Tuesday, December 22, 2015

Callejas Lauded for Pleading Not Guilty in FIFAgate

Rafael Leonardo Callejas Romero, National Party member and former president of Honduras (1990-1994), pleaded "not guilty" in a Federal Court in Miami, Florida to charges of money laundering racketeering, and bribery.

Honduran news paper La Tribuna labeled that a "master strategy". The reason why tells us a lot about justice in Honduras.

On December 3, 2015, the US Department of Justice unveiled charges against 16 more defendants in its on-going investigation into corruption in international soccer in the criminal investigation that is known as FIFAgate.  FIFA is the Federación Internacional de Futbol Asociacion.

The 16 new defendants were charged with 92 counts, including money laundering, racketeering, and wire fraud conspiracies.  The charges were announced after the overnight arrest in Switzerland that morning of the FIFA vice president, Alfredo Hawit, a Honduran citizen charged in the same indictment as Callejas.

Rafael Callejas, a member of the FIFA Television and Marketing committee, learned through the Justice Department release that he had been named in the indictment.

Subsequently the US government filed formal paperwork with the government of Honduras to extradite him to the United States.

Callejas originally decided to remain in Honduras and fight extradition, but on December 14 he boarded a private plane on a flight for Miami to turn himself in and face the charges.  The Honduran press later revealed that US Ambassador James Nealon had helped negotiate Callejas's return to the US.

On his arrival in Miami, Callejas was formally arrested and transferred to a holding cell.  Callejas was arraigned the next morning and pleaded not guilty to all charges.  Some Honduran press accounts had him returned to a holding cell. La Tribuna indicated that he traveled with a briefcase full of documents that name names as part of his proposed defense strategy.

Which brings us to the "master strategy" that La Tribuna announced in its December 21 edition.  We quote:
The defense of the ex-president, Rafael Leonardo Callejas, is resorting to a “master strategy”, legally speaking, by advising him that he declare himself not guilty, because now the US government must present its evidence, an expert told LA TRIBUNA.

At first glance this may not make sense to readers. In the Honduran legal system, despite judicial reforms, there is still an understanding that those charged with a crime who claim to be innocent must prove their innocence. The idea that the government always has to prove the guilt of the accused, fundamental to the US legal system, is thus not the norm, but rather, something that La Tribuna is seeing as the result of a great strategic move: pleading "not guilty" rather than "innocent".

In fact, La Tribuna helpfully expands on this understanding of the US legal system, seen through this peculiar Honduran lens:
The difference between the declaration of innocent and "not guilty" rests in the fact that in the first case, the accused has to present evidence to show directly his innocence; while in the second, the burden of proof is transferred to those who accuse him, according to the source.
Under the scenario of "not guilty”, it will be the federal attorneys of New York and the US Department of Justice that must provide sufficient evidence to demonstrate the guilt of the ex-leader, he added.

Think for a moment of the understanding of court procedure that this flawed explanation is reinforcing. Cleverly, Callejas is moving, not to prove his own innocence, but to challenge the accusers to come up with enough evidence to prove he is guilty. And it gets worse:
If they do not succeed in proving the charges, the judge will have no other alternative than to absolve him... although the case could remain open if in the future new evidence were to emerge, the interviewed expert specified.
The fact that bail has been accepted is a sign that the strategy worked, initially, but the decisive hearing will be the 16th of March, when the government attorneys will formally present the charges with the evidence of guilt, the source added.

There you have it: a Honduran vision of justice. The rest of the article offers the "information" that Callejas won't have to wear an orange jumpsuit because those are reserved for terrorists and violent criminals; and emphasizes how expensive the legal defense will be. But don't worry: his excellent legal team has come up with the brilliant strategy of pleading "not guilty", so now the prosecution is on the ropes...

Monday, December 21, 2015

Can Honduras meet the certification goals of the Alliance for Prosperity?

Tiempo reported today that the newly passed US budget bill includes money for, and suggests the implementation of, a Comision Internacional Contra la Impunidad y la Corupción en Honduras (CICIH), something the indignados have been calling for since they began marching in May of this year.

