Thank you so very much for this; Jaysus, Mary and Joseph, we get so very US-centric, and here you are every day paying such close attention to your friends and compatriots. I will leave you this gift from Luciano and Fernando Pavarotti; I think the panis Angelicus is one of the most beautiful pieces of music ever written;

http://www.youtube.com/watch?v=C4mD_EJttQk

Interesting analysis. I find this far more reasoned than most I've read (anywhere). It is a bit awkward how he blends narrative with legal analysis (though understandable I guess) - sometimes the legal opinions are hard to pull out of the story (especially in the first part). I read it in two parts: one the legality of Zelaya's referendum and two the legality of the legislative action. He doesn't address what I feel to be an equally important third question regarding the judicial decision to bring charges and issue an arrest warrant (IMO, without addressing that question it is difficult to honestly assess the actions of congress - who ostensibly were acting under the understanding that specific charges had been brought and court actions taken).

On the first broad issue: was Zelaya's referendum legal - he and I ultimately agree. I read his ultimate conclusion as:

Appropriate appeals were lodged against the verdict, but the judicial system reacted as might be expected, confirming the absurd legal reasoning which the verdict in question contained. The challenges rejected, the verdict, despite being nonsense, had to be obeyed.

I do take some issue with his declaration that the original verdict was nonsense. There are two parts to my question on this. First relates to Article 5, cited as the authority for the "Law of Citizen Participation." Zelaya attempted to use this law to circumvent, well, Article 5 of the constitution. A law implementing Article 5 (as Article 5 itself directs in paragraph 3) would still be subject to any restrictions in the constitution itself. Though quotes are used, this analysis presents an interpretation/summary of Article 5 not the actual text (it's a quite good summary IMO) - in addition to the stuff Orellana mentions, Article 5 also says this specifically:

The exercise of the vote in the consultations citizens is mandatory. It will not be subject to referendum or plebiscite projects aimed at reforming the article 374 of the Constitution. It also may not be used these consultations on matters relating to tax matters, public credit, amnesties, national currency, budgets, treaties and conventions and social achievements.

*Obviously* the entire point of the 4th ballot was to reform article 374. Wash it as many times as they like, the constitution seems to specifically prohibit consultations for the purpose proposed by Zelaya. If the "Law of Citizen Participation" draws it's power from Article 5, how can it step beyond the Article's constitutional restraints?

My other point is with the court clarification that the ban extended to any action in a "general or specific nature of a public consultation". Isn't that sort of like when you get told to stop poking your sister with a stick, so you drop the stick and start poking her with a pencil ... and mom yells "I said quit poking your sister!".

Both points are irrelevant because in a nation operating under law, when a judge makes a determination parties are required to obey.

The second part gets a bit weedy. But to me it seems like much of the legal premise is based on assuming that congress made the determination as to the legality of Zelaya's actions. This does not seem to be the case, there were formal charges brought and warrants issued by the courts by June 26th. The legislative action happened on June 28. According to the constitution (Article 238), eligibility to serve as president is dependent on full rights as a citizen. But there is this article that defines if a citizen has that status:

Article 41.- The quality of the citizen is suspended:
1. By auto imprisonment decreed by offense that merits more;
2. By conviction handed down by cause of crime; and,
3. By judicial interdiction.

It seems to me by the time congress met, points 1 and 2 applied to Zelaya based on court actions. Another way to interpret their declaration is as an acknowledgment of charges brought against him by the court that formed the basis for the decision. The Executive had already been officially censured by legislature on June 3rd and an investigative committee had also issued a finding regarding the charges against Zelaya that would also be a valid basis to make the determination (Article 205.21).

This is where I think Orellana's failure to address the Judicial actions that preceded the actions of legislature (by 2 days) leads his analysis to be off base. His analysis highlights my point:

Incapacitation, which is a penalty incidental to the penalty of imprisonment, may be special or definitive: the former is carried out in the event that the crimes are those of penalties less than five (5) years, and is applied for a particular post or political right (Art. 49, Penal Code). The latter is carried out when the crime deserves a penalty greater than five years and applies to all public posts (Art. 48, Penal Code)

Aside from any referendum-related charges against Zelaya, he was under an abuse of authority complaint for refusing to issue a budget as mandated in the constitution (thereby defunding all branches of government without direct access to the Petrocarbide account). That charge alone carries up to six years. Others that were brought carry more. The judiciary also executed an interdiction under Article 41.3 which seems to put Zelaya's removal from office firmly under the highlighted provision.

I get the point he's driving at, and maybe part 2 addresses the role of actual criminal warrants against Zelaya. But without that piece, I don't see how he can trivially dismiss legislature's actions as he attempts to do here. The legislature didn't level the accusations, the courts did and issued a warrant. Until Zelaya resolved that issue, he most certainly was "incapacitated" as far as presidential duties were concerned.

Honestly, I don't like the constitutional articles legislature picked to document the decision. If that were the only issue in a vacuum I'd say Zelaya would have a case to sue for reinstatement. And indeed, I imagine if they work out an amnesty to remove the issue of warrants and charges (which will also take an act of congress) legislature will likely declare the incapacitation was merely temporary based on suspension of rights due to court order.

Anyhoo ... I feel Orellana's program has a few bugs in it, but really like the way he set up the structure (he even managed to avoid too many sweeping political pronouncements). Interested to see what he addresses in part 2.

Also, Orellana held several cabinet positions in Zelaya's government (and was the first Honduran DA to try and prosecute war crimes against the military). He resigned as SecDef just before Zelaya's removal. IMO, Valenzueala should have chatted with him a bit before his hearing - an argument like this would have shut that assclown DeMint right up.

(yeah, yeah ... sorry ... wrote another book on your thread; finally had some time and figgered it was better than a hit-n-run "I've got a few quibbles")