Honduras: Term Limits Drama 2.0 - how the Supreme Court declared the Constitution Unconstitutional

On April 22, 2015, the Constitutional Chamber of the Supreme Court of Honduras issued a decision excising several provisions from its constitution relating to the creation and protection of presidential terms limits; it also struck down related provisions in its criminal code. The practical upshot of the decision is that the country has gone from having some of the toughest presidential term limits in the world to having none.

The Court itself framed the decision as a pragmatic one that invalidated a provision intricately intertwined with the military coup that removed President Manuel Zelaya in 2009. But the Court’s decision, rather than forming part of the healing process from the traumatic events of 2009, is more likely a symptom of the continuing problem that framed the coup: elite manipulation of the constitution for a narrow set of interests.

The Troubled Recent History of the Term Limits Provisions

The constitution of 1982 contained some of the world’s most rigid and demanding provisions regarding presidential term limits. Under article 239, presidents were limited to one four-year term in office, and were prohibited from serving again in consecutive or non-consecutive terms. Article 374 made this prohibition completely unamendable by any procedure. And article 239, “the poison pill clause”, added a further protective layer, holding that a figure who attempted to change the prohibition would be removed from office and rendered ineligible for ten years. The one-term limit itself is not unusual by regional standards, but the unamendability provision and punishment for an attempt to change the term limit is less common. These extraordinary protections suggest that the presidential term limit was one of the centerpieces of the 1982 constitution.

These provisions played a major role in the constitutional and political crisis surrounding President Manuel Zelaya, which played out in 2009. Beginning shortly after he took power in 2006, Zelaya began suggesting that he would attempt to replace the 1982 constitution by calling a Constituent Assembly. This occurred within a broader context, where Zelaya was allying himself with the Venezuelan regime of then President Hugo Chavez. Opponents of Zelaya argued that the Constituent Assembly could not be called under the existing Honduran constitution, and more particularly that Zelaya’s efforts were motivated by an attempt to remove term limits and thus violated article 239, although Zelaya never admitted any intent to alter the term limits.

Despite court orders that the proposed consultation would be illegal, Zelaya moved forward with a “non-binding” citizen vote on whether a Constituent Assembly ought to be called. Several days before the proposed vote, Zelaya’s supporters broke into a military base in order to obtain ballots needed for the vote. In the early morning hours of June 28 2009, two days before the proposed vote, high-ranking military officials came to Zelaya’s residence and forced him to take a plane to Costa Rica. Later that day, the Congress met and held that Zelaya had been removed from office because of his violations of article 239 and that the President of the Congress, Roberto Micheletti, was now President of Honduras. While the Congress lacked any textual impeachment power under the 1982 constitution, as only the Supreme Court had apparent suspension and removal powers, its supporters argued that Zelaya had violated article 239 by advocating for changes to the term limit provision, and that this breach justified the Congress’ ex post destitution of Zelaya.

The removal of Zelaya initiated a difficult period for the country that included human rights abuses, an increase in criminal activity with the highest homicide rate in the world in 2012, a two-year suspension from the Organization of American States, and the loss of a considerable amount of foreign aid. Zelaya was never restored to power. As the Feldman-Landau-Sheppard analysis for the Truth and Reconciliation Commission of Honduras concluded, violations of the Honduran constitution marked each step of the then unfolding events. Zelaya had violated the Honduran constitution and Honduran law in pushing forward with the vote; Congress and the military had violated the constitution by removing Zelaya from power and replacing him with Micheletti. In the aftermath, domestic and international institutions called for a series of reforms to improve institutional performance and broaden democracy in the country.

Judicial Fragility and Elite Manipulation of the Constitution

Despite these calls, no real legal or constitutional reform efforts materialized. Instead, elite actors have continued to manipulate legal institutions and the constitution to serve narrow agendas. In late 2012, for example, the Congress (on initiative of the ruling National Party) removed and replaced four of the five justices on the Constitutional Chamber of the Supreme Court after those justices voted to strike down a politically-important law that gave the national chief of police sweeping powers to investigate and remove members of the police force.  Like the removal of Zelaya, the removal of these justices was illegal because the Congress, at the time, lacked any textual impeachment power. It attempted to legitimize its actions after the fact by passing constitutional changes that gave it such powers.

While the Supreme Court had previously stated that Zelaya’s attempt to change article 239 justified his removal, the packed Constitutional Chamber issued a decision excising Honduras’s presidential term limits. It acted on a complaint filed by an ex-president and fifteen legislators from the National Party. The Court purported to hear the case using the action of unconstitutionality, an instrument set forth in the Law on Constitutional Justice that regulates constitutional procedures and enforcement mechanisms along with their scope of applicability. Although the law states that the invoked mechanism is only available against laws, treaties, or constitutional reforms, in this case the effect of the decision was to hold inapplicable several provisions of the original 1982 constitution itself.