Tiempo did not get it quite right. The bill does contain authorization of funding for a CICIH, should Honduras implement it, but does not suggest or mandate that Honduras do so nor does it set a cap on support for one, if implemented. It provides that if Honduras or El Salvador establishes an International Commission against corruption and impunity, funds from the Central American Regional Security Initiative (CARSI) can be used to support them if the House Appropriations Committee agrees after consultation.

Which is not to say that the bill has no policy implications for Honduras, and for US relations with it. House Bill 2029, which passed and was signed by President Obama, establishes the appropriations for the State Department, including the authorization language regarding the Alliance for Prosperity in the Northern Triangle of Central America.

In reaction to concerns about continuing migration from these countries, Congress bars the disbursement of 25% of the approved funds to the Northern Triangle countries unless the Secretary of State can certify that these governments are informing their population of the dangers of traveling to the southwestern border of the United States; are combating human trafficking and smuggling; have improved their border security; and are cooperating with the US government and governments in the region to facilitate the return, repatriation, and reintegration of those that do not qualify for refugee status under International law. 

A further 50% of the funds for the Alliance are embargoed until and unless the Secretary of Sate can certify that each government meets twelve other criteria. In the case of Honduras, we think the State Department has its work cut out for it.

First the Secretary of State must certify in writing that each government is taking effective steps to
"establish an autonomous public accountability entity to provide oversight of the Plan". Honduras does not currently have such an entity that we can identify.

Next the Secretary of State must certify that each government is combating corruption "including investigating and prosecuting government officials credibly alleged to be corrupt."

In Honduras, there are far more identified cases of corruption than the Public Prosecutor's office has chosen to prosecute, and it has not prosecuted the most flagrant cases involving high status individuals in the National Party (the current ruling party in Honduras).

The Secretary of State is also charged to certify that these governments, including Honduras, has taken steps to "implement reforms, policies, and programs to improve transparency and strengthen public institutions, including increasing the capacity and independence of the judiciary and the Office of the Attorney General".

Honduras has recently been signatory to an agreement with Transparency International and the Asociación para una Sociedad más Justa (ASJ) to promote and encourage transparency in the Honduran government.

There's a conflict between what Honduras agreed to do with Transparency International, and what it is doing with the Ley de Secretos Oficiales, which allows the Honduran government to arbitrarily and unilaterally make anything it wants unavailable to the public for up to 25 years, an action taken despite strong opposition from groups like the ASJ and its own government transparency watchdog, the Instituto de Acceso a la Información Publica. In June of 2015 the Instituto de Acceso a la Información Publica issued a resolution ordering the Honduran Congress to reform the law to follow Article 72 of the constitution and other laws related to human rights and other agreements Honduras has entered into regarding transparency. To date, the Honduran Congress has refused to amend the law.

Honduras has taken baby steps towards training the judiciary and the office of the Public Prosecutor to better be able to do their jobs. While there's been a large financial investment in training, there is little to show for it. The Honduran government has agreed to implement the OAS sponsored MACCIH, but it largely shaped this program into yet another advisory group that will propose changes to the judiciary and Public Prosecutor's office. The current President and Congress have ignored at least four sets of recommendations for changes to the judiciary since the 2009 coup and we don't see any reason to expect the outcome this time will be different.

The Secretary must further certify that civil society organizations and local communities are consulted during the design of projects, and participate in the implementation of them. The lack of such consultation has been a constant concern for indigenous and rural communities faced with mining, hydroelectric, and other government approved projects.

Another certification required by the bill is that the Honduran government is taking effective steps to "counter the activities of criminal gangs, drug traffickers, and organized crime." 

Here the government of Honduras has a mixed record.  On the one hand, it has somewhat improved the national homicide rate, bringing it down to about 60 homicides per 100,00 population this year.  It has made numerous arrests of gang members and members of organized crime, but has successfully prosecuted none of them to date.  All high level members of organized crime in Honduras have been extradited to the United States for trial on charges here.  Extortion is rampant, kidnapping for ransom is on the rise, and mass murder, in which four or more people are killed in a single incident, is on the rise. Drug use within Honduras is increasing as well.

Another certification deals with the government taking effective steps to "investigate and prosecute in the civilian justice system members of military and police forces who are credibly alleged to have violated human rights, and ensure that the military and police are cooperating in such cases".

