OAS calls for new elections in Honduras

Today witnessed a series of press conferences in the contested Honduran election.

Shortly after the OAS Mission said it would be making a statement late today, the Tribunal Supremo Electoral announced its own announcement would be made earlier in the day.

Not surprisingly, given previous statements, the TSE's announcement was their conclusion that the presidential election had been won by Juan Orlando Hernández, of the Partido Nacional. Neither the Partido Liberal nor the Alianza formed by two opposition parties, the Partido Anti-corrupción and LIBRE, have accepted the vote tallies posted by the TSE, alleging a number of different kinds of fraud.

There is also a potential legal issue left unaddressed: whether the candidacy of Hernández was entirely legal. The current president ran for an unprecedented second term under a Honduran constitution that prohibited even talk of re-election, until a Supreme Court he shaped while head of Congress ruled otherwise. The Supreme Court ruling opened the door to re-election. But lawmakers in Honduras did not pass any legislation authorizing re-election. Technically, then, this is not just an unprecedented election outcome: it is one that took place outside any defined legal framework.

Both the European Union and the Organization of American States are on record as seeing the electoral process as problematic. While the EU released a statement today that many read as supporting the TSE's conclusion, the OAS today signaled more reservations, beginning with statements by Secretary General Luis Almagro on Twitter.

These were expanded in the OAS announcement this evening that the Secretary General of the OAS cannot provide certainty about the results of the election. The press release reiterates previous descriptions of the electoral process as "characterized by irregularities and deficiencies" and of "very low technical quality" and "lacking integrity".

The press release continues:

in the face of the impossibility of determining a winner, the only road possible for the winner to be the Honduran people is a new called to general elections, within the strictest respect for the rule of law, with  guarantees of a TSE that would enjoy the technical capacity and the confidence of the citizenry and the political parties.

This is followed by the appointment of a commission from the OAS of ex-presidents Jorge Quiroga and Alvaro Colom to "carry out the necessary work for a new electoral process and national democratic reconciliation in Honduras".

The full basis for this position is contained in the OAS mission's report to the Secretary General. It rehearses all the weaknesses in the electoral process. It calls allowing a run for re-election based on a court finding (without implementing legislation in place) a "bad practice...that revived the polarization generated by the coup and political crisis of 2009".

The OAS report also provides a new statistical analysis by Professor Irfan Nooruddin of Georgetown University addressing whether the sharp change in voting patterns noted after a break in counting could be explained in any innocent way.

This retraces some of the terrain covered by an analysis in The Economist that concluded that the shifts in voting seen were very unlikely.

Professor Nooruddin uses additional techniques, and concludes "on the basis of this analysis, I would reject the proposition that the National Party won the election
legitimately."

We will revisit these statistical analyses tomorrow, explaining what they do (and do not) show, and relate those observations to some of the known problems in the conduct of Honduran elections in general, and this one in particular.

For now, though, the question is: will Juan Orlando Hernández accept the OAS recommendation? Or does he think he can ignore the massive resistance to his re-election that has already led to almost two dozen deaths of protesters, and the closure of roads across the country?

The New Supreme Court

In the end, the intransigence and bribes paid by the National Party succeeded in getting their slate of candidates for the Honduran Supreme Court elected, but it took six votes, and the rebellion of 3 Partido Anti-Corrupción women who ignored the party line.  On the fifth vote, February 10, congress elected 3 more magistrates to join the 8 already elected, and on February 11, the sixth vote, they elected the remaining 4 candidates.  The court, as it stands, will consist of 10 men and 5 women, 8 National Party members and 7 Liberal Party members, with the National Party holding the Chief Justice position.

Thee PAC Congress Members voted with the National Party on the Sixth round of voting:  Marlene Alvarenga, Kritza Perez, Ana Josefina Fortin.

