Page last updated at 01:04 GMT, Friday, 6 November 2009

Honduras crisis: Role of the Supreme Court

One of the most controversial aspects of the current crisis in Honduras is the reinstatement of ousted President Manuel Zelaya.

The decision is in the hands of the nation's legislature but the plenary of the Honduran Congress cannot call for a vote without prior consultation with the Supreme Court.

Danilo Eyzaquirre
Mr Eyzaguirre suggested it was unlikely that Zelaya would return to power

At the moment, all eyes are on the recommendation to come from the judiciary which, though not binding, is requisite to the Congress's defining of the country's future.

In an exclusive interview, lawyer and spokesman for the Supreme Court of Justice Danilo Eyzaguirre talked to Cecilia Barria of BBC Mundo in Tegucigalpa.

Mr Eyzaguirre suggested it was unlikely that Mr Zelaya would return to power and said that the ousted president's negotiators had effectively "placed a noose around his neck" by accepting the terms of agreement signed under the auspices of the United States.

When will the Supreme Court pronounce on the reinstatement of Manuel Zelaya?

Congress has yet to apply for the interpretation of the pact of what happened before and after 28 June regarding the overthrow of Manuel Zelaya Rosales.

The (Supreme) Court will issue an opinion which will be forwarded to the Legislature and, although it is not binding, it does mean that it will not be taken on board. Remember that the agreement requires prior opinion from the Supreme Court of Justice, to be later resolved by Congress.

And how will the Court's opinion influence the MPs decision?

It is a legal criterion which is within the framework of what was established in the agreement. The Court has the capacity to interpret according to our laws.

There isn't a deadline, but how long could the Supreme Court take before issuing a statement?

It depends on the dimensions of the case and the interest there is in resolving the problem. The Court only votes on what it's asked to. There are 15 magistrates who will have to interpret what Congress asks.

When I interviewed General Romeo Vasquez he told me that he was not responsible for removing Manuel Zelaya, he was simply obeying orders from the Supreme Court. Is that the case?

There's something called "due obedience" but nobody owes due obedience to a senior civil servant who works on the margins of the law. Romeo received an order because President Zelaya said at one point "come and put the cuffs on me" because he was sure the armed forces and the police were on his side.

So the Supreme Court ordered Mr Zelaya's arrest. He was notified in his office and told not to do it.

So do you think General Romeo Vasquez did not make a political decision at that moment and that he only complied with what the Supreme Court was asking?

He obeyed the order. The only thing Romeo Vasquez could not agree to would be a judicial decision to kill Mr Zelaya. In other words you owe obedience to a superior, within in the framework of the law, that is what the law says.

That they went over the top because they sent him into exile, well that's another issue. That's what the courts are for.

So the decision to remove Mr Zelaya from the country was exclusively the army's, not the Supreme Court?

The Court issued the order to seize him. And the decision to remove him from the country was the army's because there is another element we call "state of necessity".

What's worse? Causing tragedy or removing Mr Zelaya? So they could argue for the defence of that issue - "a state of necessity" which must respect the courts.

And the agreement reached under the auspices of the US establishes there will be no amnesty. Do you think this will bring about a witch hunt in the next few months?

I don't think that will happen. For the moment we don't know what's going to happen. The opposing sides will have to decide these things before the state jurisdiction.

There are 18 orders of arrest against Mr Zelaya for 18 different crimes. That's not a witch hunt, that is simply carrying out the law. And if there is an accusation against Romeo because somebody believes he broke the law, he would also have to be brought to book. Or if (interim President Roberto) Micheletti broke the law, then he would be too.

And what will happen to these 18 orders of arrest if Zelaya is reinstated?

They will remain in place, they cannot be revoked. If Manuel Zelaya has these orders, he will have to go to prison, or maybe measures will be implemented so he can defend himself.

What sort of measures?

Well, you are allowed home but you have to go to court on a Monday or a Wednesday to sign a statement. You cannot leave the country and settle elsewhere. You don't lose your civil rights if you are not convicted. And if he is not convicted, the judge has the power to offer him alternative measures or send him to prison, that's the decision of the presiding judge in the case.

And is it likely Congress will reinstate Zelaya?

The thing is Congress does not have to reinstate Mel. The [document of] agreement does not state this.

Is there a problem with the interpretation [of the agreement]?

