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Honduras:

Constitutional Law Issues

August 2009
This report is provided for reference purposes only. 

It does not constitute legal advice and does not represent the official 

opinion of the United States Government. The information provided 

reflects research undertaken as of the date of writing. 

It has not been updated.
LAW LIBRARY OF CONGRESS 

HONDURAS 

CONSTITUTIONAL LAW ISSUES 

Executive Summary 

The Supreme Court of Honduras has constitutional and statutory authority 

to hear cases against the President of the Republic and many other high officers 

of the State, to adjudicate and enforce judgments, and to request the assistance of 

the public forces to enforce its rulings. The Constitution no longer authorizes 

impeachment, but gives Congress the power to disapprove of the conduct of the 

President, to conduct special investigations on issues of national interest, and to 

interpret the Constitution. In the case against President Zelaya, the National 

Congress interpreted the power to disapprove of the conduct of the President to 

encompass the power to remove him from office, based on the results of a special, 

extensive investigation. The Constitution prohibits the expatriation of Honduran 

citizens. 

I. What are the provisions, if any, in the Honduran Constitution for their Judicial Branch and the 

Legislative Branch (National Congress) to remove an elected President? 

The concept of the political procedure known as impeachment, previously contained in 

Article 205, Section 15 of the Honduran Constitution, was repealed by Decree 175-2003.1

 The 

provision, before being repealed, stated that the National Congress had the power to declare 

whether cause existed to file charges against the President and other high officers of the three 

branches of government. It did not, however, provide the procedure to follow in such cases.2

 

The same Decree also repealed Article 200 of the Constitution, which granted general immunity 

to the Deputies of the National Congress.3

 Therefore, currently, no public officer has immunity 

in Honduras. 

Regular judicial proceedings against the President may be heard by the Supreme Court 

based on Article 313, Section 2 of the Constitution, which grants it the power to hear cases 

against the highest officers of the State and the Deputies.4

 

1

 Decreto No. 175-2003 del 28 de Octubre del 2003 art. 1, LA GACETA, Dec. 19, 2003, ratified by Decreto 

No. 105-2004 del 27 de Julio de 2004, LA GACETA, Sept. 11, 2004. 

2

 Decreto No. 412-2002 del 13 de Noviembre de 2002, LA GACETA, Feb. 20, 2003, ratified by Decreto 154-

2003, del 23 de Septiembre de 2003, LA GACETA, Dec. 1, 2003. 

3

 Decreto No. 175-2003 del 28 de Octubre del 2003 art. 1. 

4

 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS, as amended, art. 313, § 2. The amended Constitution is 

available online, at http://www.gobernacion.gob.hn/descargas/leyes/ (last visited Aug. 7, 2009). The Constitution 

was originally published officially in LA GACETA, Jan. 20, 1982. 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -2

Until 2003, Article 313, Section 2 stated that the Supreme Court had the power to “hear 

cases against the highest officers of the State and the Deputies when the National Congress had 

declared that cause existed to level charges [against them].”5

 When this impeachment provision 

of the Constitution was repealed, Article 313, Section 2 was also amended by the removal of the 

last part of the provision referring to the procedure of the National Congress.6

 In addition, 

Article 304 of the Constitution grants the courts the authority to apply laws to specific cases and 

to adjudicate and enforce judgments.7

II. Did the Honduran Supreme Court have the authority under the Honduran Constitution to 

request that the military remove the President because the National Congress, the Supreme Court, 

the Human Rights Ombudsman, and the Attorney General found an action of the President 

unconstitutional? 

This question raises the following issues under the laws of Honduras: 

A. Whether the Supreme Court has the authority to hear a case (and consequently issue 

an arrest warrant) against a sitting President; and 

B. Whether the Supreme Court has the authority to order the public forces (fuerza 

pública) to carry out an arrest warrant against a sitting President. 

