The 2013 Presidential Race Begins......

The first poll of Honduran Citizens about the Presidential candidates is in, and it contains a surprise:  Xiomara Castro, the LIBRE Party candidate and wife of former President Manuel Zelaya Rosales is leading among all the presidential candidates.

The poll, conducted by CID-Gallup between January 14 and January 18, 2013 with 1256 likely voters surveyed, indicated that Xiomara Castro was in a statistical tie with Juan Orlando Hernandez, the National Party candidate and current head of Congress, 25% to 23%.

The poll indicates that if the election were held today, Xiomara would beat the other main alternative candidate, Salvador Nasralla of the Anti Corruption Party, by 6%.

In some ways the most interesting thing in the poll: Xiomara out-polled the Liberal Party candidate, Mauricio Villeda (who played a role in the sham "negotiations" by Roberto Micheletti after the 2009 coup) by 9%.

What this suggests: supporters of the more progressive end of the Liberal party may well have shifted to LIBRE, and this leaves the remaining part of the Liberal Party seriously weakened.

But the National Party is likely not overjoyed either. They probably not be in the position they hoped to be after settling their primary so expeditiously-- by not counting all the votes-- and supressing any internal contention after the primary ended-- by firing Supreme Court justices who might otherwise have admitted a request for a formal count of the actual votes.

There is obviously a long way to go before the election campaign in September, and the election itself in November. But unless someone finds something really funny in the sampling for this poll, it is clear that one legacy of the 2009 coup is a serious shakeup in electoral politics in Honduras.

Supreme Incivility

Major incivility broke out between Justices in the Supreme Court and the Chief Justice on Wednesday.

Last Friday in a unilateral move, Chief Justice Jorge Rivera Aviles wrote a memo transferring two of the sitting justices from one branch of the court to another.  Rivera Aviles ordered that Justice Raúl Antonio Henríquez Interiano be transferred from the Penal branch to the Civil branch of the court.  He further ordered that Justice Marco Vinicio Zúniga Medrano be transferred from the Civil branch to the Penal branch.

On Tuesday, the special Constitutional branch ruled the appeal of the firings by Congress of the Supreme Court Justices inadmissible by a 4-1 vote, with Justice Henríquez Interiano being the lone vote to admit the appeal.  Because of this, the appeal will now go to a special full Supreme Court of judges hand picked by Jorge Rivera Aviles from the appeals court benches.  A decision from this 15 judge special full Supreme Court (which only has three sitting Supreme Court justices on it) will be by majority vote.  I have no doubt they will vote to not admit the appeal.

Rivera Aviles' memo arrived on the desks of the transferred justices today, and they chose to publicly respond.  Justice Henriquez Interiano told the press on the Frente a Frente program this morning:

"It has never happened in the history of the Judicial Branch that a president, in an authoritarian way, rotates a justice from one branch to another."

This, he points out, is against the rules adopted to govern the Supreme Court, which states that right after being appointed, the Chief Justice assigns the justices to the different branches and they serve there until their term ends.  Henriquez Interiano told the press that the coordinators of each of the branches condemned the rotation.

We are not in agreement with this provision, we don't accept, and will never accept this because it violates the independence and right to employment that the judges we must have from the moment we are inducted into every branch of the court. 

He closed by saying he awaited Rivera Aviles' response, because unless he reverses himself, Henriquez Interiano will notify the Public Prosecutor of a possible crime committed by Rivera Aviles.

That was the nice judge.  Justice Marco Vinicio Zúniga Medrano exploded:

Well, your constant trips and the [political] heights in which you travel has not permitted you to notice that you haven't been capable, up to now, to define the procedures and precise and achievable goals, and therefore we don't clearly see our course.  What is clear is that with your "management style", the ship of the Judicial branch will never reach a secure port, because its captain is driving it at great speed, to an inevitable shipwreck in turbulent waters. I hope when this happens, that its not the captain who abandons ship first."

Zuniga Medrano pointed out that what Rivera Aviles did was illegal, violated the rules adopted by the Supreme Court in 2002, and anyway:

"To interpret it in any other way is only possible in the head of an ignoramus, a fool, or someone with a nervous tick caused by the ingestion of alcoholic spirits"

There's a lot more since Zuniga Medrano wrote a five page memo to Rivera Aviles.  He called for Rivera Aviles to respect the justices, as he wrote to them in May, 2009:

which you surely have forgotten, as the rumors in the hallways of the court indicate, because of the pathological vast intake of alcohol.

He went on

Cease your perverse intentions, recognize me not only as a magistrate of the Civil branch but also as its coordinator or to the contrary I will proceed to file the appropriate complaints with the Office of the Public Prosecutor of the Republic, for abuse of authority and in the National Congress so that they investigate your administrative conduct.
 

But I guess that's what you get when you conspire against your fellow justices in the Supreme Court.  The spokesperson for the Supreme Court indicated that Rivera Aviles would reply today, so stay tuned.