No, it's a problem with the media. Point number five states you have to go back to the situation before 28 June and then after 28 June. Before 28 June Mr Zelaya faced orders of arrest, on 28 June he was overthrown and after 28 June -as some people say - came the coup.

The government of reconciliation believes in the integration of politicians from all parties. Is that the right thing to do, when we are just two and a half months away from a change of leadership? I don't know, it's up to the MPs who have the last word on the subject. The document states the decision will be taken by the Congress following consultation with the Supreme Court and other bodies.

But some member countries of the Organisation of American States (OAS) are claiming delaying tactics are being employed here.

With respect, I'd like to say, not as a Supreme Court spokesman, but as Jose Daniel Eyzaguirre: we simply do not believe in the Secretary General of the OAS, Jose Miguel Insulza. The man has no personality and lacks judgment.

Someone to whom (Venezuelan President Hugo) Chávez referred as "that idiot Insulza", is now his superior. This man came here wanting to force us to break the law.

They are just looking after foreign interests. What credibility does Insulza have? None, because as you saw, his efforts didn't work, the US had to step in.

And how do you see the country at this juncture?

Families are divided. Who has caused this? The big guys. The poor people are the dead ones or those taking a beating. You tell me if we've relieved poverty and hunger in these countries. No we haven't, because those in government do not have the interests of the people at heart, they are only interested in their own advancement.

And do you think this agreement is dangerous?

Yes, there's a lot of uncertainty. The decision must be taken by Congress and no-one can guarantee that it won't be made on the fringes of the law, even though it states it must be within the framework of the law.

The agreement does not stipulate that Mr Zelaya should be reinstated. Where does it say that?

It doesn't, but some politicians say there was a secret agreement that Zelaya would come back to power …

This will come to light when Congress makes its decision. If Zelaya comes out of there, he's going to prison, if we follow the law and there's no pact or agreement with the Court. There may be with the MPs, but I doubt it, because we are really playing with fire.

But what do you think? Is Congress going to be in favour or against the reinstatement of Zelaya?

There's so much speculation ... they say that Chavez is meant to be sending $40 million to buy MPs, making a reference to something an American once said: that it's easier to buy a MP than a mule.

But based on the correlation of power in Congress, do you see the possibility of reinstatement?

Mr Zelaya has 20 [seats] and the others 44.

But the National Party could vote en bloc in favour of reinstatement, couldn't it?

Pepe Lobo [presidential candidate for the National Party] said the MPs are free to do as they like. They are not donkeys or mares who have to be told: "you sit there and don't move". They are free to make their own decisions.

With things as they are, do you think the agreement is going to fail, to fall apart?

I don't really know who the negotiators are for Mr Zelaya, but from the moment they did not negotiate an amnesty for him, they effectively sent him to the slaughterhouse. He has committed crimes and if there is no amnesty, then the slaughterhouse it is. Without an amnesty he'll have to face the law because nobody is above the law. Not even the president is above the law.

And what about those members of the Court who ousted Zelaya, will they not be subject to the law?

The Court did not oust him. The Court put out an order for his arrest at the request of the Public Prosecutor. The Prosecutor General of the Republic is the body which judges. The State Prosecutor is the Attorney General and the attorney said that what Mr Zelaya was doing was illegal. Why he said that, I don't know.

The Court simply executes the orders of arrest requested by the Public Prosecutor. They presented the order to the Court and the Court gave the order.

And could the lawyer be subject to a process of law?

No because he comes within the framework of the law. He said what Mel was doing was illegal.

And could General Romeo Vasquez be tried?

He could be, it depends if anyone asks him to be.

This Thursday the unity government is due to be formed, but Mr Zelaya said he should be reinstated first, what do you think?

Well, would you complain if you had a pistol held to your head? Who signed the agreement? Nowhere does it say he has to be reinstated tomorrow. It was signed by his representatives, who, in my opinion, put the noose around his neck.

If they didn't negotiate an amnesty for him then the man is finished because he has to come under the law. If an amnesty had been negotiated, Mel would be a free man.

But if Congress reinstates him as president, he can't go to prison.

He can be president and still be subject to the process of the law. Until you are sentenced you do not lose your rights. Reinstated or not, the 18 charges still stand. And Mr Zelaya could be detained somewhere other than a normal prison or the judge could apply other measures.

Do you think Mr Zelaya will be reinstated?

Unlikely. Unlikely, because of the way that document was signed.

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