Honduras This Week Online Business & Economics

Decree 19-98 limits certain constitutional rights

By MELANIE WETZEL

In order to prevent looting in flooded areas as well as the unnecessary movement of vehicles, President Flores has issued a decree imposing a "Estado de Excepcion" that limits the rights of citizens and residents in Honduras for 15 days, beginning Oct. 30.

Article 187 of the Constitution of Honduras allows the president, in a council of ministers, to suspend Constitutional rights in times of emergency. In Decree no. 19-98, the rights guaranteed by Articles 71, 81, 84, 99 and 103 of the Constitution have been suspended for a period of 15 days.

Article 71 guarantees that no person can be detained for more than 24 hours without being brought before a judge, and judicial detention cannot exceed six days.

Article 81 guarantees the right to free circulation, and Article 84 states that no person can be detained without a warrant.

Article 99 establishes that a person's home cannot be violated by authorities without the consent of the person or written judicial order. Article 103 is the constitutional guarantee of private property.

The suspension of these Constitutional rights allows the implementation of a curfew, and offers the police and military more leeway in seeking evidence and apprehending suspected looters.

Included in the decree is the statement that any person who feels that their legitimate rights have been infringed by this decree may seek protection from the National Commissioner for Human Rights.

Constitution currently restricts land ownership in some areas

By MELANIE WETZEL

The Constitution is the highest law in the land. It organizes the form of the government and establishes certain "inalienable" rights for the citizens.

Most constitutions are divided into two sections, the dogmatic section that offers the fundamental guarantees and the organic section that designs the government.

Because it deals with the foundations of a country and the most elemental rights of the people, it is usually designed to be fairly static, and resist unnecessary changes. Since 1821, there have been 15 constitutions in Honduras. So much for static.

In any legal system there is a hierarchy of laws. The laws are created at different times by different legislators, and for that reason it is quite possible for there to be contradictions between laws.

The hierarchy is established to determine which law will be applied in case of controversy. The constitution is always at the top of this hierarchy. All other laws must be compatible with the Constitution, or they can be declared unconstitutional, and be overturned.

Constitutional laws are also the only ones that need a special procedure to be reformed. All other ordinary laws can be changed or modified by a simple majority vote in congress. To change or reform a constitutional law, a special procedure must be followed. The reform must be approved by a two-thirds majority, in one session of congress, and that vote must be ratified by a two-thirds majority in the next session of congress. This is an important distinction; rights guaranteed by ordinary laws can be easily changed whereas constitutional rights are more difficult to change.

As an example, we can look at the legislation related to private property and foreigners. In almost any country the right to own private property is a constitutional right. In Honduras it is also a constitutional right. But the constitution also stipulates that foreigners cannot own property near the coast or borders. There is an exception for urban property -- the constitution establishes that urban property will be regulated by law. The law 90-90 regulates this urban property and states that with some limitations, foreigners can own property in urban areas near the coast.

Law 90-90 is an ordinary law and it can easily be reformed. This will not affect people who bought land while the law was in effect, but if it were to be reversed then that land could not be sold to other foreigners.

The most stable and unchangeable law says that foreigners cannot own property near the coast or border. Congress is currently considering a reform of the constitutional prohibition of foreigners owning border or coastal properties.

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