It will come to no surprise to anyone keeping track of anything to do with model cities in Honduras that the Public Prosecutor's office has issued an opinion just before Easter finding that the law enabling the new Zonas Especiales de Desarrrollo y Empleo (ZEDE) is legal. The position paper, requested by the Constitutional Branch of the Supreme Court came from the Office for Defense of the Constitution.
The Supreme Court admitted a case challenging the ZEDE law as
unconstitutional because in order to pass it Congress changed some of
the supposedly unchangeable articles of the Honduran constitution. The argument is that Congress, in modifying Articles 294, 303, and 329 violated Article 374's provision that prohibits modification of Articles of the Constitution related to the territory and form of government of Honduras, the so called "stoney" articles. The Constitutional changes modify clauses that define the territory and form of government of Honduras.
On
accepting the case, the court followed procedure in requesting a legal opinion
from the Public Prosecutor's office. It skipped over the step of asking Congress for its documentation, however, putting this appeal on a fast track.
The Public Prosecutor, Oscar Chinchilla was formerly a member of the Constitutional Branch of the Supreme Court and was the sole member of that branch to find the original Model Cities legislation constitutional. His four fellow justices were summarily dismissed (illegally) by the same Honduran Congress that later appointed Chinchilla as Public Prosecutor.
Thus, the opinion in favor of the ZEDE law was never in doubt.
Showing posts with label Oscar Chinchilla. Show all posts
Showing posts with label Oscar Chinchilla. Show all posts
Monday, April 21, 2014
Wednesday, March 26, 2014
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:
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:
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:
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:
When asked who might have pressured the court, Villeda said:
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.
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.
Tuesday, February 11, 2014
Amapala, La Alianza, and Nacaome Studied for ZEDE Development
Honduras yesterday completed the announcement that Ebal Diaz started on February 5. At that time he pre-announced that a ZEDE would be established in Choluteca or Valle. His latest announcement adds some details, but it turns out there is a lot more information that could be shared, and has not been.
On Monday February 10 Diaz, along with Juan Orlando Hernández, annnounced that in cooperation with the Korean International Cooperation Agency (KOICA) they would do a study of where in southern Honduras to establish a ZEDE. Their announcement said that once an area is selected, the Koreans will develop a master plan for the administration of the ZEDE. Diaz said:
But there's a lot Diaz didn't say that's revealed in a document freely down loadable on the Honduran Ministry of Planning and External Cooperation (SEPLAN) website. This document, signed by members of the previous administration on August 23, 2012, lays out the project more fully.
Titled in English "The Feasibility Study and Master Plan for the Establishment of a Special Development Region in Honduras", the document is signed by representatives of KOICA, Coalianza, SEPLAN, and the then-Vice President of Honduras, Maria Guillen de Bogran.
This agreement was made before the current ZEDE law was passed (in June 2013) and thus refers to Regiones Especiales de Desarrollo (RED), the predecessor to ZEDES in the model cities legislation that was found unconstitutional.
KOICA agreed to contribute $4 million, and the Honduran government an unspecified amount, in support of the project. The first step called for was a feasibility study of three particular locations in southern Honduras.
The studied locations are Amapala in Choluteca, and La Alianza and Nacaome in Valle. Amapala is on Tigre Island in the Gulf of Fonseca. La Alianza is located on the Guascoran river which forms the boundary between El Salvador and Honduras and currently has poor access to transportation. Nacaome is on the Pan American highway which runs in one direction to El Salvador and in the other direction to Choluteca and on to Nicaragua.
The record of discussions between KOICA and the Honduran government indicates that the feasibility study should take three months from its inception. The three feasibility studies will be given to the Honduran government, which will then have one month to select one of the three locations to build out. Then, KOICA will do a more complete feasibility study, a concept design, a master plan for the design and operation of the ZEDE, and an implementation plan, all to be delivered about 19 months after the site is selected, or about halfway through the Hernández administration's term.
While the agreement between KOICA and the Honduran government was signed back in 2012, apparently Porfirio Lobo Sosa decided to sit on it. Juan Orlando Hernández, who traveled to Korea to see their economic development zones while head of Congress, and who supports the idea of model cities and economic development zones in Honduras, decided to proceed.
Like the model cities law, the ZEDE law has been contested, and on February 8 the Honduran Supreme Court admitted a challenge to the law. The challenge alleges that the ZEDE law violates articles 294, 303 y 329 of the Honduran constitution. These clauses have to do with the ordering of the Honduran territory, the justice system, and the economic development of Honduras.
After admitting the legal challenge, the Constitutional branch of the court passed the case on to the Public Prosecutor, Oscar Chinchilla, for comments. Chinchilla was previously the lone Supreme Court justice in the Constitutional branch who did not find the model cities law unconstitutional. Further, he traveled with Hernandez on the trip to visit Korean economic development zones. This suggests it is unlikely he will find anything wrong with the ZEDE law.