The technical analysis in the decision is strikingly weak. The Court hints at the doctrine of unconstitutional constitutional amendment, which holds that a proposed amendment to the constitution can be ruled unconstitutional if it is contrary to the fundamental principles or basic structure of the existing text. The standard logic of this doctrine, which is now quite popular both regionally and internationally, is that the amendment power is limited in order to preserve the more fundamental constituent power of the people themselves. But the problem in the Honduran case is that the term limits provisions were in substance at the core of the original 1982 project; they were not later amendments. Unprecedented in comparative jurisprudence, it seems doubtful that any doctrine could authorize the judicial invalidation of a part of the original constitution itself.

The Court also held that the term limits provisions in the constitution should be held inapplicable because they violated a number of human rights provisions like the right of free choice of voters and freedom of speech. The Honduran constitution in article 15 states that Honduran law makes certain “principles and practices” of international law ’its own’ but there is no clear mechanism through which Honduran courts may use international law to invalidate parts of the domestic constitution. Indeed, article 17 states that in order to ratify a treaty that affects constitutional provisions, the Congress should follow the procedures for reforming the constitution and should modify the constitution itself before the treaty is ratified. This suggests that the process of reconciling the constitution with international law is a political one and not a legal one in the Honduran system.

More importantly, the argument that the term limits provisions violate international human rights is strained, even though it is true that aspects of article 239 – particularly the provision sanctioning attempts to alter the provision – were drafted in a problematic way. The unconstitutional constitutional amendment doctrine is convincingly deployed in circumstances where proposed constitutional changes threaten to erode the democratic order. An important example was the Colombian decision in 2010 stopping Alvaro Uribe from holding a referendum to amend the constitution in order to allow him to run for a third straight term in office. Article 239 in contrast is both a part of the original 1982 constitution and a protection of, rather than a threat to, Honduran democracy.

Undergirding the thin technical analysis is a pragmatic judgment: in several unusual passages, the Honduran Court argued that article 239 is no longer necessary and may even be harmful to Honduran political development. It stated explicitly that the provision may have served a purpose at one time, but was no longer needed to protect Honduras. It also cited the final report of the Commission on Truth and Reconciliation for the proposition that the unamendable nature of the term limit may have contributed to the Zelaya crisis. The Court thus seems to argue that article 239 needed to be removed as part of the healing process from the 2009 coup. 

But the pragmatic arguments are unpersuasive. The idea that the rigid presidential term limit is obsolete and unnecessary because of the maturing of Honduran democracy rings hollow, since it played a central role only a few years before during Zelaya’s presidency. And while article 239 may have been problematic in certain respects, it is hard to conclude that the country is better off with no presidential term limit at all. Yet, this is precisely the effect of the Court’s decision.

The decision is emblematic of continued elite manipulation of the Honduran constitution for narrow interests, and thus of the failure of constitutionalism to act as an effective constraint on political power or as a generator of positive change. Those who opposed Zelaya in 2009 argued that his actions were so deeply problematic as to justify a military removal of a sitting president. They centered their arguments on article 239 and emphasized its prominence within Honduran constitutionalism. Six years later, many of these same actors have viewed the rigid term limit as an impediment, and thus had the Constitutional Chamber remove it.

Manipulation of a constitutional principle is not new either inside or outside of Latin America, and there are a number of recent examples of leaders seeking to extend or eliminate term limits.  Perhaps more noteworthy is the use of high courts to legitimize these maneuvers. The Ecuadorian Constitutional Court just last year held that President Correa could use the least demanding method of constitutional change to eliminate all term limits, which will involve only the Congress that his forces dominate, despite a careful and sophisticated constitutional design seeming to require a more difficult process involving the use of a referendum. Constitutional scholars and international policymakers might do some good by developing greater consensus around pro- rather than anti-democratic uses of tools like the unconstitutional constitutional amendment doctrine.

David Landau is a Mason Ladd Professor and Associate Dean for International Programs at Florida State University College of Law. He has published on comparative constitutional law and Latin American law, focusing on socioeconomic rights, judicial role, and democratic transitions. In 2011, he served as a consultant for the Truth and Reconciliation Commission of Honduras. He has also co-authored analyses of this decision with Brian Sheppard for ICONnect (the Blog of the International Journal of Constitutional Law) and the International Edition of the New York Times.