Not Really Model Cities Again

Juan Orlando Hernandez is determined to get new legislation approving Regimenes Especiales de Desarrollo (RED), what people have been calling "model cities", through the session of the Honduran Congress that ends this month.  To that end, he has introduced a new package of legislation.

He says this draft law takes into account the objections raised by the Supreme Court that made the previous law unconstitutional.  Uncommented on is why he did this, since he later got Congress to illegally dismiss the justices that found the law unconstitutional.  Might it be that they were right?  Oh my!

What he proposes is the establishment of 12 special kinds of entities:

international finance centers
international logistics center
autonomous cities
special economic zones
international commercial courts
special investment districts
renewable energy districts
zones with their own legal system
special agro-industrial zones
special tourist zones
mining zones
forest zones.

What Juan Orlando Hernandez has done is change the name, change the function, and keep the acronym.  This is meant to preserve the mental link to model cities, but this legislation is not about model cities.

The proposed entities are nothing like the previous Regiones Especiales de Desarollo proposed under the  unconstitutional law. Nor are these any kind of model city using either Paul Romer's or Michael Strong's definitions.  Forget everything you've read.  This is something very different.

These zones will all supposedly have "functional and juridical autonomy", although later in El Heraldo's brief description of this new system they say that conflicts will be handled either through arbitration or through a new branch of the existing Judicial system.  So that's clear, right?

There's a twist, though given Honduran electoral politics, not much of one: these new entities can only be established by a referendum and once established their charter can only be modified by a referendum of those who live within them.

The law will modify the Honduran constitution, which is why it's urgent to get it passed in the next few days, before this legislative session ends.  In Honduras, constitutional amendments must be passed by two successive sessions of Congress. More or less what Juan Orlando Hernandez plans is to bring this up as soon as January 19, then again right after January 25th when the new Congressional session begins. 

Article 294 of the constitution would be modified to divide the national territory into Departments (the existing administrative units, equivalent to states) and special zones:

The national territory will be divided into Departments and zones subject to special rules in conformity with Article 329 of this constitution.  Their creation and boundaries will be decreed by the national Congress.  The Departments will be divided into autonomous municipalities administered by officers elected by the people, as governed by law.

Also due to be modified is Article 329. It currently gives the government the power to develop economic plans, in consultation with its citizens and to set up whatever mechanisms are necessary to achieve these goals. El Heraldo does not give us the new language of this constitutional modification, but it will be the key to understanding these new special development regimes.  However, later in the day, Tiempo published the proposed language of Article 329 which seems to contain no changes to the existing language.

The new law would modify Article 303 of the Honduran Constitution, changing the rules governing how justice is administered.  The new Article 303 would read:

The ability to impose justice comes from the people and it is offered freely for the state, by magistrates and independent judges, only subject to the Constitution and the laws.  The Judicial branch is made up of a Supreme Court, special jurisdictions in regions of the national territory subject to special rules created by the Constitution of the Republic, by appeals courts, the courts and other dependencies indicated by law.

Again the modification here is to add the reference to special rules zones.  The key will be how justice in those special rules zones articulates with the Judicial branch, which notably is not spelled out in this change.

Along with Hernandez, the new law is being pushed forward by Congressman Rodolfo Irias Navas, a National party member and owner of TV stations (Channel 8 in Tela, Channel 45 in La Ceiba) and radio stations (Communicaciones del Atlantico, Radio El Patio of La Ceiba, Stereo 92 FM, Stereo 102.5 F, and Romantico 103.5 in La Ceiba, Radio Aguan in Colon, 91.5 and 92.7 FM in Tela).

(Irias Navas was also one of the spokespeople for the 2009 coup, who kept saying that the international community wasn't listening and would understand if they would only listen.)

Anyone who can read should see that this is not anything like the previous legislation, and that it's not about real development.  It's a law designed to benefit the monied class in Honduras that's responsible for underdevelopment, the class that sees the government of Honduras as its reliable income stream.

We're not the only ones to see it that way.

Analyst Raul Pineda pointed out that the reason this law is being rushed through is the urgent need for some in the oligarchy who owned or speculatively purchased lands they expected to be appropriated under the unconstitutional model cities law, to sell those properties for financial reasons.

Or as he put it: it's because a few people need to do business.

Third Time's the Charm?

Today Honduran Supreme Court Chief Justice Rivera Aviles named a new special Constitutional Branch of the Supreme Court. 

We are now up to the third Constitutional Branch named to hear the legal appeals concerning the dismissal of four Supreme Court justices in an illegal act by the Honduran Congress last December 12.

The first attempt at a new Constitutional Branch, formed when Rivera Aviles seated the four de-facto justices named by Congress, recused itself from hearing this case. 

The second, made up of Supreme Court justices who had signed a letter in support of the dismissed justices, recused itself because of personal friendship with the parties in the case.

