Marco Cáceres di Iorio

The Impending Battle on Presidential Reelection in Honduras

It is widely believed in Honduras that President Juan Orlando Hernández will call for a public referendum within the next two years (probably before the primary elections in late-2016) to reform Article 374, which prohibits the reelection of a president. Okay, bear with me here, because it gets a little complicated. Article 374 also states that “in no case” can it or Article 373 be reformed. Article 373 states that any reform to the Constitution requires a two-thirds vote by Congress during an ordinary session of that body.

Ultimately, what President Hernández wants is to change Article 374 to allow at least it and maybe also Article 373 to be reformed. Once this is accomplished, Article 374 would allow for presidential reelection (at least once, maybe more) and possibly enable changes to Article 373. The goal of changing Article 373 would be to make it easier to reform the Constitution by requiring a simple majority of votes in Congress, rather than the current two-thirds — 86 votes. Assuming Article 373 were to be changed in this way, Mr. Hernández would then only need 65 of the 128 members of Congress to vote in favor of reforming Article 374 to allow for presidential reelection.

What the framers of the Honduran Constitution did back in 1981-1982 was extremely clever. Essentially, they locked Article 374 and Article 373 together so that it would be difficult to change one without first changing the other, thus making the overall process nearly impossible. So, for example, in order to reform Article 374, you would require a two-thirds vote by Congress, as specified in Article 373. Eighty-six of the 128 representatives would have to vote to reform. That’s an awfully high bar to clear. The framers sought to protect against any move to try and lower that bar by specifying clearly in Article 374 that “in no case” could Article 373 be reformed. Makes your head spin just thinking about it.

It was designed to be a foolproof system to defend against overly ambitious, power-hungry politicians seeking to enable a president to run for more than one term in office. To understand why the framers were so adamant in their opposition to more than one presidential term of four years, you have to go back and study the political history of Honduras prior to 1982, when the current Constitution was ratified. It was riddled with military and civil coups, as well as long-running dictatorships.

In 1982, Honduras was coming off of two decades of military coups and dictatorships. For eleven of those years (1963-1971 and 1972-1975), the country was ruled by General Oswaldo López — the remainder mostly by two of Mr. López’s military colleagues. From 1932-1949, the country was ruled by a hard-fisted dictator named Tiburcio Carías — Honduras’ version of Nicaragua’s Anastasio Somoza or the Dominican Republic’s Rafael Trujillo. You get the picture.

The framers of the Constitution did not trust would-be Honduran presidents to be satisfied with their allotted time in office. They believed that, once in office, a president would seek to remain there as long as possible by way of manipulation, intimidation, and corruption — much in the same way that President Hugo Chávez did in Venezuela for 13 years. They believed it was better to limit the amount of time a president could stay in power, so that any damage that he or she might do could only be but so bad.

Note, however, that Articles 374 and 373 alone were not sufficient to make the framers’ intricate system foolproof. So long as there existed the opportunity for the public to vote through referendum or plebiscite to reform Article 374, then it was conceivable for the system to come undone. That’s why the framers thoughtfully included the following language in Article 5: “The objective of a referendum or plebiscite shall not be to reform Article 374 of this Constitution.” Point, game, set, match.

… Well, not quite.

Nothing is foolproof in Honduran politics. On January 12, 2011, Congress, which at the time was led by Congressman Juan Orlando Hernández, voted 103-25 (far more than the two-thirds required) to reform Article 5 in a manner that relaxed restrictions on the range of issues in which the public can be consulted through referendums and plebiscites. In other words, Congress changed Article 5 to allow for the public to vote on whether to change the restriction on presidential reelection, as specified in Article 374. Were the public to vote in favor of this change, it would also have to vote to change the part that says that “in no case” can Article 374 or Article 373 be reformed.

But then you would still be left with how to deal with Article 373, which says that you need a two-thirds vote by Congress (during an ordinary session) to reform the Constitution. You could just simply add that the Constitution can also be amended by the will of the people through a public referendum. That amendment would either have to be passed by at least 86 votes, or it could also be approved by public referendum. However, there could also be a referendum on changing Article 373 to require only a simple majority of votes by Congress to reform the Constitution, instead of two-thirds. That would make it easier to reform the Constitution if you wanted to do it through congressional action rather than public referendum.

Mr. Hernández’s National Party controls 48 seats in Congress, so it would then only have to pick up an additional 17 votes — which it might easily pick up among the 36 representatives of the Libre Party. Yeah, interesting. Keep reading.

Either way, both Article 374 and Article 373 would be changed to allow the Constitution to permit presidential reelection, without having any of the language of the articles conflict with each other. The framers purposely created a complex web of provisions between Article 374 and Article 373 to make it a nightmare for anyone wishing to water them down. The key to keeping this web in place has always been Article 5.

Now, with the change to Article 5, the door is wide open. If the Hernández administration can manage to win a public referendum(s), in some combination with sufficient support from Congress, it may succeed in chucking the most important rule of the political game in Honduras — limiting a president to only one four-year term. This is the mother of all rules, because it is what has enabled the country to have peaceful transitions of presidential power every four years since 1982. The exception, of course, being in 2009 when President Manuel Zelaya was overthrown, primarily as a backlash to his moves to try and change the Constitution to allow for… you guessed it: presidential reelection.

Indeed, there’s a sort of surreal irony that both the conservative Mr. Hernández and socialist Mr. Zelaya, and most of their followers, back this rule change. That’s why it will happen. It is no secret that Mr. Hernández wants to run for reelection. What has not been explored at length is the likelihood that so does Mr. Zelaya, who has absolutely no intention of fading away. All those rumors about Xiomara running again to be Libre’s candidate in the 2017 presidential election… or the talented Rasel Tomé, or even the congenial Patricia Rodas? Smokescreens.

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