Friday morning, Feb. 12, the Chief Justice, Rolando Argueta, issued a memo appointing each of them to one of the four branches of the court for the next seven years, as follows:

Rolando Argueta - Chief Justice

Sala Constitucional:
Lidia Alvarez, Jorge Zelaya,  Edwin Ortez, Reyna Hércules, Jorge Serrano

Sala Penal:
José Rogdríguez, Rafel Bustillo, Alma Guzman

Sala Civil:
Reynaldo Hernández, Wilfredo Méndez, Rina Alvarado

Sala Laboral:
Edgardo Cáceres, Miguel Pineda, Maria Castro

Update Feb. 14:

Third Round of Voting for Supreme Court Underway

Something historic is going on in the Honduran Congress.  Today they are trying for the third time to elect the remaining seven justices of the Supreme Court.  The first round of voting yielded eight elected justices, five affiliated with the Liberal Party, one without party affiliation, and two affiliated with the National Party.  Mauricio Oliva tried to convene Congress the next day to elect the other seven justices, but failed because PAC and Libre declined to participate in the election, so no candidate could get 86 votes.

Over the weekend, all of the parties met to try and reach some kind of accommodation, but both the National and Liberal Parties are sticking with a partitioning of court membership allocated to only those two parties, where party affiliation is more important that the candidate's qualifications or independence.  This is the status quo.  This is how these two parties have conducted the Supreme Court appointments since 1982 when the Honduran constitution was enacted.  However, at least as of last Friday both PAC and Libre were rejecting the party quota system being argued by the two older parties.  Officially as of this morning there was no acknowledged agreement, though the Honduran press reported that PAC was considering a partitioning of the Supreme Court that included candidates they could support.  There are no PAC or Libre candidates in the pool of 37 from which the selection must be made, because the Nominating committee eliminated them and divided the slate of nominations between the National and Liberal party affiliated candidates.

In the voting today, Libre issued a communique in which it rejected the negotiations for the partitioning of the Supreme Court by party, and instead proposed a series of referenda and plebiscites, as well as approval of a suite of laws.  If Libre is able to maintain party discipline, its Congressional bench will cast no votes today.

Unlike Libre which officially adopted the position of not voting for any of the candidates, PAC had identified a slate of 16 candidates it considered qualified, of which one was elected in the first round of voting.  National Party operatives felt there was still a possibility of an agreement with PAC over a partitioning of the remaining justices, but officially, PAC said nothing publicly.

The voting is underway as I write this.

Electing a Supreme Court, Badly.

The Honduran Congress is responsible for electing a new Supreme Court every 7 years under the Honduran Constitution.  Yesterday the National and Liberal parties tried to carry on as they have for the last 34 years, nominating a suite of 8 National Party members, and 7 Liberal Party members.  Mauricio Oliva, the president of Congress and a National Party member, then forced the procedure of voting on the entire slate, rather than approving each justice individually.  He was certain he had the votes because of the alliance between the crumbling Liberal Party and the ruling National Party.  He needed 86 votes.  He got 82 (or 84 depending on which Honduran newspaper you read).  Congress failed to appoint a new Supreme Court.

But that's only the tip of the iceberg of corruption around the election of this Supreme Court in Honduras. Lets turn to the candidates themselves.  Last October,  American Bar Association joined the Centro por la Justica y el Derecho Internacional (CEJIL), the Fundacion para el Debido Proceso (DPLF), and Impunity Watch to form an international oversight committee reviewing the election of justices in Honduras.  They met with the nominating committee and held workshops for them on international standards and best practices for selecting justices.  It mostly seems to have been in vain.

The master slate of some 200 candidates was formed by the Nominating committee in a procedure that privileged some institutions, such as the business community, labor unions, and civil society, with making their own nominations.  Others candidates self-nominated.  The list of 200 candidates filled out questionaires, underwent drug testing, answered questions about affiliation or participation in drug trafficking with a polygraph.  Each candidate received a numerical score, and all of this information was supposedly used to winnow the list down to the 45 "best" candidates, if by "best" you include 12 who failed the polygraph test, and some whose legal qualifications are suspect.  During the process, the US Embassy in Tegucigalpa twice submitted lists of candidates that it said required more investigation or that should be eliminated outright, supposedly based on an FBI evaluation of candidates. 

