Heads May Roll....

Juan Orlando Hernandez aspires to be president, and things he controls are changing in Honduras.

With Porfirio Lobo Sosa's help, he has re-instated the "voluntary" contribution every government employee makes to the ruling political party.  Both parties have been accustomed to collecting "voluntary" payments from government employees, with people who decline being marginalized in their positions. What is new here is that a specific level of "contributions" has been set up, to be deducted directly from the workers' salaries and deposited directly into bank accounts controlled by the National Party. In theory an employee could not agree, but what government employee is going to risk that?

Hernandez isn't limiting himself to political jostling for the benefit of his party. Under his leadership, the Congress has been asserting more power over the other branches of government. He now says he will put the judicial branch, the public prosecutor's office, and the police in order by "supporting the good judge, the good prosecutor, the good policeman."

We've written about Congress and the not-so-Supreme Court before. Analyst Raul Pineda Alvarado told the press this morning "now they have a Supreme Court in tune with their plans, and intimidated."  Pineda Alvarado went on to remark on the amount of power now centralized in Hernandez and Lobo Sosa, noting that they will remove anyone who gets in their way.

Hernandez' current target is the executive branch.  He has been holding hearings in Congress where each cabinet-level official has come to give a report on their progress towards providing a secure life for Hondurans.  According to Hernandez, only General Julian Pacheco has performed well.  Pacheco is head of the intelligence service, and is widely rumored to be using the position to listen in on the phone calls of politicians. Not the person you want lined up against you if you are an ambitious Honduran politician.

Hernandez is reportedly going to demand replacement of Eduardo Villanueva, head of the Dirección de Investigación y Evaluación de la Carrera Policial (DIECP). The DIECP was created to manage the police cleanup process. Villanueva volunteered for the post after the original director quit in disgust from waiting for Congress to allocate a budget for the unit.  Instead of managing the police cleanup, Villanueva gave control of the process to the Police command, the very group that should have been the first to undergo the confidence tests.  Of the over 200 police who have failed the confidence exams, several have since been promoted, and only seven have been dismissed by Security Minister Pompeyo Bonilla.

Hernandez has also put in motion mechanisms to remove the Public Prosecutor Luis Rubí and several other top prosecutors.  After Rubí's Congressional testimony last week it was privately suggested Rubí resign. He chose not to, so now Congress is getting ready to formulate a "political trial" using the recently adopted law that gives Congress the power to review, and fire, without the right of appeal, any top government official, including the president, for anything Congress decides is negligent or incompetent or if there is an accusation of a serious crime or the person has worked against the constitution or national interest (Article 5 of the Ley de Juicio Politico).

Lobo Sosa has recently taken pot shots at Ramon Custodio, the Honduran Human Rights Ombudsman, calling him dishonored and unable to serve in international bodies.  Jimmy Dacaret of the right-wing UCD fears that Custodio is one of the people targeted by Lobo Sosa.  Dacaret supports Custodio because of Custodio's unwavering support of the pro-coup forces in Honduras.

German Leitzelar, a PINU party Congressman, is of the opinion that "no heads should roll because all of them would have to roll".  The failure he says, is one of not having a state security policy, and replacing a director here and there will not solve this.

Edmundo Orellana, a Liberal Party member, has said that what Hernandez desires is to place people loyal to him into positions of power. This is an opinion shared by Raul Pineda Alvarado, who said that Hernandez and Lobo Sosa are playing a political game.  Jimmy Dacaret, of the right wing UCD agrees that Lobo Sosa and Hernandez are playing political games in concentrating power in themselves.

This is the new face of the National Party, the candidate for next president of Honduras. Not a pretty picture.

Ducktatorship in Honduras

I believe that we are on the brink of an imminent dictatorship which will be led by the current president of the National Congress.

So says Edmundo Orellana, a lawyer and former Public Prosecutor for Honduras, about Juan Orlando Hernandez's subjugation of the Supreme Court in Honduras.

This story was the part of the front page of the web edition and print edition before El Heraldo removed all links to it from their front web page.

What I see is that the next person to occupy the presidency will be a reincarnation of General Tiburcio Cárias Andino.

Cárias Andino was the longest ruling of Honduras's 20th century dictators, from 1932-1949.

German Leitzelar, a Congressman from the PINU party, agreed with Orellana, and said that Juan Orlando Hernandez has the agenda of being elected president then staying in power for more than the term of four years.

