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Back to Honduras: Constitutional Issues and Authorities

The following is a list of authorities that the staff of the Law Library of Congress considers relevant to the events of the summer of 2009, which resulted in the removal of a sitting President.[1

1. Artículos Pétreos (Unamendable Provisions of the Honduran Constitution)

  • Constitution of 1982, article 373 (PDF, KB), sets forth the general procedures for amending the Constitution.
  • Constitution of 1982, article 374 (PDF, KB), lists the artículos pétreos, that is, the articles of the Constitution that may not be amended, which include the following provisions:
    • Procedures for amending the Constitution (article 373 (PDF, 1.21MB)).
    • This article (article 374 (PDF, 850KB)).
    • Form of government (article 4 (PDF, 935KB)).
    • Borders of the country (article 9 (PDF, 866KB)).
    • Presidential term of four years (article 237 (PDF, 820KB)).
    • Prohibition on Presidential reelection (article 239 (PDF, 1.38MB)).
    • Disqualifications for running for the office of President (article 240 (PDF, 1.42MB)).

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2. Role of the Fiscal General de la República (Chief Prosecutor) as a Guarantor of the Constitution

  • The powers and responsibilities of the Fiscal General de la República (Chief Prosecutor) concerning the Constitution are delineated in the Ley del Ministerio Público, Decree 228-93 (PDF, 1.19MB) (Law of the Public Prosecutor), La Gaceta (L.G., the official gazette of Honduras) Jan. 6, 1994:
    • Article 17 (PDF, 1.18MB) provides that the Chief Prosecutor is the head of the Ministerio Público (Public Prosecutor’s Office).
    • Article 1 (PDF, 1.19MB) sets forth the goals and objectives of the Ministerio Público, which include: “1–To represent, defend and protect the general interests of society[;]” and “3–To safeguard the respect for and compliance with constitutional rights and guarantees, and the primacy of the Constitution and the laws.”
    • Article 16 (PDF, 1.19MB) includes among the powers of the Ministerio Público: “1–To safeguard the respect for and compliance with the Constitution and the laws[;]” and “6–To file those lawsuits that are appropriate to enforce the civil, criminal, administrative, or disciplinary responsibilities for which civil or military officers and public employees have become liable by reason of or on occasion of the exercise of their public duties and functions, with the exception of those [lawsuits] under the competence of the Procuraduría General de la República (Attorney General’s Office) in accordance with the Constitution.”
    • Article 24 (PDF, 1.19MB) details the powers of the Chief Prosecutor, including, “2–To file legal actions and appeals, and to promote all incidental proceedings, to file defenses, and to promote the acts and procedures with which the law charges the Ministerio Público.”

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3. Jurisdiction of the Court of Administrative Litigation (Juzgado de Letras de lo Contencioso-Administrativo) in Proceedings Against Public Administration Officials