In theory this is already true under the Ley del Ministerio Publico of 1993.  However, the Public Prosecutor's office has to choose to prosecute the case, and has a miserable success record in court.

The Secretary of State will have to certify that the Northern Triangle governments are taking effective steps to "cooperate with commissions against impunity, as appropriate, and with regional human rights entities."  In Guatemala, the Public Prosecutor's office was slow to accept the help and guidance of its Comisión Internacional Contra la Corrupcion y la Impunidad (CICIG).  Honduras and El Salvador currently don't have such International commissions. Although there is sentiment in both places to establish them, that sentiment is just not in either current government.

Honduras recently boycotted a series of InterAmerican Human Rights hearings on judicial independence and the corruption of government institutions (see the videos of the hearings from October 22, 2015 on the linked page). Its absence was notable, and noted by the court.  It has, to date, ignored the finding of the InterAmerican Court that Honduras violated due process in dismissing three justices and a magistrate in 2010 for having opposed the 2009 coup.  In October, the court ordered two of the judges and the magistrate reinstated or paid lost wages. The Honduran government has done nothing to date, not even acknowledge the finding.  Ignoring and boycotting are not evidence of cooperation with regional human rights organizations.

The Secretary of State must also certify that the government will "support programs to reduce poverty, create jobs, and promote equitable economic growth in areas contributing to large numbers of migrants."

The Honduran Congress is barely moving here. Historically National Party governments, like the current one, have increased, rather than decreased poverty in Honduras. This is visible both in the percentage of the population living in poverty, and in the GINI index recorded each year for Honduras. We've written about this trend before (here and here).

The Secretary of State will have to certify that the Honduran government is taking effective steps to "create a professional, accountable civilian police force and curtail the role of the military in internal policing".

One could not certify that for Honduras today.  Not only is there no viable mechanism for removing corrupt, crime-linked police officers (everything done to date has been inconsequential), and no will to do so, but the current government is expressly in favor of militarizing the police and abolishing the civilian police force by progressively defunding it in favor of increased funding to the militarized police force it is building up from scratch.  Honduras is therefore unlikely to take steps under its current government to comply with this condition of funding.

The Secretary of State will have to certify that the government of Honduras is taking effective steps to "protect the rights of political opposition parties, journalists, trade unionists, human rights defenders, and other civil society activists to operate without interference".

In the Honduras of today, reporters, trade unionists, human rights defenders, and members of the opposition party all regularly receive death threats via text messages.  Many of those threatened either quit, or get killed.  The Honduran police don't have the staff to pursue something as high tech as tracing a text message source. The Honduran military intelligence group probably could do this, since they effectively have a tap on all Internet and telephone connections in the country, but haven't done anything about it.  Opposition parties in Congress are shut out of the public debate of bills by the leadership.

The Secretary of State must certify that the governments of these countries, including Honduras, are  taking steps to "increase government revenues, including by implementing tax reforms and strengthening customs agencies". 

Finally, the Secretary must certify the government of Honduras is taking effective steps to "resolve commercial disputes, including the confiscation of real property, between United States entities and such government."

Given the situation on the ground, it should be difficult for the Secretary of State to certify the Honduras of today is taking effective steps to meet these criteria. Unless it makes changes, Honduras might not have access to the funding it thinks it is going to receive under this program.

Friday, December 11, 2015

Keeping the US border safe...in Honduras?

On November 18, five individuals were detained by Honduran authorities when they tried to enter Honduras with questionable Greek passports.  Given the timing, in the wake of terrorist attacks in Paris, the story was widely reported in US media.

The passports contained inconsistencies that raised the concern of Honduran immigration officials who ordered their detention.  While it was widely reported from the first that they were Syrians, it was only on the 19th of November that Honduran officials were able to confirm their identities: four college students and a professor, all hoping to seek asylum in the United States.

The group arrived on an Avianca flight from San Jose, Costa Rica, to Tegucigalpa, on the evening of November 17. Some of the biometric data in the passports did not match the individuals, raising the concern of Honduran immigration officials, who then detained them. Greek officials reported that passports for people with those names had been stolen in Athens. Representatives of the Greek embassy of Honduras confirmed that none of the five spoke a word of Greek.