 

A. Authority of the Supreme Court to hear a case (and consequently issue an arrest 

warrant) against a sitting President 

Article 313, Section 2 of the Constitution grants the Supreme Court of Justice the power 

to hear cases against the highest officers of the State and the Deputies.8

 In harmony with this 

provision, the Code of Criminal Procedure provides that cases against these officers must be 

heard by the Supreme Court, following the procedures established in that Code.9 According to 

available sources, this procedure was applied in the case filed by the Chief Prosecutor (Fiscal 

General de la República) against President José Manuel Zelaya Rosales. On June 26, 2009, the 

Supreme Court, upon the Chief Prosecutor’s complaint, accepted the case and unanimously 

voted to appoint one of its Justices to hear the complaint in the preparatory and intermediate 

phases. The appointed Justice carried out the request to issue an arrest and raid warrant.10 

The Chief Prosecutor’s complaint before the Supreme Court was based on an 

administrative procedure filed before the Court of Administrative Litigation (Juzgado de Letras 

 5

 Decree 38-2001 of Apr. 16, 2001, LA GACETA, May 29, 2001, at 2 (translated by the author). 

6

 Decreto No. 175-2003 del 28 de Octubre del 2003, supra note 1, art. 2. 

7

 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 304. 

8 Id. art. 313, § 2. 

9

 Código Procesal Penal, arts. 414-417 (Editora Casablanca, Tegucigalpa, 2006). 

10 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available at the Judiciary website, 

http://www.poderjudicial.gob.hn (last visited July 8, 2009). 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -3

de lo Contencioso Administrativo), which was presented to the Supreme Court to support the 

complaint. This documentation may be summarized as follows: 

On March 23, 2009, President Zelaya issued Executive Decree PCM-05 2009 ordering a 

public consultation (Consulta Popular, or referendum) throughout the national territory so that 

the Honduran people could express their opinion as to whether, during the 2009 general 

elections, a fourth ballot box should be installed at the polling stations to decide whether to 

convene a National Constituent Assembly for the purpose of drafting a new political 

Constitution. The same Decree gave a mandate to the National Institute of Statistics (INE) to 

take charge of the survey.11

On May 8, 2009, the Chief Prosecutor, acting as guarantor of the Constitution, filed a law 

suit before the Court of Administrative Litigation requesting that the Court declare the illegality 

and nullity of the administrative act carried out by the Executive Branch under the Executive 

Decree.12

On May 26, President Zelaya issued another Executive Decree PCM-19-2009, rescinding 

the previous Decree and ordering a national poll (under the new title of Encuesta de Opinión 

Pública) on the same issue to be conducted on June 28, 2009.13 The next day, the Court of 

Administrative Litigation issued a ruling ordering the President to suspend the Public 

Consultation and all acts in its support.14 

On May 29, the Court of Administrative Litigation clarified its ruling, stating that: 

suspension of the consultation ordered on March 23, 2009, includes any other 

administrative act, whether general or particular, which has been issued or might be 

issued, whether explicitly or implicitly, by publication or lack thereof in the Official 

Gazette, which might be conducive to the same administrative act which has been 

suspended, as any other procedural consultation or question which may be designed to 

avoid obeying this ruling [of May 29].15

The same day, May 29, President Zelaya informed the Honduran people through the 

Secretary of Defense, that he had issued Executive Accord No. 027-2009, by which he ordered 

that a national public opinion poll be carried out by the National Institute of Statistics. The 

President also ordered the armed forces to lend logistical and all other necessary support to the 

National Institute of Statistics.16

 11 Expediente Judicial, Requerimiento Fiscal, Documentación Soporte – Punto No. 8, at 2, available at the 

Judiciary website, http://www.poderjudicial.gob.hn/ejes/Comunicados/ (last visited Aug. 5, 2009).