Leitzelar asserted that now that he's subjugated the Supreme Court to the Legislative branch,

All that needs to happen for what Edmundo Orellana said is to reform the article that prohibits re-election [of the president] and if you have succeeded in arranging it properly, you have arranged for a constitutional dictatorship.

According to both Leitzelar and Orellana,  Juan Orlando Hernandez is sure to win the 2013 presidential election because he has all the mechanisms of power behind him.

This is an oblique reference to the blatant fraud in reported vote counts from the ballot boxes in the primary election, where 26 percent of the ballot boxes failed an international audit, and where a post-election audit by the International Institute for Democracy showed Juan Orlando Hernandez with 7% fewer votes in the primary for the National Party than the official total. That would have been enough to make Ricardo Alvarez, Mayor of Tegucigalpa, the winner of the National Party's nomination for president.

Leitzelar said that Juan Orlando Hernandez has the political goal of becoming the leader of the country and is attempting to remove all the obstacles that present themselves to attain that goal.

Among the obstacles was the appeal Ricardo Alvarez brought before the Supreme Court the day before Congress voted to remove four Supreme Court justices.

Alvarez is asking that the Supreme Court order the Election Court to actually count all the votes from the primary election.

But it is not just Juan Orlando Hernandez who delivered this blow to democracy in Honduras; it is Porfirio Lobo Sosa too, who supports the action, even if he didn't actually put Juan Orlando Hernandez up to it.

Lobo Sosa showed his complete disdain for an independent court, as called for in the Honduran constitution, when he told journalists in a Christmas lunch yesterday:

If there is a law there [in review by the court], before issuing an opinion they should at least consult with those who wrote the law, or those who approved the law; I think [what happened to the Supreme Court justices] is totally just because the powers are independent, but complementary.

Lobo Sosa went on to add:

We should understand that here no one is above the people, the first power of the State is the Legislative branch because it is the one elected.

The Honduran Constitution, Article 4, actually specifies that there are three independent and equal  powers, not that the Legislative branch is above the other two.

The PINU party released a statement Saturday that read in part:

These decisions [of the Congress] are characteristic of dictatorial governments that seek control of the democratic institutions through intimidation and abuse of power.

Or as German Leitzelar put it:

When we have an animal that quacks like a duck, has feet like a duck and feathers like a duck, then its a duck

Congress To Censure Supreme Court

Late yesterday evening the Honduran Congress approved a bill that authorizes them to "investigate" the conduct of the four justices of the Constitutional Branch of the Supreme Court that ruled that the Law for the Purification of the Police was unconstitutional.  The motion was presented by National Party Congressman Rodolfo Zelaya, a member of president of Congress, Juan Orlando Hernandez.  Zelaya wrote:

"[I] formally present a motion to appoint a special commission to investigate the effect of the administrative conduct of the judges of the Supreme Court, particularly the Constitutional Branch on all matters relating to its administrative behavior in the area of public safety, complementing the efforts that Congress has done on the Constitution, issuing special laws to give greater security to the citizens.  It should present a detailed report to the plenary [of Congress] and other legal effects."

Zelaya cites Article 205, paragraph 20 as authorizing the investigation.  Article 205 lists the functions of Congress.  Paragraph 20 grants it the power to approve or disapprove of the administrative action of the Executive and Judicial Branches of government.  Notably lacking is the power to investigate the actions of either of the other two branches as they act within their purview, which is what this motion calls for.  Even paragraph 21, which authorizes Congress to appoint commissions to investigate matters of national interest does not contemplate investigating the other branches of government.

Not all of Congress liked the motion.  The head of the Liberal Party, José Alfredo Saavedra said:

This is a bad message both to the nation and internationally, where Congress wants one branch of government to submit to others; this flagrantly violates what is set in the Constitution of the Republic and specifically with the independence of powers.....This is flagrant intimidation against another branch of the government called the Judicial Branch.

German Leitzelar bluntly told Congress that his party, PINU, would not support the law because it was transparently about investigation the court's judicial conduct, not its administrative conduct, and that was improper.
Another Liberal Party Congressman, Wenceslao Lara, recommended that instead of passing the motion, Congress appoint itself better lawyers so that they don't approve such poor quality laws.

Roy Urtecho, attached to the Public Prosecutor's office said that the Congressmen that approved the motion were in danger of commiting the crimes of treason, abuse of authority, and interfering with the operation of a government official.