After these five were detained, Honduran immigration officials reported that one other individual, who tried to enter Honduras with a false Greek passport the previous Friday, had been denied entry and deported. Three days after the group of five were detained, three more people, reportedly a Syrian woman and two Pakistani men, were arrested after entering Honduras without proper documents, arriving over land from Nicaragua.

All this made it seem for a short while as if Honduras was a weak point in potential terrorism in the US, invoking fears that ISIS was sending people to infiltrate the US via the border with Mexico.

Never mind that getting to the US-Mexican border from Honduras is a daunting prospect, with Mexico responding strongly to US persuasion to stop refugees coming from Central America from reaching the US border. Even without the recent crack down, the route from Honduras to the US over land was hardly ever easy.

Within a week of the detentions in Honduras, it became clear to most international media that these five men were not the first wave of some subtle terrorist strategy.

Most English media dropped the story entirely. In an exception to this rule, the BBC reported on November 24 that the Syrians arrested at the Tegucigalpa airport had applied for asylum, "because their lives were at risk in their home country".

On December 1, Reuters reported that the men had been freed, and charges dropped, after they paid a fine equal to $450 each for falsifying documents, and that they were expected to be granted permanent refugee status on February 22, quoting a Honduran official saying
they had been warmly received by Honduras' Arab community, and were planning to stay in the Central American country.

How the group reached Honduras is a fascinating illustration of the routes taken by those fleeing Syria.

Authorities said that the group that reached Honduras traveled from Syria to Lebanon, Turkey, Brazil, Argentina, and Costa Rica before trying to enter Honduras.  Honduras' El Heraldo reported that the five fake Greek passports were acquired in Brazil, specifically because Greeks do no need a visa to enter Honduras, but Syrians do.

At least six people traveling on Greek passports, including the five detained in Honduras, entered Costa Rica on a flight from Argentina on November 11.  The sixth person, a woman, was detained  in San Jose, Costa Rica for questioning. 

Costa Rica and Honduras worked with Interpol to identify these individuals.

A check with Interpol found none of them had a criminal background.

On December 1, a Honduran court ordered their release after a plea bargain was reached.  The five Syrians signed a document in which they admitted to the crime of forging government documents (their fake passports) and were fined.  They were freed from prison, and the government of Honduras agreed to rule within the next 90 days on their application for refugee status. 

The Syrian and Lebanese Christian community in Honduras that is supporting their application are descendants of immigrants who themselves came to Honduras as refugees from the Ottoman empire in the late 19th and early 20th centuries.

None of these developments have been enough to stop the exploitation of the story, minus the actual outcome and the exoneration of the Syrians held in Honduras from any terrorist ties, by right wing media and politicians in the US.

Arguing against accepting any Syrian refugees in the US, just this week one state senator wrote
Throw in the five Syrian nationals on their way to the U.S. that were apprehended two weeks ago in Honduras with fraudulent passports and we have a clear picture of imminent danger.

"Imminent danger". 

From students and a professor fleeing violence, welcomed as refugees by one of the poorest nations in our hemisphere.

Separation of Church and State?

The Honduran constitution establishes Honduras as a secular nation, and calls for its elected and high government officials to be secular. 

So why are candidates for the Honduran Supreme Court using religious, not secular, grounds to make legal arguments in their public job interviews?

The Honduran Constitution is quite clear about the separation of Church and State.  It states in Article 77 that
"[The Constitution] guarantees the free exercise of all religions and beliefs without the pre-eminence of any one of them, when not contravening the laws and public order.  Ministers of the various religions may not hold public office or engage in any form of political propaganda by invoking religious motives or basing themselves in it, to the religious beliefs of the people.

Artículo 77. Se garantiza el libre ejercicio de todas las religiones y cultos sin preeminencia alguna, siempre que no contravengan las leyes y el orden público.
Los ministros de las diversas religiones, no podrán ejercer cargos públicos ni hacer en ninguna forma propaganda política, invocando motivos de religión o valiéndose, como medio para tal fin, de las creencias religiosas del pueblo."