12 Id. at 2. 

13 Id. at 3. 

14 Id. 

15 Id. 

16 Id. at 3-4. 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -4

On June 3, the Court of Administrative Litigation issued the first judicial communication, 

through the State Secretary for the Presidency, asking the President to abide by the Court’s 

ruling.17 

On June 16, the Court of Appeals for Administrative Disputes unanimously ruled 

inadmissible the appeal filed by President Zelaya, who was represented by a private attorney, 

against the May 27 ruling of the Court of Administrative Litigation and the May 29 

clarification.18 

On June 19, the Court of Administrative Litigation issued a second judicial notification, 

through the State Secretary for the Presidency, to the President, requesting that he abstain from 

conducting any kind of public consultation that might violate the Court’s rulings of May 27 and 

May 29.19 On the same day, the Administrative Court issued a third judicial notification to the 

President, through the State Secretary for the Presidency, giving him five days to inform the 

court what measures he had taken in order to abide by the court ruling. No answer was received 

by the Court.20 

On June 26, the Chief Prosecutor filed a Criminal Complaint before the Supreme Court 

of Justice, requesting that Zelaya be arrested under an accusation of the crimes of acting against 

the established form of government, treason against the country, abuse of authority, and 

usurpation of functions.21 On the same day, the Supreme Court of Justice unanimously voted to 

appoint one of its Justices to hear the process in its preparatory and intermediate phases; that 

Justice carried out the request, issuing an arrest and raid warrant.22 Two days later, on June 28, 

2009, Zelaya was arrested.23 

After his arrest, on June 28, the military, acting apparently beyond the terms of the arrest 

warrant,24 took Zelaya out of the country.25 Under the Honduran Constitution, “[n]o Honduran 

may be expatriated nor handed over to the authorities of a foreign State.”26 

 17 Id. at 4. 

18 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 2, available at the Judiciary website, 

http://www.poderjudicial.gob.hn (last visited July 18, 2009). 

19 Expediente Judicial, Requerimiento Fiscal, Documentación Soporte – Punto No. 8, at 5, available at the 

Judiciary website, http://www.poderjudicial.gob.hn/ejes/Comunicados/ (last visited Aug. 5, 2009). 

20 Id. 

21 Id. at 1, 15. 

22 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available at

http://www.poderjudicial.gob.hn. 

23 Id. at 5. 

24 Assessment by the author based on the facts and the law. The ruling of the Supreme Court consisted 

only of an arrest and raid warrant. Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available 

at http://www.poderjudicial.gob.hn. 

25 The Crisis in Honduras, 111th Cong. 4 (July 10, 2009) (statement of the Hon. Guillermo Pérez-Cadalso 

before the U.S. House Committee on International Affairs, Subcommittee on the Western Hemisphere). Mr. PérezCadalso, who is a former Honduran Supreme Court Justice and Secretary of Foreign Relations, testified before 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -5

B. The authority of the Supreme Court to order the public forces (fuerza pública) to 

carry out an arrest warrant against a sitting President 

Article 304 of the Constitution grants the courts the authority to apply laws to specific 

cases and to adjudicate and enforce judgments.27 Article 306 states that the courts may request 

the assistance of the public forces (fuerza pública) to obtain enforcement of their rulings.28 

Under this legal authority, the Supreme Court ordered the Chief of the Joint Chiefs of Staff to 

implement the arrest warrant. 

III. Did the Honduran National Congress properly approve Articles of Impeachment of 

the President as provided for by the Honduran Constitution? 

As stated above, the concept of the political procedure known as impeachment, 

previously contained in Article 205, Section 15 of the Honduran Constitution, was repealed by 

Decree 175-2003.29 The Constitution does not contain an express provision giving the National 

Congress the authority to remove a President from office. Nonetheless, the National Congress 

apparently used several other constitutional powers to remove President Zelaya from office. 