The [Constitutional] Branch is the final and definitive interpreter of the of the Constitution, and it is the branch which exclusively determines unconstitutionality....In consequence, you should understand that whatever pronouncement, indication, or objection the other branches of government have, on these juridical positions, interference in the exercise of the powers given by the Constitution breaks the constitutional principle of separation of powers."

To approve the review of the conduct of the Judicial branch with respect to things that have nothing to do with the conduct or administrative function [of the Judicial branch] implies opening the door to a kind of political judgement...which is not contemplated in the actual Constitution.

Urtecho goes on to say that such conduct puts Congress at the edge of illegality.

Congress voted 63 - 2 with two abstentions to approve the motion, only half of Congress having been present.  Congress then named a 9 person commission, consisting of 4 National Party members, 2 Liberal Party Members, 1 Christian Democrat, 1 PINU Party member.  German Leitzelar, who was appointed as the PINU party representative, said that 5 of the commission members are supporters of Juan Orlando Hernandez, the National Party presidential candidate for the 2013 elections.  Leitzelar said that he would not be part of the Congressional commission.

The commission will return a motion of censure today.

Wiretapping

Despite rampant police corruption in Honduras, for which Porfirio Lobo Sosa just approved a law to give the Armed Forces policing powers, now Juan Orlando Hernandez wants to give the police permission to wiretap.

Not only does he want a law to let them wiretap, but he wants it now.

Hernandez says they're wiretapping anyway, so the government might as well give them a legal way of doing it.

In other words, solve the illegality by making it nice and legal.

Some in Congress think this is a bad idea. PINU party member German Leitzelar said:

"It would be a delicate thing to put into the hands of agents in the judicial branch infiltrated by organized crime a weapon so powerful as wiretapping."

Analysts pointed out that such laws have failed in other Central American countries, where they've been used for political blackmail more than they've been used against organized crime.

The Minister of Justice and Human Rights, Ana Pineda, has come out against this law as unconstitutional because it violates the right to privacy.

Even the Commissioner of Human Rights, Ramon Custodio, who sees crime as the most serious human rights issue in Honduras, has come out against the proposed new law.

Still, Hernandez intends to fast-track it.

There already is a law in Honduras that governs wiretapping. Article 223 of the Codigo Procesal Penal spells out the conditions that must be fulfilled to authorize the interception of communications. It reads, in full:

A Judge, at the petition of the Public Prosecutor or other lawyer in his office, may order via a well founded resolution, the recording of the telephone, computer, or other kinds of analogous signals made by the accused or any other person directly or indirectly related to the crime being investigated.

The Judge should weigh in his resolution the gravity of the crime being investigated, the utility and proportionality of the measure.

The intervention in communications treated in this Article might be the identification and recording of the origin, the destination, or both or in the knowing and recording of the content.

In the act which authorizes the intervention, the Judge shall determine who carries out the intervention.

The intervention may not last more than 15 days, but may be extended by the Judge, at the request of the Public Prosecutor or lawyer in his office, for additional 15 day periods, by founded acts, as long as the conditions which initially justified the adoption of the measure remain true.

The recordings, once made, will be given only to the Judge who ordered them, within five days of the termination of the intervention, and every one of the successive extensions. In the case of extensions, the recordings will be turned over to the Judge within sufficient time for the Judge to consider them before reaching a conclusion about extension. Only the Judge may know the contents of the recordings. If they are related to the crime under investigation, the Judge may order transcripts prepared so they can be used in the legal process.

The people charged with making the recordings or the transcriptions must keep secret the contents of the recordings and if they leak the information, will incur legal responsibility.

The recording of a communication by one of the parties without fulfilling the requirements outlined in this Article will lack all probative value.

Juan Orlando Hernandez argues that, because this Article lacks specific procedures for how the recording will be made, his new law is necessary.

In fact, the current law contains what Hernandez's law lacks: judicial protection of the Honduran populace's right to privacy under the constitution. Currently, no wiretapping intercepts can legally occur without a judge's review and approval. Hernandez's law would eliminate judicial review.

Mario Perez, the Congress member Hernandez commissioned to write the new law, says that it will create a Unit for Communications Interception which will both determine when intercepts are necessary and authorize them.

Let me emphasize that this leaves judges out of the loop. The new wiretapping Unit will both determine an intercept is necessary and carry it out, all without the review of a judge, according to Perez.

Mario Perez is getting into a pattern here. He was also part of the committee that wrote the unconstitutional interpretation of Article 274 of the constitution, twisting it to grant full policing powers to the military. Constitutional guarantees seems to mean little to him, other than being obstacles.

