Congress vs. the Supreme Court: The Power Grab

From El Heraldo comes the text of the "report" drafted overnight by Congress on the Constitutional Branch of the Supreme Court:

FIRST. That the Supreme Court was composed by selection processes conducted by the National Congress, under the selection mechanism established in the Constitution of the Republic,  judges and magistrates being invested on January 26, 2009.

SECOND. That the Justices Rosalinda Cruz Sequeira, Jose Francisco Ruiz Gaekel, José Antonio Gutiérrez Navas, Gustavo Enrique Palma and Oscar Fernando Bustillo Chinchilla Banegas were selected for the Constitutional Branch of the court.

THIRD. The Constitutional Branch hears and resolves appeals as provided by law on constitutional justice, one of them being appeals of the constitutionality [of a law].

FOURTH. That this National Congress approved Decree 89-2012 containing the Special Law for Purifying the Police, which ran for a period of six months from the date of its publication in the Official Gazette, which happened on May 25 of 2012 ending its term on 25 November of that year.

FIFTH. Decree 89-2012 containing this special law was challenged on 26 June this year by a group of citizens, the appeal was admitted ordering the corresponding legal proceedings.

SIXTH. That according to the deadlines required by law on constitutional justice, the constitutional challenge is an expedited process because of the high level of interest it has for society to define in legal terms the constitutionality of the provision in question.

SEVENTH. It is widely and publicly known that that constitutional complaint was resolved by the Constitutional Branch on 27 November this year, when the decree 89-2012 was no longer in effect.

EIGHTH. That the complementarity of state powers specified in Article Four of the Constitution be understood or interpreted as the unit of criteria that should exist between the powers about state policies, which must respond to the national interest or common good. Public safety, as state policy, is a responsibility divided between the three powers in the context of their constitutional powers.

We see that things go off the rails here in the eighth paragraph. There is a long standing dispute between Congress and the Supreme Court in Honduras over who has the right to interpret the constitution.  Congress believes it is the sole branch of government that can interpret the constitution, and in 1999 amended article 218, paragraph 9 to give themselves exclusive power to interpret the constitution (also embodied in article 205 paragraph 10).  However, in May, 2003 the Supreme Court ruled that the changes to article 218 were unconstitutional, giving itself the power of judicial review of all interpretations of the Constitution.  Its ruling also invalidated article 205 paragraph 10. 

In response, Congress, at the time headed by Porfirio Lobo Sosa, considered passing legislation permitting them to remove a sitting Supreme Court Justice.  Instead, Congress, in a fit of pique, refuses to permit that decision to be published in the official gazette, a step supposed to be necessary to make the decision legal and final. (There are legal opinions that hold that the decision is legal without being published; Congressional decrees must be published, so Congress is holding the court to its requirements.)

So who has the authority to interpret the constitution remains a point of contention between the Court and Congress, that has resulted in both making claims of being the arbiter. 

In any comparable model of separation of powers, Congress, of course, cannot be the final interpreter of the constitutionality of the laws it proposes itself.

In paragraph eight of the "report" that led to the firing of justices, Congress is asserting a right which the Court says it does not have. 

Presumably Porfirio Lobo Sosa knew in 2003 that Congress did not have the authority to remove a sitting Supreme Court justice; otherwise he would not have thought he needed to introduce legislation to give Congress that power. 

No legislation has been passed in the meantime giving Congress that authority.

Having asserted this contested authority, the congressional report goes on to make what we presume Congress thinks is the review of "administrative" actions they claim guided the firings:

NINTH. In seeking to strengthen the National Police and give the Honduran people higher levels of security, the Executive Branch  and Legislature have made diverse ​​efforts, one of which is the process of implementing a reliable, expeditious and feasible method to purge the National Police as the body responsible in its various branches, to prevent, investigate and combat crime, to whose purpose and aim was oriented decree No. 89-2012.

TENTH. The Constitutional Chamber, in a four to one vote, with the dissenting opinion of Justice Oscar Fernando Chinchilla Banegas, decided to grant the appellants' appeal despite it being full knowledge of the members of that Board that the contested regulation was not in effect when issuing the resolution.

ELEVEN. The [finding of] unconstitutionality requires as a prerequisite that the challenged provision is in effect and the main effect is granted when the action is the repeal of that Act.

Here, Congress complains that the Constitutional Branch of the Supreme Court acted after the law had expired. They assert in paragraph eleven that a law must be in effect to be found unconstitutional. 

But that's not actually the case under Honduran Constitutional law. 

The Ley sobre Justicia Constitucional says that an appeal cannot be brought if there is no remedy possible under the law (Article 46, paragraph 5) or if the effects of the law have ceased (it is expired, paragraph 6).  These criteria apply to the admissibility of the appeal, and at the time the case was admitted, the law was in effect, and there was a legal remedy.

In a case that can be considered comparable in the United States, which has similar rules, the US Supreme Court ruled in 1964 that the 1798 Sedition Act, which expired in 1801, was unconstitutional.

TWELFTH. The decision issued by the Constitutional Branch, in our judgement, is not consistent with the security policy implemented by legislative and executive powers and leads to serious damage to the state because it means a setback in the progress made in the fight against crime and exposes the security of people and their property, leaving the State open to the possibility of expense of lawsuits by members of the National Police who have been separated pursuant to the Decree.

This is where Congress treads into reviewing the judicial behavior of the court, not its administrative actions, acting outside the Constitution and law of Honduras. 

The consistency of a decision with the security policy of a government is not a criterion for review of administration; it is a review of the judicial action.  This is pure politics and is Congress overreaching its powers and ignoring the constitution just as it did in 2009, weakening democracy even further in Honduras. 

This special [Congressional] commission in executing the mandate authorized by the National Congress supported by article 205, numbers 20 and 21 of the constitution of the Republic, recommend to this power of state that it analyze and evaluate the above events in their totality as put forth in the present report and proceed according to the criteria of this august body.

Given in the city of Tegucigalpa, municipality of the Central District, on the 12th day of the month of December of 2012.

Special Commission:
Rigoberto Chang Castillo
José Tomas Zambrano
Mario Alonso Pérez
Armando Calidonio
Marvin Ponce Sauceda
Orle Aníbal Solís

Not signing:
Olman Maldonado
Samuel Martínez

Congress did yesterday what it threatened to do in 2003 with the judiciary, and what it did do in 2009 with the executive branch: it grabbed power, damaging the rule of law and separation of powers in Honduras.