Among them are the following: 

• Article 205, Section 20 of the Constitution gives the National Congress the power to 

“approve or disapprove” the administrative conduct of the Executive and Judicial 

Branches, the National Tribunal of Elections, and many other high officers of the State; 

• Article 218, Section 3 reaffirms this power by stating that the decrees issued by the 

National Congress in reference to the conduct of the Executive Branch cannot be vetoed 

by the President; 

• Article 205, Section 21 authorizes the National Congress to appoint special commissions 

for the investigation of matters of national interest; 

• Article 208, Section 5 grants power to the Permanent Commission of the National 

Congress to receive complaints of violations of the Constitution; 

• Article 205, Section 10 grants the power to the National Congress to interpret the 

Constitution; 

• Article 218, Section 9 reaffirms the Congressional power to interpret the Constitution by 

stating that Congressional resolutions issuing constitutional interpretations cannot be 

vetoed by the President; and 

 Congress as “a concerned Honduran citizen” and not as a government representative. Id. (printed copy of the 

statement in the collection of the author. 

26 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 102. 

27 Id. art. 304. 

28 Id. art. 306. 

29 Decreto No. 175-2003 del 28 de Octubre del 2003 art. 1, LA GACETA, Dec. 19, 2003. The provision 

basically stated that Congress had the power to declare if cause existed to file charges against the President and other 

high officers of the three branches of government. It did not, however, provide a procedure to follow. Decreto No. 

412-2002 del 13 de Noviembre de 2002, LA GACETA, Feb. 20, 2003, ratified by Decreto 154-2003, del 23 de 

Septiembre de 2003, LA GACETA, Dec. 1, 2003. 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -6

• Article 205, Section 12 gives the National Congress the power to receive the 

constitutional oath of the President and Vice-President of the Republic and to fill their 

vacancies where any of the officers were absolutely unable to discharge the powers and 

duties of the office [falta absoluta].30 

Article 242 of the Constitution, which provides the line of succession for the Presidency, 

and Article 205, Sections 12, 20, and 10, and Article 218, Section 9, referred to above, are 

translated below due to their relevance (the order in which they appear is based on the relevance 

of the subject matter): 

Article 242. In the temporary absence of the President of the Republic, the VicePresident shall replace him in his functions. If the absence of the President were 

permanent, the Vice-President shall exercise and hold Executive Power for the time that 

remains to complete the constitutional term. But if the Vice-President were also 

permanently absent, the Executive Power shall be exercised by the President of the 

National Congress, and, where the President of the National Congress is absent, by the 

President of the Supreme Court, for the time that remains to complete the constitutional 

term.31 

Article 205. The following Powers are assigned to the National Congress: 

Section 12: To receive the constitutional oath of the Office of President and VicePresident of the Republic [who have been] declared “elect,” and the rest of the 

officers for whom it chooses to grant leave and to accept or reject their resignation 

and to fill the vacancies in the case where any of the officers were absolutely 

unable to discharge the powers and duties of the office [falta absoluta].32

Section 20: To approve or disapprove the administrative conduct of the Executive 

Power, the Judicial Power, the Electoral Supreme Tribunal, the Comptroller 

General of the Republic, the Attorney General of the Republic, the Environmental 

Attorney Office, the Chief Prosecutor, the Ombudsman, the National Registry of 

Persons, and decentralized and auxiliary institutions of the State.33

Section 10: To interpret the Constitution of the Republic in ordinary sessions in a 

single term, with a two-thirds vote of all its members. Articles 373 and 374 of the 

Constitution may not be interpreted through this procedure.34 

 30 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 205, §§ 20, 21, 10 & 12; art. 208, § 5; & art. 218, §§ 

3 & 9. 

31 Id. art. 242 (translated by the author). 

32 Id. art. 205, § 12. (translated by the author). 

33 Id. art. 205, § 20. 

34 Id. art. 205, § 10 (translated by the author). 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -7

Article 218. Authorization [from the Executive] shall not be necessary, nor shall the 

Executive Power be entitled to veto the following cases and resolutions: 

 ... 

Section 9: In the interpretations to the Constitution of the Republic enacted by the 

National Congress.35

On June 29, the National Congress, after hearing a special report prepared and submitted 

by a special congressional commission on Zelaya’s actions, which was based on an extensive 

investigation prepared by the same commission,36 issued a decree in which many articles of the 

Constitution were invoked; key among them was Article 205, Section 20,37 translated above. 