Meanwhile, the legislators are ignoring the objections of both the Minister of Justice and Human Rights, Ana Pineda, and the Commissioner of Human Rights, Ramon Custodio. As with the departed Sandra Ponce, events like these make it clear that human rights positions are simply there to satisfy international organizations: the Honduran legislature sees no need to pay attention when these individuals tell them they are acting unconstitutionally.

Military Policing

The Honduran constitution spells out the role of the military: what they can and cannot do.

Juan Orlando Hernandez, head of the Honduran Congress with presidential aspirations, wants to change that. He assigned a committee of legislators (Mario Pérez, Oswaldo Ramos Soto, German Leitzelar, José Alfredo Saavedra, Augusto Cruz Asensio y Marvin Ponce) to formulate an "interpretation" of the constitution that will use Article 274 of the constitution to grant policing power to the military.

There's a real problem with this.

Its unconstitutional.

When Congress wrote a constitutional modification that granted it the sole power to interpret the constitution, which is what is proposed here, the Honduran Supreme Court ruled that change unconstitutional. The decision said that the Supreme Court itself is the final authority on the interpretation of the constitution. In retaliation, for years Congress has delayed publication of that decision, but it nonetheless is law. Three Justices of the Supreme Court chose to speak out and remind Congress of the law on Tuesday.

Articles 272 and 274 of the Honduran constitution define the role of the military. Article 272 reads:

The Armed Forces of Honduras is a National Institution of permanent character, essentially professional, apolitical, obedient and non deliberative. It is constituted to defend the territorial integrity and the sovereignty of the Republic, to maintain the peace, the public order, and the dominion of the Constitution, the principles of free suffrage and the alternation in the exercise of the Presidency of the Republic.

To cooperate with the National Police in the conservation of public order to the effect of guaranteeing the free exercise of suffrage, the custody, transport, and vigilance of the electoral materials and all the other aspects of the security of that process, the President of the Republic shall place the Armed Forces at the disposition of the Supreme Electoral Tribunal, from one month before the elections, until the decision of the same.

Article 274 expands on other missions that the Armed Forces can have. These include education, agriculture, environmental protection, road building, health, and agricultural reform. Under this article, the military may cooperate with the institutions of public security (aka, the police).

All of these additional missions require a request from the appropriate Minister of state for the military to assume the role. In the case of cooperating with the police, they must be asked to do so by the Security Minister. They cannot act as police, only in conjunction with police.

In the United States we have a strong tradition, indeed a legal mandate, that says the military may not be used for civilian law enforcement except where expressly authorized by the Constitution or an act of Congress. In the debate over the ratification of the US Constitution, the Federalists argued that the military should not be used against the civilian population, ever. The legal foundations are embodied in the Posse Comitatus Act of 1878.

In 1985, in Bissonette v. Haig, the US 8th Circuit Court wrote:

Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights.

Honduras has no such tradition. Civilian rule of the military is an aspiration in Honduras, one that was emergent over the two decades before the 2009 coup. Certainly the changes introduced with the 1982 constitution were an attempt to subject a strong military to a weak civilian rule, but the 2009 coup has brought this power struggle back to the limelight.

A change like the law proposed by the Honduran Congress would be step backwards, reinforcing the erosion of civilian control over the military that was set in motion by the Honduran coup. It is one among many continuing impacts of a coup that has not really ended.

Military Mission Creep 2: Give Us Police Powers

General Rene Osorio, head of the Honduran Joint Chiefs of Staff of the Armed Forces, suggested today that he would like constitutional changes that would give the military some police powers, like the ability to stop and search anyone, the general ability to search property, the ability to legally carry out raids, and other unnamed police powers.

The granting of police powers to the military would require constitutional changes, to make these part of the mission of the Armed Forces. Osorio said:

"We're not putting ourselves in the place of police; we want to help and support them with our own troops and our intelligence work."

But that's exactly what Osorio is proposing, that the military mission be changed, added to, and that training be supplied to his troops so that they do things in a legal fashion, like arrest and hold people.

As Osorio said, all of this will require changes to the constitution, the laws, changes to the military charter, changes to international treaties, all because Porfirio Lobo Sosa wants a single point of contact to coordinate the actions of the Police and Military, "to make them more effective and successful against delinquency."