  • The powers and responsibilities of the Chief Prosecutor concerning the Constitution are stated under Part 2, above.
  • The Law on Administrative Litigation (Ley de lo Contencioso-Administrativo), Decree 189-87 (L.G. Dec. 31, 1987) (PDF, 1.64MB), contains the following provisions:
    • Article 1 (PDF, 1.62MB) (causes of action): “The present law regulates the Jurisdiction of Administrative Litigation (Jurisdicción de lo Contencioso-Administrativo) in charge of hearing causes of action submitted in relation to acts of the Public Administration with a general or particular character subject to Administrative Law.”
    • Article 2 (PDF, 1.62MB) (scope of application): “For purposes of the previous Article, it is understood that Public Administration [means]: a) The Executive Branch….”
    • Article 7 (PDF, 1.63MB) (jurisdiction of the Court of Administrative Litigation):
      1. Courts of Administrative Litigation, that shall hear cases as either trial courts or courts of final decision created by the Supreme Court of Justice, which shall [also] determine their location and jurisdiction;
      2. Courts of Appeal for Administrative Disputes, that shall hear cases as appellate courts, created by the Supreme Court of Justice, which shall [also] determine their location and jurisdiction; and
      3. The Supreme Court of Justice, as a court of casación [not an appeals court, but a court that quashes the rulings of appeals courts for errors of law].
    • Article 13(b) (PDF, 1.63MB) (standing):
      The following [persons and entities] may request the declaration of the illegality and the annulment of acts of a general or particular character of the Public Administration:
      1. Those with a legitimate and direct interest;
      2. State entities, public law entities, and any legal entities having the representation and defense of general or corporate interests, when the purpose of the complaint is to challenge directly acts of a general character of the Public Administration, provided that the challenged act affects them directly….
    • Article 101 (PDF, 1.63MB) (penalties for contempt of court):
      Those who violate the provisions contained in the present Chapter [referring to the enforcement of the decisions of the Courts of Administrative Litigation], shall be punished in accordance with Article 349 of the Criminal Code, without prejudice to the civil liability incurred by the harm or damages caused to the interested parties.…
    • Article 120 (PDF, 1.63MB) (suspension of the challenged act): “The filing of the complaint shall not prevent the Administration from executing the [challenged] act itself, unless the Court or Tribunal approves the suspension [of the challenged act] when petitioned by the complainant.”
    • Article 121 (PDF, 1.63MB) (grounds for the suspension of the challenge act): “The suspension [of the challenged act] shall proceed when the execution of the [challenged] act would cause harm or damages, the reparation of which would be impossible or difficult.”
    • Article 122 (PDF, 1.63MB) (timing of the suspension): “The suspension [of the challenged act] may be requested in any stage of the proceedings, both at the trial or the appellate levels, and shall be reviewed separately.…”

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4. Procedures for the Review of the Conduct of High Officers of the State and Deputies

4.1 Criminal Procedure

Code of Criminal Procedure

Removal of Immunity Provisions from the Honduran Constitution

  • The Constitution of 1982, article 200 (original text) (PDF, 507KB) gave immunity to members of Congress. However, Chapter VI (“On the Executive Branch”), articles 235-245 (PDF, 509KB) did not grant immunity to the President of the Republic.
  • The Constitution of 1982, article 205, § 15 (original text) (PDF, 507KB) granted Congress the power to approve the formación de causa [removal of immunity for purposes of civil actions or criminal prosecution] against the President, his Designados (Designates, consolidated into the position of Vice-President in 2003),[2] members of Congress, Justices of the Supreme Court of Justice, members of the National Electoral Tribunal, the Chief of the Armed Forces, Secretaries and Under-Secretaries of the Cabinet, Chiefs of Diplomatic Missions, the Comptroller and Deputy Comptroller, the General Attorney and Deputy General Attorney, and the Director and Deputy Director for Administrative Integrity. It did not, however, set forth the procedure to follow in such cases.
  • Legislative Decree 31-2000 (PDF, 267KB) (L.G. May 29, 2000), which ratified Legislative Decree 92-99, amended article 200 of the Constitution of 1982 granting immunity to members of Congress, by adding immunity for the high officers mentioned in article 205, § 15 of the Constitution.
  • Legislative Decree 31-2000 (PDF, 267KB) also granted Congress the power to approve the formación de causa against members of Congress and the high officers mentioned in article 205, § 15 of the Constitution, but modified the list of officials subject to that provision.
  • Legislative Decree 154-2003 (PDF, 531KB) (L.G. Dec. 1, 2003), which ratified Legislative Decree 412-2002 of November 13, 2002, added certain high officers to the list contained in article 205, § 15 of the Constitution of 1982.
  • Legislative Decree 105-2004 (PDF, 454KB) (L.G. Sept. 11, 2004), which ratified Legislative Decree 175-2003 of October 28, 2003:
    • Repealed article 200 of the Constitution of 1982, thus removing immunity for members of Congress and the high officers mentioned in article 205, § 15.
    • Repealed article 205, § 15, of the Constitution of 1982, thus removing the need for the formación de causa from the Constitution.
    • Left intact article 205, § 20, of the Constitution of 1982, on the congressional power to approve (“aprobar”) or disapprove (“improbar”) the administrative conduct of the President.
  • Constitution of 1982, article 319, § 2 (original text) (PDF, 313KB) granted the Supreme Court of Justice the power to hear cases against high officers after the formación de causa was approved by Congress.
  • Legislative Decree 105-2004 (PDF, 454KB) removed the last part of article 313, § 2 (designated article 319, § 2 in the original text of the Constitution of 1982) referring to the approval of formación de causa against high officers by Congress.