The Decree provided that the National Congress: 

(1) Disapproved the President’s conduct of repeated violations of the Constitution and 

laws of the country and his disregard of the rulings and resolutions of the judicial 

authorities; 

(2) Removed President Zelaya from the office of the Presidency; and 

(3) Nominated the next person in the line of succession for the presidency, according to 

Article 242 of the Constitution. This person was the then-President of the National 

Congress, Roberto Micheletti, since the Vice-President had resigned from office six 

months earlier.38 

The question of which Constitutional provision gives the National Congress the power to 

remove the President still remains. As noted above, Article 242 does not grant the National 

Congress the power to remove the President, but does state the line of succession.39 Although 

Article 205, Section 12 was not invoked in the Decree, that Section gives intrinsic power to the 

National Congress and must be analyzed. Article 205, Section 12 does not grant Congress the 

power to remove the President, but only to receive the Constitutional oath of the President and 

other high officers and to fill vacancies in the case that any of the officers were absolutely unable 

to discharge the powers and duties of the office [falta absoluta]. 

The only other article germane to this issue is Article 205, Section 20, giving the National 

Congress the power to approve or disapprove of administrative conduct of the Executive Power. 

The reading of Article 205, Section 20 raises the issue of the meaning and scope of the word 

 35 Id. art. 218, § 9 (translated by the author). 

36 The report was read by Ricardo Rodríguez, a deputy of the Liberal Party. Congreso Destituye a Manuel 

Zelaya, LA TRIBUNA, June 29, 2009, available at http://www.latribuna.hn/web2.0/?p=14265&print=1. 

37 There is an apparent typographical error in the Decree in which art. 220, § 20 was cited. However, art. 

220 has no subsections, and in addition, it is not relevant to the issues at hand. Therefore, it is logical to consider 

that the reference was in regard to art. 205, § 20, which is applicable. 

38 An official copy of the text of the Decree is not available to date. An unofficial version was published in 

Congreso Destituye a Manuel Zelaya, supra note 36. See also Statement of the Hon. Guillermo Pérez-Cadalso, 

supra note 25, at 4. 

39 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 242, supra note 4. 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -8

“disapprove,” whether a congressional disapproval of the President of the Republic can be 

limited to censure or may also encompass the possibility of removal from office. An analysis of 

the facts of the case and the aforementioned constitutional provisions leads one to the conclusion 

that the National Congress made use of its constitutional prerogative to interpret the Constitution 

and interpreted the word “disapprove” to include also the removal from office.40 

A systematic reading of the different constitutional provisions dealing with the right of 

Congress to interpret the Constitution (such as Article 205, Section 10 and Article 218, Section 

9) also indicates that the Honduran National Congress has the power to interpret the Constitution 

with general effect. This task is performed through interpretative laws, decrees, or other acts.41 

One may conclude that the National Congress implicitly exercised its power of constitutional 

interpretation in the case of Zelaya when it decided that its power to “disapprove” the President’s 

actions encompassed the power to remove him. 

The fact that the National Congress did not cite all of the constitutional provisions 

granting it intrinsic powers,42 such as those mentioned in Articles 205, Sections 10, 12, and 21, 

does not imply that it surrendered or relinquished its constitutional powers. In other words, it 

must be assumed that when the National Congress issued its Decree removing President Zelaya 

from office, it used its powers as needed. 

Although the National Congress unanimously approved an alleged letter of resignation by 

Zelaya, dated four days before his arrest, no mention of this letter was made in the Decree issued 

by Congress removing the President from office.43 

IV. Did the Supreme Court follow up by holding a proper, constitutionally mandated trial 

of the President? 

As stated in the answer to question II(a), above, the Supreme Court, based on its 

constitutional powers, heard the case against Zelaya and applied the appropriate procedure 

mandated by the Code of Criminal Procedure. 

