, and attacked him with the worst possible insults.

Luckily, the Association of Lawyers in Resistance to the Coup and the Association of Judges for Democracy acted with speed and diligence, and although some of them were shoved and insulted, at the end of the day they managed to get the police to free our reporter and some of the other protesters who had been captured and tortured.

Before the world, we give testimony of our defenselessness. We raise our voice, our clamor before the community of international human rights organizations, because here, all those of us who oppose the de facto regime are exposed to barbarities, while the organisms of the state that are responsible for overseeing justice and human rights, instead of protecting us, point their accusing finger so that they can exterminate us. People of the world, don't leave us alone!

Having been an old rabble-rouser myself in the past, I know that feeling of no one caring about your cause.

One of Honduras' big newspaper, El Tiempo, has recently shifted its position on the military coup. Like El Heraldo and La Prensa, El Tiempo has backed the coup d' etat , but recently it has changed its course.  Al Giordano of Narconews gives us the story and some translations here.

Obviously, Police and Military beating of El Tiempo news staff is a factor in this shift of newspaper policy.  But I suspect it goes much deeper into the guts of Honduran politics and the economy.  Consider the two grafs Giordano pulled out and translated of yesterday's editorials:

The savage repression on Monday, August 3, in downtown San Pedro Sula turned out to be totally ineffective: beating and mistreating men and women who had demonstrated peacefully, as police have done since the day of the coup d'etat, didn't convince anybody of the legitimacy of said coup nor did it deter the protests. To the contrary, many people who were undecided were convinced that the use of violence and force against the people is what comes from dictatorships born of violence...

Any attempt, however small, to reduce the economic benefits of the few families that dominate Honduras in order to distribute them to the majority, is considered taboo. Raising the salary of workers, lowering fuel taxes, offering free education, establishing bonuses for farmers, caring for the forests, eliminating private contracts with the state, those were the detonators of the coup d'etat. And when an attempt was made to reform our obsolete Constitution to democratize political relations and permit the people to participate in decision-making that effects the lives of all, they overstepped their boundaries.

That's pretty blatant - two weeks ago El Tiempo wouldn't have published an editorial eulogizing Zelaya's accomplishments and define the oligarchy as a regressive force in Honduras.

The presence of Honduras at the negotiating table for a Central American trade deal with Europe now depends on reestablishing Constitutional order in our country. Until that is done, the negotiations will continue but without Honduras' participation.

That's because all the countries of the European Union decided, individually and together, not to recognize the de facto regime that surged from the military coup on June 28, and pulled their ambassadors from Tegucigalpa.

At the same time, all bilateral and multilateral support from Europe for Honduras has been suspended while the breaking of the Constitutional order persists...

Honduras, isolated by the international community because of the de facto regime, has rapidly lost opportunities for continued international support which is indispensable...

The same occurs in negotiations with the International Monetary Fund (IMF) and with other international financial institutions, thanks to the suspension by the United States of bilateral support...

The signing of an agreement with the IMF is right now fundamental for our country to be able to survive the economic crisis that was already present before the military coup but which has become unmanageable because of the breaking of the Constitutional order and the consequent recrimination by the global community toward a spurious regime and usurper government.

As such, the political crisis, defined by a sharpening of state and media terrorism and repression, the constant violation of human rights and the dictatorial escalations against a growing national resistance to the de facto regime has also brought economic suffocation that is worsening inexorably.

My take is that this gets closer to the reasons behind El  Tiempo's political shift.  Giordana mentions the owners of this newspaper, the Rosenthal family, and there's a political back-story here.  Jaime Rosenthal of San Pedro Sula is arguably the richest man in Honduras.  But the title also goes to Miguel Facussé from time to time.  Since Honduras is a full-blown plutocracy the influence of the goverment in terms of audits and accountability on the wealthy is very limited, so no one really knows the worth of the ruling families.

During the last election cycle, in the "primaries," Manuel Zelaya had a falling out with King-maker Miguel Facussé.  Facussé has a reputation of endorsing and financially underwriting candidates who will agree to consult with him on major decisions and give him the final say-so on how a vote would be cast.  Zelaya wouldn't agree to those terms.  Without Facussé's support, Zelaya turned to Jaime Rosenthal, who controls one wing of the Liberal Party, and Rosenthal picked up the tab for Zelaya's campaign.  Jaime Rosenthal had unsuccessfully ran for President several time over the years, and with his advanced age turned that ambition over to his son, Yani Rosenthal.  Zelaya is elected president, and Yani is appointed to his cabinet.  But Yani resigned his cabinet post inorder to run for the Liberal Parties presidential candidate, but was defeated by Elvin Santos.

So it's not surprising to me that El Tiempo would defect from the golpistas.  To the extent that ownership influences the editorial policy of a newspaper, my theory is that originally an assessment was made that the coup would improve business and the Honduran investment climate, but the net effect of sanctions, civil protest and the escalation of repression caused the Rosenthals to reconsider and change the position of the newspaper.

Hugo Llorens

Another interesting story from Narconews is Belén Fernández' report of a meeting between US Ambassador to Honduras Hugo Llorens and members of a human rights delegation from Global Exchange. 

LLORENS: It's a clear-cut case of a coup.
SHANSKY: Military coup.
LLORENS: Well, whatever you call it.

Llorens went on to explain that--regardless of whether you called it a coup, a military coup, or a coup d'état--"it's horrible," and that coup President Roberto Micheletti was comparable to Napoleon given the zeal with which he had grabbed the Bible and sworn himself in as president of Honduras. As for why Napoleonic behavior had not triggered the freeze in US aid required by Section 7008 of the US Foreign Operations Law, Llorens momentarily supplanted the discussion of millions of dollars flowing into Honduras courtesy of US-funded Millenium Change Corporation (MCC) with a discussion of how the joint US-Honduran military base at Soto Cano had been shut down.

When pressed by Global Exchange delegate Maria Robinson as to the definition of "shut down," Llorens explained that US troops were still there but that they were refraining from contact with their Honduran counterparts. Pressed once again by Judy Ancel on the issue of the MCC funds, Llorens claimed that 90 percent of the sum promised to Honduras had already been spent or was "in the pipeline" for such projects as highway improvement, which if interrupted would create a huge legal liability for the US government. Not addressed was why the US Foreign Operations Law was not also a legal liability, or why the "pause" Llorens described in US assistance to the Honduran government was "not a legal suspension but, you know, it's the same thing."

The rest of the article is very interesting.  Personally, I don't think the Millenium Change Corporation has legs - although it is interesting that Elvin Santos is one of the primary benefactors of the bucks that have been flowing into Honduras since the coup.  My prediction is that Santos will be the US's favorite candidate when and if the November elections transpire.  But I also don't think he'll win.  Carlos Reyes (if he is not murdered) will draw off many votes from Santos, and the far right National Party will have an advantage.