Thursday, June 10, 2010

Is the firing of justices actually legal? Part 3

In previous posts, we have considered how the offenses the Honduran Supreme Court's own spokesman cited contradict the claim that its dismissal of justices in opposition to the coup was not about their political stance.

We have examined how, as has become customary in post-coup Honduras, the Constitution is cited inappropriately as the authority for one of the dismissals.

The target of this constitutional charge, Tirzah Flores Lanza, was also said to have violated chapters 10 and 11 of the "Law of the Judicial Profession" (Ley de la Carrera Judicial), an offense she shares with Guillermo López. For López, this charge is specifically associated with his participation in demonstrations at Tegucigalpa's airport on July 5, 2009 by Hondurans hoping Mel Zelaya would be able to land and re-enter the country from which he was illegally expatriated.

The Ley de la Carrera Judicial, Decreto 953 of 1980, Chapter 10, enumerates the duties, rights, and those things that are "incompatible" with judicial service. It contains nine articles, making it hard to pinpoint specifically which of these the Supreme Court might be arguing was violated. But the most likely basis for this dismissal would be to argue that they failed to exhibit "irreprochable conducta pública y privada" ("irreproachable public and private conduct") as called for in Article 44 of Chapter 10. Alternatively, the offense in question might be that of "absenting him/herself during days or hours of work, except with permission" enumerated in Article 45. Chapter 11 of this law enumerates the offenses that may be committed by a judge, which includes such things as absenting themselves from their post.

Presumably, the court's claim to simply be imposing a penalty for unacceptable actions-- not for the opinions which led to those actions-- is based on an argument that being away from their assigned courts without permission was unacceptable, and in the case of Guillermo López, specifically, that his getting injured during a demonstration was not "irreproachable conduct".

What the spokesman for the Supreme Court did not mention is that Chapter 12 of the same law lists as possible sanctions fines; suspensions; and only third, firing. So even if the court is basing its action on the relatively broad rubric of "irreproachable action", the fact remains that it chose the harshest possible sanction.

Law professor Ramón Barrios was convicted of violating the Law of Organization and Attributes of the Courts (LEY DE ORGANIZACIÓN Y ATRIBUCIONES DE LOS TRIBUNALES), article 3, numbers 1, 4 and 6, prohibiting "judicial authorities from mixing themselves in attributes of other authorities or to exercise other attributes than those that the law determines", or sending "congratulations or censure for its actions to the Executive Power", or participating in "acts of political proselytism". This law, abbreviated as LOAT, is Decreto 76, originally passed in 1906. Article 3 concerns those things "prohibited for judicial authorities", with the specific numbers cited being included.

All this for first presenting and then publishing a legal analysis in his role as professor of law, explicitly exempted in the Constitution from the clauses concerning conflicts of interest. As Barrios himself said,
constitutionally I have the right to be professor in the university and the Court cannot intrude in my class, because what the law prohibits me is that I would pronounce about cases that come before me.

Barrios' lecture did not concern a case before him, but rather, expressed his analysis of the constitutional law and concluded that the removal of Zelaya from office was unconstitutional. What the Supreme Court appears to have done in his case is to go back to the most primordial law it could find, ignoring the more recent exclusions allowed for the exercise of legal teaching, and then bend even those numbers as far as they could to interpret presenting a legal argument about the claim of a constitutional succession as "sending a censure" to the Executive Power (actually, of course, it would be the Legislative Power whose actions Barrios questioned); and interpreting the legal opinion reached as political, and equating teaching with political activism.

In both cases, the Supreme Court shows itself consistent with its actions in 2009: using vague sections of legislative codes in ways that hardly seem self-evident, and applying them in the harshest possible way to suppress other opinions.

This is not the practice of interpreting the law; it is an attempt to silence dissent. And it leads to one conclusion, which is that the legal system in Honduras is fatally flawed.

1 comment:

phoenixwoman said...

Note also the lack of due process. While that is not generally adhered to in employment, one would think that judges would be sensitive to the appearance that they have placed themselves above any law.