Honduran Congress Consolidates More Power

If it wasn't clear to outside observers, it certainly should be now.  The Honduran Congress is bent on controlling every aspect of the government, and by control, I mean, removing any trace of the constitutionally specified independence of powers. 

Their current obsession is with disciplining the Supreme  Court.

The new Congressional session started on January 25 of this year.  Since they started this new session they passed the so-called model cities legislation (decreto 236-2012) that gives Congress the ability to transfer territory to the sovereignty of a foreign set of investors. 

Honduran analysts note that this law includes special tourist zones that could see the transfer of the Copan archaeological site to foreign control.

Congress also passed the law of political judgement (decreto 231-2012). The US Embassy seems to believe this is an impeachment law, but it isn't: it circumvents Honduran due process guarantees.  It would allow Congress to continue to do what it did illegally in removing Supreme Court justices in December, leading to the current constitutional crisis.

Under the law of political judgment, Congress now has the authority to remove Supreme Court justices or even Presidents because Congress doesn't like their policies. It supersedes the existing law that already allowed the Public Prosecutor to bring charges against any high government official, which would be heard in the Supreme Court, and could lead to removal from office (which is why the Honduran Constitution no longer has an impeachment procedure: they provided a due process procedure in the legal code instead).

Congress also passed the new Minerals and Mines law, which allows concessions to be given to foreign governments in addition to private companies. This law is potentially unconstitutional because it presents the same kind of sovereignty issues raised by the model cities legislation that was found unconstitutional by the now neutered Supreme Court.  The new law governs concessions of gemstone (Honduras has opals and other gemstones in commercial quantities) and metallic mineral mines for a maximun of two (non-metallic minerals) to five (metallic minerals) years starting from the issuance of an environmental license.  It splits the income from such concessions between the municipality in which the mine is located, and the central government.

Congress also restricted, though changes to Article 17 of the constitution, the international treaties and agreements in which the government can participate. This pre-empts the role of the executive branch. Congress has always had to ratify treaties; this way, they do not have to pay the political price for it.

But these are almost minor violations of the Constitution, taken with impunity knowing that they have already reshaped the current Supreme Court into a rubber stamp. What they did next is bolder, clearer, and completely guts separation of powers.

This was to pass a new set of constitutional amendments that restricts what the Justices of the Constitutional branch, and only the Constitutional branch, can do. It also strengthens the powers of the Chief Justice, who, current experience shows, can be an ally of the Congress against the court. 

To understand the new law, a reminder: the Honduran Supreme Court's Constitutional branch hears challenges to laws as unconstitutional. Their decisions have to be unanimous. If their decision is not unanimous, the next step has been for the full court-- including the justices of the Constitutional Branch-- hear the matter. The full court merely needs to reach a majority decision. Since the Sala Constitucional includes one-third of the full court, the idea is, the other two-thirds will clarify the signal.

The new law passed by Congress makes a mockery of that provision. It specifies that in the event of a non-unanimous vote by the Constitutional branch on a case, those justices cannot vote on the matter when the full Supreme Court meets, or participate in the deliberations. 

This amendment was concealed in a series of constitutional amendments passed without discussion at the end of the previous session, on January 24, 2012 (Decreto 237-2012).  Maybe Congress doesn't trust the justices they just appointed?  In the opinion of most lawyers in Honduras, this amendment will undermine judicial certainty in Honduras. It certainly reshapes the balance of powers, depriving the Supreme Court of autonomy in action.

But that wasn't enough. Congress also passed legislation that deprives citizens of the right to even appeal the constitutionality of a law! 

Congress put this in place because of threatened challenges to their newly ratified replacement for the defeated model cities law, establishing Regimenes Especiales de Desarrollo. Citizen appeals of the constitutionality of the original model cities law worked as the Honduran Constitution provided.

That won't happen again.

Citizens may now only challenge the constitutionality of rules implemented by the government to enforce a law. Although Congress has shown it has no difficulty passing sweeping changes to the Constitution, apparently it irritates them to have to get it right, legally. Now, all their laws are, by law, constitutional.

Isn't democracy wonderful?