In the end, the Nominating committee submitted a list of 45 candidates to the Honduran Congress, including candidates that failed the polygraph portion of the test, and those that had numeric scores less than 50%.  These are the ones the Nominating Committee said were the "best" candidates, but they refused to make public the selection criteria. 

On January 21, the Human Rights Center of the ABA issued a 9 page report on the work of the Nominating committee, saying that it failed to meet international standards for transparency and follow the best practices for the selection of justices.  So much for those workshops in October.  The ABA said the Nominating committee had made an effort, but had not gone far enough to investigate the candidates, and that the whole process lacked transparency.  They pointed out that the "election" of the Nominating committee itself was problematic.  They made a long list of suggested improvements to the process. 

Once Congress had the list, Mauricio Oliva appointed a review committee of 10 Congress people to review the nominations and recommend a slate of candidates.  The committee was composed of members of the 5 political parties which have Congresspeople, with a majority of the positions going to the National and Liberal parties and the supporting Christian Democrats.  All committee members were selected by Oliva, not their parties.

Monday started badly for transparency when Congress blocked most of the press corp in Honduras from entering to cover the election of the Supreme Court. Blocked press included Padre Melo of Radio Progreso.

The vote failed because Oliva did nothing to court the opposition party members into supporting the slate of hand picked candidates.  He did get 9 votes from opposition party members, but clearly expected more.  After the vote, Salvador Nasralla said that only 5 of the 15 candidates were qualified in his opinion.  PAC, Libre, and PINU have together called for an open, public vote for the Supreme Court candidates, but Mauricio Oliva has instead imposed a secret vote, using paper ballots rather than the electronic voting system in Congress.  Its far easier to manipulate the results of paper ballots, as both the Liberal and National parties have done in the general elections for the last 34 years.

Congress meets again at 4 pm to reportedly reconsider electing the same slate of 15 candidates again, only this time with a secret vote instead of a public one, using paper ballots instead of the electronic voting system installed in Congress.

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.

Hernández Packed Court Goes Political

The Honduran Supreme Court, or more properly, the Constitutional Branch of the Supreme Court, packed with National Party supporters while Juan Orlando Hernández was head of Congress, paid a dividend yesterday by issuing a blatantly political opinion, with no legal argument to back it up.

The case has its origins in the November, 2013 elections for Mayor of San Luis, Comayagua.  Leny Flores Suazo of the Liberal Party was running against Santos Iván Zelaya Chacón of the National Party. 

Both candidates declared themselves the winner, forcing the Tribunal Supremo Electoral (TSE) to recount the votes.  But recount in Honduras does not mean what you think it means.  A "recount" in Honduras entails just re-tallying the votes already recording on the tally sheets, not recounting each vote.  The Tribunal Supremo Electoral has maintained that this is the only recount mechanism allowed under its regulations. 

After the recount, the TSE declared the election a tie. 

The candidates then both voluntarily agreed to flip a coin, and whoever won the toss would assume office.  This procedure is called for under Honduran law, if both candidates voluntarily agree to it.  Leny Flores Suazo won the coin toss, and the TSE formally declared him the winner of the election.  He was given paperwork by the TSE naming him the winner.  He was sworn in to office on January 27, 2014.

More than a month later, the National Party candidate appealed to the TSE to declare the election null and void and call for a new election. 

After the TSE turned him down, he appealed to the Supreme Court alleging there was no transparency in the recount process. We tend to sympathize with Zelaya Chacón, because the "recount" is actually pointless, unless you believe a simple math error, rather than the original vote counting, is the problem. But it isn't particularly impenetrable: the TSE adds the numbers a second time.

