Honduras Allegedly Bugs Telephones of Supreme Court Justices?

The Honduran Public Prosecutor's office is alleged to have tapped the telephones of its Supreme Court Justices in an apparent violation of its own laws.  So said one of the defense lawyers of Teodoro Bonilla in court yesterday.

Teodoro Bonilla is the Vice President of the Judicial Counsel, the group which oversees the performance of Judges in Honduras.  He is accused of getting two different judges to change guilty rulings against two of his relatives for money laundering and having illegal weapons among other charges.

Yesterday in court, the Public Prosecutor's office made a motion for Justice Victor Manual Lozano Urbina to recuse himself from hearing the case because of his manifest friendship with the accused, Bonilla.  They introduced as supporting evidence of that friendship a recording of a phone call, from a tapped telephone, between Justice Lozano and Bonilla.

Justice Lozano, in all fairness, had attempted to recuse himself from the case precisely because of his friendship with Bonilla at the beginning of October, but the Justices of the Supreme Court denied his motion to recuse himself and ordered him to hear the case.

The Defense argued:

"They have a phone intercept on the communications of Justice Victor Manuel Lozano.  We assume that they have intercepts on the telephones of all of the Justices of the Supreme Court, for which the defense alleges that this is an illegal piece of evidence that violates the Constitution of the Republic, treaties and human rights agreements of which Honduras is a part."

Never-the-less the defense argued that Justice Lozano should hear the case.

We have to remember that it was the defendant's lawyer who concluded that it was Justice Lozano's phone, and not Bonilla's phone that was tapped.  Other statements, including by another defense lawyer, suggest it was Bonilla's phone that was tapped.  Furthermore, they argue that the date of the phone call is from prior to the opening of an investigation of Bonilla and therefore was illegally obtained and used.

Honduran law is clear on the collection and use of wiretaps.  To legally listen in on phone calls in Honduras requires an active investigation against the person by the Public Prosecutor's office, and a judge's signed order authorizing the wiretap.

To get a wiretap warrant, the Prosecutor's Office must present to the Judge in writing, the full name of the person(s) whose communications are to be tapped, a description of the illegal activities that warrant the wiretap, the legal code being violated, what communications are to be intercepted (eg, phone carries, IMEI number of phone, etc), the duration of the tap, the name and title of the person requesting the wiretap, and most importantly, the number of the open investigation.  Wiretaps are related to a particular investigation and may not be used in another case.

To use wiretap information in a legal case in Honduras, the Public Prosecutor must request judicial approval to use the wiretap data.  It does not appear that the Public Prosecutor did so in this case.  Instead he introduced wiretap information in a pre-trial motion.

The law says a wiretap may not be used in any other case other than the specific investigation that made it necessary.  This becomes relevant because the defense has argued that it dates from before the investigation of Bonilla began and therefore is not legally admissible. 

Bonilla's lawyer has requested the judicial order authorizing the phone tap on Bonilla in order to make it public.

Justice Lozano admitted the prosecutor's motion to recuse himself and denied the motion by the defense to remain on the case.  The motion to recuse now goes to the named appeals court, consisting of 3 other Supreme Court Justices:  Silvia Santos, German Garcia, and Elmer Lizardo.

Re-Election a Done Deal

Former Presidents may now seek re-election in Honduras.

That is the effect of the Constitutional Branch decision having been published at 5 pm on Friday in La Gaceta, the official publication of the Honduran government.

How the publication of this decision happened is informative: someone fast-tracked the process.

As we previously noted, last Wednesday afternoon the Constitutional Branch debated and passed a resolution unanimously declaring that the portions of the Honduran constitution and penal code that prohibit re-election of Presidents were unconstitutional. All 5 justices signed that decision, which was then leaked to the press by someone employed by the court, an "official" leak. 

Overnight between Wednesday and Thursday the political clamor on both sides of the issue was intense.

Officially, only the National Party is in support of the decision, and it was a National Party ex-president and National Party Congressmen that had challenged the constitutional provision.

This fact becomes important when you realize that the Supreme Court, as constituted, was also selected while the National Party controlled the government, and that the Constitutional Branch contains current president Juan Orlando Hernández's hand picked candidates.  While president of Congress and campaigning for President, Hernández carried out a political purge of dubious legality, removing four of the five justices in the Constitutional Branch, replacing them with his own choices.  He has since replaced that fifth justice, promoting him to the position of Public Prosecutor.

The three other major parties-- the Liberal Party, Libre, and PAC-- have all come out against re-election.  After all, the post-hoc justification offered for the 2009 coup was that somehow through the opinion survey of the Cuarta Urna, Manuel Zelaya Rosales would be able to be re-elected.

Since joining Congress as a Libre Party member, Zelaya Rosales himself has come out against presidential re-election, as has the leader of PAC, Salvador Nasralla.

Thursday morning at 8 am, Justice Lizardo of the Constitutional Branch tried to rescind his signature on the decision.  Such an act, if upheld, would have made the decision not unanimous and would have forced the entire 15 justices of the court to hear the case and issue an opinion.  Lizardo based his recanting on the precarious legal theory that because the Constitutional Branch had not notified the legal representatives of the parties of a decision, he had room to act. This was where matters stood when we last blogged about this.

