Is the firing of justices actually legal? Part 2

An article published in La Prensa on May 6, that demonstrates clearly the political nature of the charges against the dismissed justices, gives what to date appears to be the only source to identify sections of the legal code these justices are said to have violated.

Adán Guillermo López, who was disciplined for having participated in the popular demonstration at Tegucigalpa's airport on July 5, 2009, was charged with violating the duties outlined in Articles 10 and 11 of the Law of the Judicial Profession (Ley de la Carrera Judicial).

Ramón Enrique Barrios, punished for an analysis he presented as a lecture, that was published in August of 2009, under a claim of academic freedom in his role as a law professor, was said to have violated the Law of Organization and Attributes of the Courts, article 3, number 1

that prohibits the judicial authorities from mixing themselves in attributes of other authorities or to exercise other attributes than those that the law determines, and according to number 4 it is prohibited to send congratulations or censure for its actions to the Executive Power. He violated numeral 6 that prohibits the participation of judges in acts of political proselytism.

Tirza Flores Lanza, accused of leaving her job in San Pedro Sula on June 30 and take part in unspecified "actions", is said specifically to have violated the "duties, incompatibilities, and conduct established in chapters 10 and 11 of the [Law of the] Judicial Profession"; of not having asked permission to go to Tegucigalpa; of providing legal service against the code governing her position; and of violating Constitutional Article 319 that prohibits Judicial Power officers from "participation in meetings of partisan type of any type".

Quite a combination of violations: from a constitutional requirement to the laws governing the legal profession and the organization of the courts. But what do all these cited codes actually say? if there is one thing we have learned in the last year, it is that in Honduras, citing a law does not actually mean the law supports what you say it does.

Let's start with the Constitution. Article 319 is part of the section (Chapter XII) on the Judicial Power. It reads in full:

ARTICULO 319.- Los jueces y magistrados prestarán sus servicios en forma exclusiva al Poder Judicial. No podrán ejercer, por consiguiente, la profesión del derecho en forma independiente, ni brindarle consejo o asesoría legal a persona alguna. Esta prohibición no comprende el desempeño de cargos docentes ni de funciones diplomáticas Ad-hoc.

Los funcionarios judiciales y el personal auxiliar del Poder Judicial de las áreas jurisdiccionales y administrativa, no podrán participar por motivo alguno, en actividades de tipo partidista de cualquier clase, excepto emitir su voto personal. Tampoco podrán sindicalizarse ni declararse en huelga.

[Article 319. The judges and magistrates will lend their services in an exclusive form to the Judicial Power. They shall not exercise, for that reason, the profession of law in an independent form, nor dedicate themselves as counsel or legal advisor to any person. This prohibition does not include discharging the office of teacher nor Ad-hoc diplomatic functions.

The judicial officials and auxiliary personnel of the Judicial Power in the administrative and jurisdictional areas, cannot participate for any reason, in activities of a partisan type of any class, except to exercise their personal right to vote. Nor can they unionize nor declare themselves on strike.]

These constitutional requirements are intended to prohibit justices from having a private law practice, or conflicts of interest due to acting as a legal advisor, or for participating in "actividades de tipo partidista". This is what Tirzah Flores Lanza is accused of doing: and this means the court must be interpreting "partidista" here as meaning something rather more broad than the normal interpretation of this word in the Constitution.

While I have translated it here in its widest form, as "partisan", partidista actually comes from the root partido, of or pertaining to parties-- political parties. In the Honduran Constitution, the first reference to this cluster of meanings comes in Chapter III, Article 37, in the enumeration of rights of the citizen, including to "form political parties". The second instance is in Chapter IV, which deals with suffrage and political parties.

"Partidista" first occurs in Chapter V, concerning electoral functions, in the first appearance of a bar on political party participation by members of the Tribunal Supremo Electoral. The second appearance of the word comes in Chapter X, article 293, defining the police as "apolitical in the partisan sense". The third and final occurrence is in the bar on political partisan activity by members of the Judicial Branch.

In context, then, the cited section of the Constitution is about participating in political party actions.

But what Tirzah Flores actually did on June 30, the date for which she is accused, was to sign an important early legal declaration against the coup, a filing by a group of judges, magistrates, and others in the legal profession who rapidly became the Asociación de Jueces por la Democracia de Honduras, for which Tirzah Flores became a prominent spokeswoman.

Far from a partisan or political-party effort, this group has insisted that the judicial branch of Honduran government has lost its status as nonpartisan through its overt support for the coup d'Etat. The evidence for that position has been strengthened by the Supreme Court's insistence on persecuting members of this opposition group on flimsy legal grounds.