In theory, Honduras says it has local buy-in from the mayors of these towns. But the ZEDE law exempts lands adjacent to the Gulf of Fonseca and on the Caribbean coast from having to hold a referendum for the population to approve being incorporated into a ZEDE.
So it will not surprise us if Amapala ends up being selected for development: the possibilities there include everything from a new port to luxury ocean residential properties, all in an area that has continued to be subject to tension with Honduras' neighbors on the Gulf of Fonseca. All this, and no need to hold a popular referendum if this site is selected.
On Monday February 10 Diaz, along with Juan Orlando Hernández, annnounced that in cooperation with the Korean International Cooperation Agency (KOICA) they would do a study of where in southern Honduras to establish a ZEDE. Their announcement said that once an area is selected, the Koreans will develop a master plan for the administration of the ZEDE. Diaz said:
It's an ambitious project which we start this day with a study and design of the country's first economic zone.
But there's a lot Diaz didn't say that's revealed in a document freely down loadable on the Honduran Ministry of Planning and External Cooperation (SEPLAN) website. This document, signed by members of the previous administration on August 23, 2012, lays out the project more fully.
Titled in English "The Feasibility Study and Master Plan for the Establishment of a Special Development Region in Honduras", the document is signed by representatives of KOICA, Coalianza, SEPLAN, and the then-Vice President of Honduras, Maria Guillen de Bogran.
This agreement was made before the current ZEDE law was passed (in June 2013) and thus refers to Regiones Especiales de Desarrollo (RED), the predecessor to ZEDES in the model cities legislation that was found unconstitutional.
KOICA agreed to contribute $4 million, and the Honduran government an unspecified amount, in support of the project. The first step called for was a feasibility study of three particular locations in southern Honduras.
The studied locations are Amapala in Choluteca, and La Alianza and Nacaome in Valle. Amapala is on Tigre Island in the Gulf of Fonseca. La Alianza is located on the Guascoran river which forms the boundary between El Salvador and Honduras and currently has poor access to transportation. Nacaome is on the Pan American highway which runs in one direction to El Salvador and in the other direction to Choluteca and on to Nicaragua.
The record of discussions between KOICA and the Honduran government indicates that the feasibility study should take three months from its inception. The three feasibility studies will be given to the Honduran government, which will then have one month to select one of the three locations to build out. Then, KOICA will do a more complete feasibility study, a concept design, a master plan for the design and operation of the ZEDE, and an implementation plan, all to be delivered about 19 months after the site is selected, or about halfway through the Hernández administration's term.
While the agreement between KOICA and the Honduran government was signed back in 2012, apparently Porfirio Lobo Sosa decided to sit on it. Juan Orlando Hernández, who traveled to Korea to see their economic development zones while head of Congress, and who supports the idea of model cities and economic development zones in Honduras, decided to proceed.
Like the model cities law, the ZEDE law has been contested, and on February 8 the Honduran Supreme Court admitted a challenge to the law. The challenge alleges that the ZEDE law violates articles 294, 303 y 329 of the Honduran constitution. These clauses have to do with the ordering of the Honduran territory, the justice system, and the economic development of Honduras.
After admitting the legal challenge, the Constitutional branch of the court passed the case on to the Public Prosecutor, Oscar Chinchilla, for comments. Chinchilla was previously the lone Supreme Court justice in the Constitutional branch who did not find the model cities law unconstitutional. Further, he traveled with Hernandez on the trip to visit Korean economic development zones. This suggests it is unlikely he will find anything wrong with the ZEDE law.
In theory, Honduras says it has local buy-in from the mayors of these towns. But the ZEDE law exempts lands adjacent to the Gulf of Fonseca and on the Caribbean coast from having to hold a referendum for the population to approve being incorporated into a ZEDE.
So it will not surprise us if Amapala ends up being selected for development: the possibilities there include everything from a new port to luxury ocean residential properties, all in an area that has continued to be subject to tension with Honduras' neighbors on the Gulf of Fonseca. All this, and no need to hold a popular referendum if this site is selected.
Monday, January 7, 2013
Supreme Recusal
When the US Embassy stated that a solution to the crisis about separation of powers would come from the Honduran Supreme Court, they endorsed a ludicrous legal process that got underway today.
To catch up: last week Chief Justice Rivera Aviles seated the four new de facto justices appointed by Congress, without comment.
He did so despite his so-called statement of solidarity with the deposed justices, at least one of whom was sitting in her office in the Supreme Court building at the time. No surprise since we surmised Rivera Aviles was actually in favor of the Congressional action.
In his role as Chief Justice he assigned the new judges to the Sala Constitucional, replacing the four deposed justices. He then asked them to determine if they could hear the appeal of unconstitutionality submitted on behalf of the four justices dismissed, and if they ruled they could, to issue their ruling on said appeal.