 40 This line of analysis was confirmed in an August 3, 2009, telephone interview with Mr. Guillermo PérezCadalso, a Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations. 

41 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS arts. 205, § 10 & 218, § 9. 

42 It is well recognized that the branches of government exercise their powers according to their 

constitutional mandate. Therefore, one of the branches may not exercise powers not expressly conferred by the 

Constitution. Likewise, a branch of government may neither delegate its constitutionally-mandated powers to the 

other branches of government, nor refrain from exercising them in the absence of an express constitutional 

provision. 

43 Congreso Destituye a Manuel Zelaya, supra note 36. It is believed by some in Honduras that Zelaya 

signed the letter on June 24, before his arrest, to make use of it after the referendum, when presumably the National 

Constituent Assembly was going to be initiated, on June 29, because Zelaya anticipated that he would be elected 

President of the Assembly. It also generally understood that that the letter was not included in the Congressional 

Decree because Zelaya denied writing the letter. Telephone Interview with Mr. Guillermo Pérez-Cadalso, a 

Honduran attorney who formerly served as Supreme Court Justice and Secretary of Foreign Relations (Aug. 3, 

2009). 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -9

The Chief Prosecutor filed a complaint (requerimiento fiscal) against President Zelaya 

before the Supreme Court on June 26, 2009. The complaint: (1) accused the President of acting 

against the established form of government, treason against the country, abuse of authority, and 

usurpation of functions; (2) requested that the Court order the arrest of the President; 

(3) requested that the Court notify the President of the facts alleged against him; (4) requested 

that the President’s testimony be heard; and (5) requested that the President be suspended from 

office.44

The Supreme Court, based on its constitutional45 and statutory46 powers, appointed one 

of its Justices to hear the process in the preparatory and intermediate stages. Following the 

procedure, the Justice admitted the complaint and issued an arrest and raid warrant.47 The 

process at the Supreme Court did not continue due to the events that occurred after Zelaya’s 

arrest. 

In light of the fact that Zelaya was formally removed from office on June 28 by the 

Congressional Decree described above, on June 29, the Supreme Court unanimously ordered that 

the proceedings be forwarded to the Unified District Trial Court48 to continue through the 

ordinary proceedings established by the Code of Criminal Procedure, “given that citizen José 

Manuel Zelaya Rosales is no longer a high-ranking government official.”49 These ordinary 

proceedings are the ones applied to regular citizens in criminal cases. 

V. Was the removal of Honduran President Zelaya legal, in accordance with Honduran 

constitutional and statutory law? 

Available sources indicate that the judicial and legislative branches applied constitutional 

and statutory law in the case against President Zelaya in a manner that was judged by the 

Honduran authorities from both branches of the government to be in accordance with the 

Honduran legal system. 

However, removal of President Zelaya from the country by the military is in direct 

violation of the Article 102 of the Constitution, and apparently this action is currently under 

investigation by the Honduran authorities.50 

 44 Expediente Judicial, Requerimiento Fiscal, Documentación Soporte – Punto No. 8, at 1, available at the 

Judiciary website, http://www.poderjudicial.gob.hn/ejes/Comunicados/ (last visited Aug. 5, 2009). 

45 CONSTITUCIÓN DE LA REPÚBLICA DE HONDURAS art. 313, Sec. 2, supra note 4. 

46 CÓDIGO PROCESAL PENAL art. 416. 

47 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 4, available at

http://www.poderjudicial.gob.hn.

48 The vernacular name of the court is Juzgado de Letras Penal Unificado. 

49 Corte Suprema de Justicia, Comunicado Especial, June 30, 2009, at 5. 

50 Telephone Interview with Mr. Guillermo Pérez-Cadalso, a Honduran attorney who formerly served as 

Supreme Court Justice and Secretary of Foreign Relations (Aug. 3, 2009). 
Honduras: Constitutional Law Issues– Aug. 2009 The Law Library of Congress -10

Prepared by Norma C. Gutiérrez 

Senior Foreign Law Specialist 

August 2009