Separation of Powers 2 (the sequel)

We wrote before how Porfirio Lobo Sosa doesn't understand the Honduran Constitution's separation of powers.

Today he made that even clearer: he said that he would be forming a commission of jurists to examine whether the recent decisions by the Supreme Court were based in the law, saying

"The only [state] power without anything over it is the Judicial power; whatever they do or decide is the last recourse, which doesn't seem fair to me in the balance of power".

Yes, the Judicial branch is the ultimate arbiter of the law under the Honduran constitution, just as it is under the US constitution.

Apparently that's news to Lobo Sosa, and he knows what he thinks he can do about it:

"There are things that are not fair, them perhaps it is adhering to the Constitution, but I have the right as well to put in place jurists who will analyze for me if the decision of [the Supreme Court] really adheres to the Constitution of the Republic".

The only saving grace here is that Lobo Sosa isn't saying what he will do after his selected commission reports on their opinion of the Supreme Court's recent opinions.

There is no question the Honduran judicial system, including the Supreme Court, is politicized. We've blogged about the problems with the selection process for the court before. Heather Berkman's scholarly article on the subject provides a good analysis.

But the problem is not that the Judicial Branch has no oversight; the problem is in how the justices are selected for the Supreme Court. The problem is that the judicial system is partitioned as "spoils" by the two major political parties. The process is heavily politicized.

The selection process is spelled out in Article 311 and 312 of the Honduran constitution. Nominations are made by a commission composed of seven members:

(1) one Supreme Court justice, elected by 2/3 of the justices on the Supreme Court
(2) one lawyer, from the Lawyer's Union, elected by the assembly.
(3) The Human Rights Commissioner
(4) one representative from the Honduran Council of Private Business (Consejo Hondureño de la Empresa Privada (COHEP)) elected in assembly
(5) one representative of the Law Professors, election run by the National Autonomous University
(6) one representative of Civil Society
(7) one representative of the Workers Unions

The law that governs the operation of this group is Decreto 140-2001.

It calls for these people to get together and propose at least 3 nominations for each of the 15 places in the Supreme Court.

Members of the nominating committee cannot themselves be candidates for the Supreme Court, nor related to a candidate. Each representative comes to the committee meeting with a slate of up to 20 candidates proposed by their organization, which cannot be modified once it is proposed. They then discuss each of the candidates and vote to arrive at a slate of no fewer than 45 total candidates which are then proposed to Congress.

At this point, the nominating committee dissolves itself. Congress winnows the list down to 15 members of the Supreme Court, each appointed to 7 year terms.

In theory, it's a law designed to incorporate the views of a large part, though not all, of Honduran society. Campesinos are not represented, nor are indigenous people, for example.

In practice, it ends up being dominated by the political parties that control government. The Misión de Observación del proceso de selección de los nuevos miembros de la Corte Suprema de Honduras reported in 2008 that there was much pressure by political parties to make bargains on the slate of candidates. They wrote:

They [the Mission] received information from multiple sources about alleged irregularities in the elaboration of certain lists, and information concerning alleged political influence, which if true, only serves to undermine the selection process. The Mission also verified a widespread distrust in the selection process, and more specifically, a belief that the candidate lists are a result of political and powerful interest groups interferences.

The Mission reported that the selection criteria were not transparent, but seemed to be limited to the candidate's educational background and work experience with no attempt to determine the candidate's legal skills, philosophy, ideology, or ethical positions.

In 2008 the Congress voted on slates of candidates from the pool proposed by the selection committee. Two slates were created, sponsored by the two main political parties in Honduras, the Liberal Party and the National Party.

As a result, the current Supreme Court consists of 8 Liberal Party members, and 7 National Party members. Each of the current justices is a member of a political faction in one of the two major parties. For example, Tomas Arita Valle, who issued the legal warrant that precipitated and sanctioned the coup, belongs to the Liberal Party faction headed by former president Carlos Flores Facussé.

So it may not be surprising that Porfirio Lobo Sosa does not understand separation of powers, and the place of the Supreme Court in that separation of powers.

He is certainly free to appoint a panel to give him an opinion about the current crop of Supreme Court decisions with which he disagrees.

And there have been a lot of them. His 1 percent security tax, model cities, and the Evangelical Church Law were all found unconstitutional. It is the last of these that seems to have roused him to greatest outrage.

In response, he said

"They declared the law unconstitutional, a Court, but not God and we'll move forward until that law is valid because it is the law that rules and what the Honduran people want so they can be with God".

The Supreme Court found the Evangelical Church Law unconstitutional because it mandates that to be a legal "church" in Honduras, you must belong to the Evangelical Confraternity of Churches.

Lobo Sosa's legal options to make good on his promise are few. Any revision of the form of government and separation of powers would require major constitutional surgery, which in turn, would need the tacit approval of this Supreme Court, to avoid triggering another constitutional crisis.

Lobo Sosa has, oddly, been citing as support for his position the official Truth and Reconciliation Commission. That group suggested Honduras create a Constitutional Court to review the determinations of the Supreme Court. What is unclear is why they think that will help at all.

How do you select members of the Constitutional Court in order to avoid the politicization of the selection of justices that created the current set of problems with the Supreme Court? Wouldn't it be easier, legislatively and structurally, to change the way Supreme Court justices are selected, rather than trying to shoehorn in an entirely new level of court?

Coincidentally, just when Lobo Sosa is airing his unusual theories of constitutional separation of powers, on Thursday a delegation of German judges left Honduras after reviewing its legal system.

Their conclusion: it's worse than they thought. They indicated that there was impunity and corruption in the judicial system and that the Honduran justices where not up to the fight.

A new Supreme Court will be selected on January 25, 2015. There is no particular reason to think that changes will happen by then that would fix the broken selection system.

Meanwhile, we have the spectacle of a Honduran president, faced with decisions he doesn't like, proposing to institute some sort of ad hoc oversight to decide which decisions he really has to accept.

Anyone who thinks Honduras has a functional form of government should probably pause to consider that.