The Deliberative Process of the Supreme Court

  • The Internal Regulations of the Supreme Court of Justice of Honduras (PDF, 542KB) (Reglamento Interior de la Corte Suprema de Justicia, Accord No. 04-2002, dated June 20, 2002) do not contain any specific provisions related to the days, times, or places for the deliberations of such Court.
  • The following provisions of the Internal Regulations of the Supreme Court of Justice of Honduras (PDF, 542KB) indirectly relate to the topic:
    • Article 12 (PDF, 530KB):
      Calls for en banc meetings shall be made by means of a written notice sent by the President of the Court to the Justices composing the Court within at least 48 hours, except in cases of emergency as defined by the President. The minutes [of the meeting] must contain a reference to the call for the meeting, and of the documents supporting the matters to be dealt with, when applicable.
    • Article 13 (PDF, 530KB): “The Court shall hold its meetings on the days that are necessary for the expedient review of the matters subject to its review.”
    • Article 17 (PDF, 530KB): “The Chambers shall hold their meetings during the days that are necessary for the ordinary review of the matters subject to their decision.”

The Meaning of “Fuerza Pública” in the Honduran Constitution

The Use of Force in the Execution of Arrest Warrants

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4.2 Congressional Procedure

Congress' Power to Interpret the Constitution

  • The Constitution of 1982, article 205, § 10 (current text) (PDF, 1.31MB), explicitly gives Congress the power to interpret the Constitution.
  • Legislative Decree 2-99 (PDF, 327KB) (L.G. Jan. 26, 1999), which ratified Legislative Decree 245-98 of September 19, 1998, repealed section 10 of article 205.
  • The Supreme Court decision of May 7, 2003 (PDF, 46KB), consistent with Legislative Decree 2-99, stated that:
    We do not find in article 205 and in any other article of the Constitution, the power of Congress to interpret, in general and in the abstract, any provision of the Constitution....
  • The Supreme Court decision of May 7, 2003 (PDF, 46KB), acknowledged the implicit powers of Congress to interpret the Constitution, stating:
    This Supreme Tribunal does not deny that the Legislative Branch may and must interpret the Constitution, given the fact that it is one of the constitutional actors [“operadores”] par excellence, since, as it holds the power to create the law, it must do so in accordance with the guidelines on form and content provided in the Constitution; the same is true when it interprets secondary authorities, a task that it must perform within the context of the Constitution; and for that purpose it must, obviously, interpret the Constitution…. [See page 7, para. 2, of the Supreme Court's decision.]
  • Legislative Decree 241-2003 (PDF, 456KB) (L.G. Mar. 10, 2004), which ratified Legislative Decree 276-2002 of August 8, 2002, reinstated section 10 of article 205 with the following text:
    The National Congress shall have the following powers: … 10) To interpret the Constitution of the Republic in ordinary sessions, in only one legislature, with two-thirds of the votes of its total members. Constitutional articles 373 and 374 may not be interpreted through this procedure.

The Power of Congress to Approve or Disapprove the Administrative Conduct of the President

Supreme Court Decision of 2003 and the Presidential Veto Power Over Congressional Interpretations of the Constitution

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Prepared by Norma C. Gutiérrez
Senior Foreign Law Specialist
and
Dante Figueroa
Senior Legal Information Analyst
and
Kersi B. Shroff
Assistant Director of Legal Research
November 2009

  1. The English translations set forth herein were provided by staff members of the Law Library of Congress. [Back to Text]
  2. Legislative Decree 153-2003 (PDF, 518KB) (L.G. Nov. 29, 2003) amended the original text of article 239 of the Constitution of 1982 to substitute “Vice-President” for “Designate.” [Back to Text]
  3. At the time, Honduras was a member of the United States of Central America. [Back to Text]
  4. Honduras was a member state of the short-lived Federal Republic of Central America. [Back to Text]
  5. The Supreme Court's decision was neither published by Congress in La Gaceta nor by the Supreme Court in the Gaceta Judicial. Not all Supreme Court decisions are published and publication is not required for validity. The President of the respective chamber of the Supreme Court determines which decisions will be published. [Back to Text]

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Last Updated: 02/28/2014