Lobo Sosa grew up in an era where the Police and Military were the same thing in Honduras. This proposal to return to those days does not appear to bother him in the slightest; but it bothers those concerned with human rights and democracy in Honduras from all sides of politics.

Thus we have statements from the Rector of the National University, Julietta Castellanos opposing any unification of police and military, and the Judges' association saying its illegal.

German Leitzelar, who presided over the original separation of the Police from the Military, thinks a single Ministry with authority over both is OK so long as there's no unification of their actual operations. In contrast, General Jorge Estrada, ex-judicial auditor for the military, said that

"We have to be clear that from the point of view of the functions and strategies, to join the police with the Armed Forces would be a step backwards, to resort to the past, and we all know how that turned out."

The problem is that the Armed Forces aren't Police; what police do is not part of the mission or training of the armed forces. Osorio asking for police powers for the Armed Forces is troubling given the military's history of human rights abuses, such as extrajudicial killings and the illegal detention of Honduran citizens.

To merge them in the midst of international condemnation of violence against Honduran citizens by security forces is, at the least tone-deaf, and just possibly, one of the more obvious signs of rejection of opinion in the international community.

Taxes-gate

A new omnibus tax law (decreto 17-2020) was published Monday in La Gaceta, the official organ whose publication makes laws legal. La Tribuna reports that on reading the published law, which they passed just before their Easter break, Congress was astonished to see changes in no fewer than nine articles. La Tribuna tells us that those most amazed were the committee that assembled the final version of the bill after all the changes and amendments were collated. The revision committee ("comisión de estilo") , consisting of German Leitzelar, Oswaldo Ramos Soto, and Rigoberto Chang Castillo, denies it made these changes in the version of the bill it sent to the President.

Earlier today, Secretary of Congress, Rigoberto Chang Castillo, said the only difference is in Article 15, where they left off the exoneration of payment for raw materials imported for the manufacture of medicines. Chang said of the publication of the new law in the Gaceta:

"Any doubts, any error, or omission there is in the publication of this law, the only person responsible is Rigoberto Chang Castillo, and we are willing to clarify the doubts, errors or omissions....There was no ill will nor manipulation, nothing like that, what happened was that a paragraph was left out of Article 15 and that will be rectified."

However, in later stories, La Tribuna quotes Congressman Marco Antonio Andino as finding errors in Articles 15, 16, and 19. Marvin Ponce, fourth Vice President of Congress and a UD party member, said,

"It's deplorable that at least three articles were disrupted...one of them is the revision presented by Congressman Marlon Lara so that supplies to produce medicines by Honduran companies would be exonerated, including, we said here (in chambers), that medicines for animals would be exonerated, but in the publication it's different and the exoneration isn't included."

Also missing was a motion that exonerated those owing back taxes of the fines and surcharges on them, and the tax on rental units was supposed to be five percent, starting with luxury rentals of 15,000 lempiras, but was printed as a 10 percent tax. Ponce indicated that the printed version also left out exoneration of fines and surcharges for those with a debt to the agricultural development bank, BANADESA.

Ponce continued,

"There is no confidence of that approved by the members in open session, the true law has been disrupted by the revision committee or by the people who sent this document to the Executive or in those instances."

German Leitzelar, a member of the revisions committee said

"we are reviewing La Gaceta and saw that the document of ours does not agree, there are errors in copying and changes in the working, and the members of the revision committee need to present a decree to amend by addition and correction things based on what we submitted."

His list of changes needed includes Articles 1, 7, 15, 16, 19, 20, and 21. As the Liberal Party Congressman Jose Simon Azcona said,

"laws should be published as they were approved in the National Congress, if there is a group that is not in agreement with this, they can submit a law to amend the existing law, but no one should change things outside of Congress."

Oswaldo Ramos Soto, another member of the revisions committee, urged people to wait until the committee has fully compared the document they sent to the Executive branch for signature with that published in La Gaceta.

Despite these objections, the new tax law goes into effect as published in 20 days from its April 22, 2009 date of publication. It will be up to Congress to approve revisions and amendments to the version published, to correct any errors in the published version. Supposedly the committee on revisions is working on such a set of amendments now.

These changes to the law aren't minor, if we go by the comments on the scope of changes in the various La Tribuna articles. The revision committee members seem to be trying to calm the waters, portraying the changes as minor copying errors, rather than deliberately introduced changes. Interestingly, only Marvin Ponce of the UD party called for an investigation into how and more importantly, where, the changes were introduced. I doubt he'll get his investigation.