The Constitutional Branch accepted the case, and following usual procedure solicited an opinion from the Public Prosecutor, Oscar Chinchilla. He is a former Supreme Court justice himself, and the only justice that Hernández kept in the Constitutional Branch when he replaced the other four. 

Despite these ties, Oscar Chinchilla actually concurred with the TSE, arguing that what it did was correct and in accordance with the Electoral Law and the Law of Political Parties, which called for the the coin toss in the case of a tie if both parties agreed to it. There is no dispute of their agreement to abide by the results of the coin toss.

The Constitutional Branch, however, unanimously rejected the Public Prosecutor's opinion and found against the TSE. 

They ruled that the TSE violated the transparency requirements by not immediately consulting the original ballots themselves, rather than the tally sheets, and this failure violated Zelaya Chacón's rights to due process even before the coin toss happened. 

They reportedly wrote, in part:

It is clear to this Constitutional Chamber that the Supreme Electoral Tribunal has violated the political rights of the complainant, adopting resolutions lacking sufficient motivation, lacking the accuracy of the procedure.

But this is where the train left the tracks.  Rather than order the TSE to reconsult the ballots, or to hold a new election for mayor if the original ballots were no longer available (which is likely), they wrote:

Because of all the reasons previously cited, the appeal placed by Mr. Eneas Portillo Cabrera for Mr. Santos Iván Zelaya Chacón, should be granted with the effect that it restores to him full possession and exercise of his political rights, in such a manner that he can exercise for the rest of the time allowed, the job of Mayor of the town of San Luis, department of Comayagua.

The court simply declared Zelaya Chacón the winner, with no constitutional or legal basis provided for such a ruling, and awarded him the election.

Flores Suazo is reported to have said:

So far, it looks like in Honduras, the Supreme Court imposes Mayors [on towns] and sets aside the resolutions of the Election Tribunal.

This is exactly what happened.  Neither every one's due process rights nor the people's votes to determine the outcome of the election were preserved by this ruling.  Why even bother to hold elections?

But that's not the end of this story.  Flores Suazo called on Mauricio Villeda, his party's head of its Congressional delegation.  He has received the unanimous support of the Liberal Party congressional delegation.  Villeda told the press:

The Liberal party was surprised and is angry by the legal decision handed down by the Constitutional Branch of the Supreme Court concerning the case of the Mayor of San Luis.  This election was a tie and was decided by a coin toss.  Afterwards the Constitutional Branch got involved; listen well to what I am saying:  concerning election law, where the highest authority is the Supreme Election Tribunal.   This has surprised us and we don't want a precedent like this to exist in Honduras.

When asked who might have pressured the court, Villeda said:

Possibly various people from the National Party because they have replaced a Liberal Party Mayor.  Sufficient corruption exists already in this National Party government for there to also be corruption in election business.  We must make it clean and only the social communications media can help...

Villeda went on to indicate that this will become an issue in the alliance in Congress between the National and Liberal parties, saying that what the Liberals enabled in Congress, they can just as easily make impossible by breaking the alliance.

The Liberal Party has indicated that once they have had time to study this decision, they will appeal it to the full Supreme Court, but in the meantime, that court has imposed a mayor who was not elected on San Luis, Comayagua, for political, not legal, reasons.

Post-Election Analysis from Honduran Experts

Radio Progreso, a project of the Jesuit organization ERIC (the Equipo de Reflexión, Investigación, y Comunicación) located in El Progreso, Yoro, has a commentary on their website with insight from a number of Honduran commentators about where the post-election phase is headed. It starts:

Two weeks after the general elections, their results continue to be the object of critique for the suspicious way in which the count of votes in the local polling places developed and the filling out of the actas electorales (vote tallies).

 
Then it moves to a series of comments from Honduran perspectives. The most intriguing of these is the perspective of the new student movement, the so-called Camisas Negras or Movimiento anti JOH. This is the group whose protests in Tegucigalpa were met with immediate suppression by the military police in the days after the vote.