Leonidas Rosa Suazo points out in his essay "Religion and the Contemporary Judicial System" that this principle has thus been encoded in a variety of Honduran laws, including the Ley de Codigo Penal (articles 210-213), the Ley de Policia y Convivencia Social (especially article 145, 149).

Likewise, there is clear juricial prohibition on the interaction of political parties and religion.  Parties or movements within them cannot advocate for a particular form of religion. 

There's clearly a tension between law and practice here.  The Lobo Sosa government established, and later was forced to abolish, a Ministro de Culto as a cabinet level position.  Lobo Sosa appointed the pastor of a specific evangelical church, Carlos Portillo, to the post.  The Honduran Supreme Court ruled unconstitutional both that position, and an associated rule establishing what a "religion" was to be. Lobo Sosa was forced to fire his Minister.

As Rosa Sauzo points out, the Honduran state fails spectacularly when it comes to refraining from placing religious obligations on its citizens.  The state assumes at times, that everyone is Catholic, or at least Christian, in the establishment of government holidays like Holy Week, and in the constant benedictions given at government and especially military ceremonies.  Public national prayer meetings are common, both in the government, and in the military. 

What Rosa Suazo doesn't address is the degree to which religion is the template and justification for legal reasoning, as manifest in the candidate interviews held this week.

The Nominating Commission, which will eventually give 45 names to the Honduran Congress to select 15 new Supreme Court Justices, held public hearings where it, and members of the public, questioned candidates for 20 minutes each on their ties to political parties and a variety of legal issues.  

The list of candidates currently stands at 97 candidates.  That list of 97 was whittled down from a larger list. Many didn't pass the lie detector and financial investigation portion of the preliminary investigation into candidates. Surprisingly, 10 candidates who failed that portion still are on the 97 person list.  Of the 11 current members of the Honduran Supreme Court who are seeking re-election to the court, only 4 passed the first stage of screening.

The US government has intervened heavily in the selection process.  

During the first phase, the US gave Honduras a list of 20 of the candidates that it argued needed to be eliminated from the list.  They were.  

During the current phase of candidate evaluation, the US government gave Honduras a list of 24 candidates that needed further investigation. The Nominating Committee has not decided what, if anything, it will do about the latest US intervention.  Those candidates will be interviewed with the others remaining on the list.

In this context the public 20 minute interviews began. On the first day, 11 candidates were interviewed. The interviews were structured so that the candidate was given 3 minutes for an opening statement, 12 minutes to hear and answer questions from the Nominating Committee, and 5 minutes to hear and answer questions from the sparse audience.  

First up was Celino Aguilera, currently a member of the Judiciary Committee, the committee that reviews judicial behavior and punishes Justices and Magistrates.  Asked about same sex marriage, he replied that religious and juridical precedents establish that marriage is between a man and a woman.

Candidate Servando Alcerro Saravia, a lawyer with a masters degree in theology and a doctorate in divinity, was asked how he would resolve a hypothetical case in which the Honduran Congress had approved same sex marriage and it was being challenged in court.  

He replied that the Honduran constitution doesn't allow same sex marriage, which is true.  Article 112 establishes that a man and a woman have the right to contract marriage and be equal under the law.  It specifically prohibits same sex marriages and excludes recognizing such marriages legally constituted in other jurisdictions that allow them.

However, he also said that he would have to take into account the universal guide that God established that marriage is between a man and a woman.  Asked if being a minister was compatible with being a judge, he replied that "Jesus Christ was chief lawyer (abogado de los abogados)" and "Lawyering comes out of Christian principles".

We don't know how many of the other candidates were, or will be, asked about same sex marriage.
The prohibition was only put into the constitution in 2004-2005, so this is an issue that seems to have emerged in parallel with the global move towards legalizing marriage equality. 

In the two cases where testimony was published in Honduran media, however, questioning about the issue is more illuminating the degree to which separation of church and state, called for in the Honduran constitution, has been eroded. It's one thing to cite Honduran law in support of a hypothetical legal decision. It is quite another thing to cite religion as the basis for possible action as a future Supreme Court justice.

And no matter what Servando Saravia thinks, the practice of the law in Honduras is not supposed to be based on "Christian principles". It is supposed to be based on legal precedent.