Today Rivera Aviles named himself, Víctor Manuel Martínez, José Tomás Arita Valle, and Raúl Antonio Henríquez, all currently Supreme Court justices, to a specially constituted panel to hear the case, along with Judith Utrecho Lopez, head of the Judicial School.

The panel now has 72 hours to decide if it can hear the appeal.

Arita Valle, you may recall, is the justice who claims to have signed the secret warrant that purportedly authorized the military to arrest President Mel Zelaya in the coup of 2009, an action for which the US Embassy temporarily removed his visa to enter the US.

This third panel may still recuse itself because Justice Raul Henriquez did speak out against the firings as an unconstitutional act and more or less called the Chief Justice Rivera Aviles a liar when Rivera Aviles claimed not to have participated in negotiation sessions leading to the Congressional action with Juan Orlando Hernandez.

This latest attempt to set in place a hearing panel, by the way, exhausts the occupants of the Supreme Court. Should this panel recuse itself, Rivera Aviles will have to turn to appeals court judges, or the list of 30 nominees to the Supreme Court from last time that weren't elected by Congress to serve.

And meanwhile, the Honduran Supreme Court remains in limbo, with four current serving justices whose status has been questioned, and four others who seek to regain their position.

Its Legal Because I Said So: Porfirio Lobo Sosa Speaks

Porfirio Lobo Sosa is in denial.  He told the press yesterday:

What Congress did is constitutional and is legal.

This is proof by assertion in the face of objections from the legal profession, judges, and even his own Justice and Human Rights Minister, Ana Pineda, who believes that what happened is corrupt, and that the dismissed justices need to be reincorporated into the Supreme Court

But of course, Pineda's just there as window dressing.  No one in the Lobo Sosa government has ever bothered to pay attention to anything she says.

Then Lobo Sosa repeated his mantra of denial:

We should look ahead.

And presumably ignore the error ridden past that is his regime.

Then he dropped this gem:

With lawyers nothing ever is OK, some say one thing and others say something else; I respect lawyers because they exist for this, to make you see as truth what is not truth and the inverse.

Actually, Lobo Sosa will be hard pressed to find a lawyer (outside of Congress, that is) who is arguing anything except that Congress's actions in removing four Supreme Court justices were illegal and unconstitutional.

The consensus includes Human Rights Ombudsman, Ramon Custodio, who released his report on the events. He concludes that the four justices were dismissed in "an arbitrary, abusive, and defective act" by Congress.

But don't tell the President. He knows it was constitutional, because he said so.

Someone else in his administration, though, may have a better sense of law. Late Tuesday night, long after the original article was posted in El Heraldo's online edition, an edit was added at the beginning:

Lobo supports a reform of the Ley de Policía that would make the right to a defense prevail, the aspect on which was based the ruling of the fired magistrates concerning the purification decree.

So, now Lobo's position seems to be: it was entirely legal to fire the judges; and the law the judges found unconstitutional should be reformed to add back the missing constitutional protections, so the judges were right all along.

Perfectly coherent position. Almost like those lawyers who "make you see as truth what is not truth, and the inverse".

Supreme Recusal

When the US Embassy stated that a solution to the crisis about separation of powers would come from the Honduran Supreme Court, they endorsed a ludicrous legal process that got underway today.

To catch up: last week Chief Justice Rivera Aviles seated the four new de facto justices appointed by Congress, without comment. 

He did so despite his so-called statement of solidarity with the deposed justices, at least one of whom was sitting in her office in the Supreme Court building at the time.  No surprise since we surmised Rivera Aviles was actually in favor of the Congressional action.

In his role as Chief Justice he assigned the new judges to the Sala Constitucional, replacing the four deposed justices. He then asked them to determine if they could hear the appeal of unconstitutionality submitted on behalf of the four justices dismissed, and if they ruled they could, to issue their ruling on said appeal.

Let's be sure you understand this: the four justices whose appointment is at issue were asked by the Chief Justice of the Honduran Supreme Court to decide whether to hear an appeal of their appointment.

Today that group of four judges, plus Oscar Chinchilla, the lone justice in the Sala Constitucional not fired, took up the appeal of the four justices fired by Congress. They promptly recused themselves, sending the appeal back to Rivera Aviles for disposition.

Rivera Aviles' next step will either be to try and conform a special Sala Constitucional to hear just this appeal, selecting from the remaining justices, or he may turn to the list of 30 or so judges nominated by Congress as potential candidates for the court who were not chosen, to compose a special bench to hear this one appeal.

Since eight of the remaining justices on the Supreme Court wrote a letter supporting the fired justices, and therefore should recuse themselves from hearing this appeal, Rivera Aviles should be able to choose the judges he wants to hear the case from this judicial back bench, to craft the outcome he desires.

Meanwhile, Ramon Custodio, the Human Rights ombudsman, stated that if this case gets to the Interamerican Court of Human Rights at the OAS, it is given that the government of Honduras will lose the case and be condemned, yet again, by the court.  Custodio releases his own report on the incident tomorrow, so stay tuned.