Saturday, July 11, 2009
Zen and the art of constitution maintenance
Zen Buddhists use a meditative device called a kōan in their spiritual practice. What is the sound of one hand clapping? If a tree falls in the woods where there is no one to hear it —does it make a sound? We've all heard these. Essentially these kōans are paradoxical questions without one single objectively correct response. They are meant to enlighten in the asking —not the answer.
I am put in mind of these imponderables "inaccessible to rational understanding" as we've found ourselves discussing the Honduran "constitutional coup" here on this blog and as that conversation begins to develop around the country.
There is a less subtle mind that simply sees the events of the last weekend in June in Honduras as a military coup. Soldiers wearing ski-masks showed up one early morning, shot off their guns and dragged the president of the country away in his pajamas. The democratically elected president of Honduras was ushered out of office and out of the country at gunpoint.
Seems like a coup, sure enough.
The subsequent actions of the Honduran government and the newly installed replacement president might still give one to read the situation as obvious. The crackdown on the supporters of the ousted president who turned out to protest —the cracking of a few skulls, the arrest of quite a few of those protesters (and the journalists who were noticing) —shutdown of dissenting media outlets —even suspension of the constitution's core civil liberty protections. I know it seems like a coup —a plain old military coup.
But of course there are two sides to any question —and nothing is as simple as it seems. We are told, by the newly installed regime, that the military's actions were at the behest of the courts and the congress and that it was the president they deposed —President Zelaya— who was the threat to the country and its constitution (you know —the one they just gutted).
Zelaya sought to amend the constitution to allow himself to seek a second term in office —something expressly forbidden in the Honduran constitution. He had sought a non-binding plebiscite to demonstrate popular support for changing that provision and the congress and the courts had ruled that even that polling would be illegal.
And just so as to conclude all consideration of the question it is pointed out that this Zelaya was friendly with President Hugo Chavez of Venezuala... Enough said.
But here is where the inscrutable subtleties arrive. This Honduran Constitution we speak of, let us consider the art of its maintenance.
The government backed by the military (and vice versa) is correct to point out that the Honduran constitution expressly forbids amendment with regard to the president's term limits. In fact it is illegal to even "support" such a change —to support anyone who advocates such a thing—to even think about it.
Think about that.
What is a constitution that forbids its own amendment? —on any provision? Aren't constitutions practically in place to facilitate law and provide for lawful peaceful change? Were we here in this country to pass a constitutional amendment —say on any subject— and contained within it a proviso that it could never be subsequently amended —wouldn't that be... unconstitutional?
It is not uncommon for constitutions to make it very difficult to amend themselves —I'm animating documents here, actually it's the people who frame constitutions who make it hard to amend them —and I think that's the right idea —but to expressly forbid even the consideration or "support" of changing a specific provision —that's not a constitution at all. It's a Gordian knot.
Rightly or wrongly, whether you were pulling for him or not, that knot was what Zelaya was trying to untie. He wanted the plebiscite to demonstrate popular support for considering the contradiction. It's worth noting that the military that refused to cooperate with him in administering the plebiscite was itself contradicting the constitution in doing so. Under Honduran law the army is answerable to the president in electoral issues. But who's to blame them? With the congress and the courts saying one thing on one side and the president advocating differently on the other, it was left to the generals to decide.
And really —what could be wrong with that?
There are other puzzling peculiarities to the Honduran constitution, of course. For example there are no provisions for a presidential impeachment process —for the lawful removal of a president accused and maybe even guilty of high crimes. There are, however, some very specific provisions in place on the lines of succession should replacing a president become necessary—should he just happen to go missing.
(Even those who support the self installed regime and are glad to be rid of Zelaya agree the Honduran Constitution could use some work.)
And so, we have the questions.
When is a coup constitutional? When are ballots more dangerous than bullets? When does the vote a man might cast become a threat to his country? When is a constitution unconstitutional?
Like any good kōan these are questions without one simple answer. But how we try to answer does tell us something —something about ourselves.