Radio Progreso quotes Marcos Rubí, a member of this movement, on its origins and aims:

"it grew in the heat of what pretended to be an electoral fiesta, with university students that from before the beginning of the process already had seen certain anomalies, certain signs of fraud, and then in the electoral process of Sunday the 24th, now that the fraud was confirmed, indignation grew and we decided to organize ourselves... The Movement is heterogeneous, there are ideologies involved that run from the right to the extreme left, but there is a consensus that there was fraud and we all have the same purpose".

The disillusionment of students with the electoral process has been under-reported in the international press. University students took the place formerly occupied by representatives of the church in this election, as custodians for the individual election polling places. That means they were witnesses to the most egregious irregularities: the selling of party credentials, voter intimidation and mis-information-- irregularities international observers dismissed as minor, but that these Honduran youths (in our view, rightly) saw as shocking and unacceptable.

Honduran sociologist Eugenio Sosa criticizes the Tribunal Supremo Electoral, and was blunt about the possible impact of challenges to the TSE:  "I believe that the results will stand, the Tribunal has announced them and it isn't going to reverse itself even though they will make a pretense of reviewing the actas":

"I believe that the Tribunal, despite having launched itself affirming that these were the most transparent elections and despite having all the backing of official organizations such as the OAS, EU, the US Embassy and Department of State, little by little has been showing aspects that demonstrate that in these elections there were as many problems, irregularities, and alteration of results as in the primaries."

Hermilo Soto, national coordinator in Honduras for the Lutheran World Federarion, characterizes reforming the electoral system as a "great challenge" for Honduras going forward, because "the great problem that we have today is that the people do not trust in the present institutionality directing the electoral process".

The article notes that Congress will play a key role in determining whether and how the electoral system might be revised, as well as having a key role to play in the subsequent elections of the Supreme Court and Ministerio Público.

As we have noted previously, no single party has a large enough delegation to congress to control these processes. Radio Progreso quotes the opinion of Antonio Rivera Callejas, a re-elected Partido Nacional congress member, about what may happen:

"It's too early to talk about the composition of the junta directiva (executive committee), that is going to be defined in January, I figure, you should remember that there will be many political factions making up the congress, there will not be a simple ajority for any of the political parties, this is going to require the consensus of many... What there is not yet are concrete names, of candidates for the presidency, vicepresidency, and secretariat [of the congress], so it is normal that there are conversations among all the political parties but that will take a concrete form only in the month of January".

Sociologist Armando Orellana is skeptical of the vision of harmonious consensus advanced by Rivera, and raises instead warnings of backroom deals and corruption as usual in the negotiation of a congressional majority:

"The party of the government [Partido Nacional] is buying consciences, there has been talk of payments of up to five million lempiras [about $240,000] to procrue the presidency of the Congreso Nacional. The ally that it has had during this period [the Lobo Sosa administration] has been the Partido Liberal, nevertheless they are not going to succeed in controlling the two-thirds majority necessary to manage constitutional reforms"

This is a critical point: many of the more alarming legislative initiatives under the Hernández Congress required constitutional amendments, which sailed through with unprecedented ease due to the alliance between the two dominant parties.

Radio Progreso cites Orellana's observation that LIBRE and PAC could, along with smaller parties (such as PINU and UD) form a large enough block that, with a few Partido Liberal congress members acting more independently they could push congress in a different direction.

While Antonio Rivera dismisses this, his argument for a more centralized authority in Congress-- which is that the hegemony and harmony under Juan Orlando Hernández was critical to the legislation that the current congress passed-- actually cuts both ways: for those who question the wisdom of such rapid, unreflective passage of major changes to the legal and economic framework of Honduras, slowing down the process may be the best outcome of this election.

And Radio Progreso's coverage suggests that the incoming Congress will operate not only with internal dissent, but with the scrutiny of a newly mobilized younger generation of Hondurans whose outrage about the way the election was conducted is unlikely to be settled simply because the international community declares that this election was good enough, if not really as good as it could have been.