The Illegitimate Constitution

Montañas de la Sierra de Agalta, Olancho. Hond...

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Honduras IV: La constitución ilegítima

The Illegitimate Constitution

Jorge Majfud

The dialectical dispute over the legality of the violent process of removal from office and expulsion from the country of the president of Honduras has not reached closure. Months ago we explained our point of view, according to which there was no violation of the constitution on the part of president Zelaya at the moment of calling for a non-binding poll on the question of a constituent assembly. But at base this discussion is moot and rooted in a different problem: resistance by a social class and mentality that created the institutions of its own Banana Republic and seeks desperately to identify change of any kind with chaos, at the same time that it imposes repression on its people and on the communication media that oppose it.

The main argument of the authors of the coup in Honduras is rooted in the fact that the 1982 Constitution does not allow changes in its wording (articles 239 and 374) and establishes the removal from power of those who promote such changes. The Law of Citizen Participation of 2006, which promotes popular consultations, was never accused of being unconstitutional. On the contrary, popular participation is prescribed by the very same constitution (article 45). All of which reveals the scholastic spirit of its drafters, nuanced with a humanistic language.

No norm, no law can stand above a country’s constitution. Nonetheless, no modern constitution has been dictated by God, but by human beings for their own benefit. Which is to say, no constitution can stand above a natural law like a people’s freedom to change.

A constitution that establishes its own immutability is confusing its human and precarious origins with a divine origin; or it is attempting to establish the dictatorship of one generation over all generations to come.  If this principle of immutability made any sense, we would have to suppose that before the constitution of Honduras could be modified Honduras must first disappear as a country. Otherwise, for a thousand years that country would have to be ruled by the same wording.

The orthodox religious have tried to avoid changes in the Koran and in the Bible by counting the number of words. When societies and their values change but a sacred text cannot be altered, the text is salvaged by interpreting it in favor of the new values. This is clearly demonstrated by the proliferation of sects, isms and new religions that arise from the same text. But in a sacred text the prohibition against change, even though impossible, is more easily justified, since no man can ammend God’s word.

These pretensions of eternity and perfection were not rare in the Iberoamerican constitutions which in the 19th century attempted to invent republics, instead of allowing the people to invent their own republics and constitutions to their own measure and according to the pulse of history. If in the United States the constitution of 1787 is still in force, it is due to its great flexibility and its many amendments. Otherwise, this country would have today three fifths of a man in the presidency, a quasi-human. “That ignorant little black man,” as the now former de facto Honduran foreign minister Enrique Ortez Colindres called him. As if that weren’t enough, article I of the famous constitution of the United States originally prohibited any change in constitutional status with reference to slaves.

The result of a constitution like that of Honduras is none other that its own death, preceded sooner or later by the spilling of blood. Those who claim to defend it will have to do so with force of arms and with the narrow logic of a collection of norms that violate one of the most basic and undeniable natural rights.

For centuries, the philosophers who imagined and articulated the utopias that today are called Democracy, State and Human Rights said so explicitly: no law exists above these natural rights. And if such a thing were attempted, disobedience is justified. Violence does not originate from disobedience but from he who violates a fundamental right. Politics is for everything else. Negotiation is the concession of the weak. A convenient concession, inevitable, but in the long term always insufficient.

A mature democracy implies a culture and an institutional system that prevent breaks from the rules of the game. But at the same time, and for that same reason, a democracy is defined by allowing and facilitating the inevitable changes that come with a new generation, with the greater historical consciousness of a society.

A constitution that impedes change is illegitimate in the face of the inalienable right to freedom (to change) and equality (to determine change). It is paper, it is a fraudulent contract that one generation imposes upon another in the name of a nation that no longer exists.

Translated by Bruce Campbell

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