However, the Secretary of the Constitutional Branch chose to ignore Lizardo's letter notifying him of the change, and went ahead to disseminate the decision to the legal parties.

He also forwarded the decision to the Secretary of Congress, who then quickly forwarded it to ENAG, the government division that prints La Gaceta. Publishing congressional and executive decrees in La Gaceta is what puts them into effect.

The Honduran Congress and Supreme Court have a long-standing dispute about when judicial decisions are effective, with those opposed to some Supreme Court decisions refusing to publish them, to try to ignore them. The Honduran Congress has historically tried to assert control over the constitutional effects of Supreme Court decisions, normally reviews and can even publicly discuss decisions before deciding to forward them to ENAG for publication. No such review was allowed to happen this time, a decision taken by the National Party leaders of Congress.

Everyone agrees that once a judicial decision is published in La Gaceta it is in effect. Normally the publication process takes weeks. ENAG normally publishes things in the order they are received, and it usually has a large backlog of things to publish, so that bills can take a month or more to be published.

Yesterday at 5 pm this decision was officially published in La Gaceta. Someone clearly rushed this one into print.

The upshot: on Thursday Rafael Callejas, who brought the case, convened his campaign to regain the Presidency which he held as a National Party member from 1990 to 1994.

Falsified Supreme Court Decision

On November 25th the Constitutional branch of the Honduran Supreme Court emitted a ruling finding the government responsible for defaulting on a payment to a Honduran pharmaceutical company, and ordering it to pay immediately 126 million lempiras.

Or did they?

On December 3 of this year, the Honduran press covered the release of a Constitutional Branch of the Supreme Court legal decision, upholding a lower court ruling that the government of Honduras owed Farmasula S.A. de C.V. 126 million lempiras (about $6 million) based on the government defaulting on a payment of about 61.5 million lempiras (about $2.9 million)  to the company.

The order was "signed" by Justices Silvia Trinidad Santos Moncada (president of the Constitutional branch of the Supreme Court), Jose Elmer Lizardo Carranza, Jorge Alberto Rivera Aviles, Tomas Arita Valle, Reina Sagrario Solarzano Juarez, and Lidia Estela Cardona Padilla.

Now, there are several problems with this order.  First, it supposedly has six signatures of justices, but each branch of the Honduran Supreme Court consists of five justices, not six.  Where did that sixth justice come from?

Second, there are the names of several justices there that don't ordinarily belong on a Constitutional branch opinion.  I refer of course to justices Alberto Rivera Aviles, Tomas Arita Valle, and Reina Sagrario Solarzano Juarez.  They are not listed as members of the Constitutional branch, and so could come to sign an opinion there only if some of the assigned justices were absent.

This turns out to be the case.  Three of the justices assigned to the case, Lidia Estela Cardona Padilla, German Padilla, and Victor Lozano, were out of the country the day the case was supposedly decided, attending a judicial seminar.

By being out the country with her colleagues at a judicial seminar, Lidia Estela Cardona Padilla could not have participated in any debate or signed the decision on November 25th.  She flat out denies that her legitimate signature appears on the document.

The accuracy of the order is supposedly guaranteed by the signature and seal of Carlos Alberto Almendarez Calix, secretary of the Constitutional branch.  Did he goof and add her name to the list of signatories?

But more importantly, why was this case, which had been tabled for further study and not scheduled to be decided, suddenly brought up and replacement justices assigned while the three normal members of the Constitutional branch were out of the country attending a legal seminar? 

Someone needs to ask Justice Silvia Santos Moncada that question.

Congress Votes to Dismiss Four Justices

At 4 am this morning the Honduran Congress voted to dismiss four justices of the Constitutional Branch of the Supreme Court, finding "administrative cause" for them to be dismissed.  

The cause?

The report of the congressional commission indicated that the decision of the Sala Constitucional of the Supreme Court that the law to cleanse the police was unconstitutional was "not in line with the the security plans of the Executive and Legislative Branches".

Thus does the principle of separation of powers suffer its next blow. If anyone is unaware of the imbalance in Honduran governance, where the Congress already claimed unconstitutional power to replace the president and now has claimed such power over the legislative branch, this should be the wake-up call.

In a floor speech congress member Jeffrey Flores called the actions of the four justices "negligent" and called their dismissal "patriotic".

As if that was not illegal enough,  Congress named German Vicente García, Silvia Trinidad Santos, Victor Lozano, and Elmer Lizardo as replacement justices and swore three of them in. Congress plans to swear the fourth in next Monday when he returns from his ranch in Olancho.

Supreme Court judges in Honduras are selected by Congress from a list of candidates put together by a nominating committee constructed to represent all sectors of society (in theory).

The four people named as replacement judges were reportedly on the initial list of 45 candidates proposed by the last nominating committee.

There is no reported reaction from the Supreme Court or the Executive Branch so far.  Ramón Custodio, the Human Rights Commissioner for Honduras, said

It is sad that the National Congress legislated this morning to break the constitutional order in the country.