Ebal Diaz: "We've already contained the corruption"

Large Torchlight Marches (Marchas de las Antorchas) have been going on every night in different cities in Honduras for at least the last three weeks.

Participants have called for three things: an end to impunity, the establishment of an International Commission against Impunity, and the resignation of Juan Orlando Hernández, President of Honduras, due to corruption in his election campaign.

The Partido Nacional has admitted that the election of Hernández was funded in part by resources diverted from the IHSS. Nonetheless, both the party, and the government it controls, are against Honduras calling for an International Commission against Impunity.

That's the word from Ebal Diaz, a Honduran presidential advisor.

These commissions, organized by the UN, have been effective in other countries where they've been formed, such as Guatemala.

Honduras doesn't need one because, according to Diaz, "We've already contained the corruption." 

Diaz goes further, calling the Guatemala commission ineffective. He relates that it has cost $150 million over its seven year life, and successfully brought and prosecuted only four cases of corruption or impunity. 

Diaz said:

"Is this an alternative for the country?  There are the numbers; they're not something we invented.  So the Honduran people need justice...When?  In three years?  In 5 years? or now?  We're looking for solutions now by strengthening our [government] institutions."

Diaz suggests the government might accelerate its pace of cleaning up corruption and implementing training.

These actions, however, do nothing to capture and prosecute those who perpetrated the crimes, something Diaz fails to address.

The recent Congressional Commission which reviewed a series of corruption cases involving the IHSS, INPREMA, and the IP, and the assassinations of notable government officials like Alfredo Landaverde, was relatively useless.

It served only to confirm what everyone already knows: the Public Prosecutor's office is barely investigating these cases of corruption and impunity, some of which have stretched on for more than seven years in the investigative state. While it might eventually bring charges against those immediately responsible, it likely will not pursue those who planned and directed the crimes. From that perspective, then, even with the "numbers" Diaz cites, a commission like that in Guatemala would be an improvement.

The level of corruption and impunity in Honduras is hard to believe. In fact, even as the Congressional report was being released, the lead on the congressional committee, Mario Perez, was being identified in the Honduran press as a drug trafficker, based on Honduran government documents from 2012.

Impunity reigns in Honduras not because the Public Prosecutor's office is incapable of pursing these crimes. It has been endlessly trained under US and European foreign aid programs in investigation and prosecution of organized crime. 

To pursue these crimes is neither politically expedient, nor good for a prosecutor's longevity.  No government program will address either of these risks.

The previous Prosecutor against corruption, Roberto Ramirez Aldana, who had headed the IHSS investigation from the start, recently took an extended leave to assume a government post as Honduras's Ambassador to UNESCO.  He did so because the Honduran Military Intelligence agency informed him of credible death threats against him and suggested he leave the country.

One of the trails of corruption leads directly to the currently ruling Partido Nacional. But the current Public Prosecutor, Oscar Chinchilla, was appointed by that party, while Juan Orlando Hernandez was the President of Congress, during the presidential term of Porfirio Lobo Sosa.  Chinchilla sets the priorities for the office. He's focusing the department on corruption during José Manuel Zelaya's term as president, largely ignoring more recent corruption that can be linked to his own party.

Arturo Corrales, Honduras' Foreign Minister, has said Honduras will not ask for an International Commission against Corruption from the UN.

Rigoberto Chang Castillo, currently Minister of Justice, the Interior, and Decentralization, went further: he made up a criterion for when such a commission is necessary: "Only when there's a high degree of ingovernability". Chang Castillo claims that "Honduras isn't worthy" of such a designation.  These kinds of commissions, he continued,

"uniquely can be asked for by the government of the Republic when the country is in a state of ingovernability and there is no confidence in the institutions of the State....This is requested when the Judicial system has collapsed."

The irony is, Chang Castillo precisely describes the Honduras that the Torchlight Marchers see.

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.