Let's be sure you understand this: the four justices whose appointment is at issue were asked by the Chief Justice of the Honduran Supreme Court to decide whether to hear an appeal of their appointment.
Today that group of four judges, plus Oscar Chinchilla, the lone justice in the Sala Constitucional not fired, took up the appeal of the four justices fired by Congress. They promptly recused themselves, sending the appeal back to Rivera Aviles for disposition.
Rivera Aviles' next step will either be to try and conform a special Sala Constitucional to hear just this appeal, selecting from the remaining justices, or he may turn to the list of 30 or so judges nominated by Congress as potential candidates for the court who were not chosen, to compose a special bench to hear this one appeal.
Since eight of the remaining justices on the Supreme Court wrote a letter supporting the fired justices, and therefore should recuse themselves from hearing this appeal, Rivera Aviles should be able to choose the judges he wants to hear the case from this judicial back bench, to craft the outcome he desires.
Meanwhile, Ramon Custodio, the Human Rights ombudsman, stated that if this case gets to the Interamerican Court of Human Rights at the OAS, it is given that the government of Honduras will lose the case and be condemned, yet again, by the court. Custodio releases his own report on the incident tomorrow, so stay tuned.
To catch up: last week Chief Justice Rivera Aviles seated the four new de facto justices appointed by Congress, without comment.
He did so despite his so-called statement of solidarity with the deposed justices, at least one of whom was sitting in her office in the Supreme Court building at the time. No surprise since we surmised Rivera Aviles was actually in favor of the Congressional action.
In his role as Chief Justice he assigned the new judges to the Sala Constitucional, replacing the four deposed justices. He then asked them to determine if they could hear the appeal of unconstitutionality submitted on behalf of the four justices dismissed, and if they ruled they could, to issue their ruling on said appeal.
Let's be sure you understand this: the four justices whose appointment is at issue were asked by the Chief Justice of the Honduran Supreme Court to decide whether to hear an appeal of their appointment.
Today that group of four judges, plus Oscar Chinchilla, the lone justice in the Sala Constitucional not fired, took up the appeal of the four justices fired by Congress. They promptly recused themselves, sending the appeal back to Rivera Aviles for disposition.
Rivera Aviles' next step will either be to try and conform a special Sala Constitucional to hear just this appeal, selecting from the remaining justices, or he may turn to the list of 30 or so judges nominated by Congress as potential candidates for the court who were not chosen, to compose a special bench to hear this one appeal.
Since eight of the remaining justices on the Supreme Court wrote a letter supporting the fired justices, and therefore should recuse themselves from hearing this appeal, Rivera Aviles should be able to choose the judges he wants to hear the case from this judicial back bench, to craft the outcome he desires.
Meanwhile, Ramon Custodio, the Human Rights ombudsman, stated that if this case gets to the Interamerican Court of Human Rights at the OAS, it is given that the government of Honduras will lose the case and be condemned, yet again, by the court. Custodio releases his own report on the incident tomorrow, so stay tuned.
Wednesday, November 28, 2012
Police Clean Up Law Appears Unconstitutional
The Constitutional Branch of the Honduran Supreme Court ruled 4 to 1 that the law defining procedures for cleaning up corruption in the police is unconstitutional; this on the same day that the Lobo Sosa government seeks to extend the bill enabling the cleanup for another six months. Only justice Oscar Chinchilla voted to uphold the law.
The law which regulates the police cleanup calls for an examination of each and every police officer, requiring them to pass a confidence check that involves a psychological exam, a lie detector test, an examination of their finances, and a drug test. The law modified the police code so that there was no due process right of appeal of any findings under this confidence check. It stipulated that any failure to pass any of the steps of the confidence exam was automatically grounds for immediate dismissal.
Questions have been raised about the validity of the tests, and especially the evaluation of the results of the lie detector tests. A fairly high level officer who had passed the lie detector test was recently arrested during an organized crime operation with over $200,000 in cash on him. While his evaluation had not been finalized, he had, according to the Dirección de Investigación y Evaluación de la Carrera Policial, passed all but the financial checks. This case is being seen by Hondurans as evidence that the confidence tests are not sufficiently rigorous to remove all police corruption, casting doubt on the entire process.
Of the 233 officers that failed the tests, so far, only 33 have been dismissed. The rest remain part of the active police force, though some without any assigned duties, all collecting their salaries.
Back in August the Public Prosecutor's office submitted, at the court's request, an opinion that the law, decreto 89-2012, was unconstitutional because it removed the police officer's right to due process and their presumption of innocence. The Constitutional Branch agreed with the Public Prosecutor's office by its 4-1 vote, but this decision carries no legal force because it was not unanimous. It is now up the the entire Supreme Court to convene and consider the law and issue an opinion.
The law which regulates the police cleanup calls for an examination of each and every police officer, requiring them to pass a confidence check that involves a psychological exam, a lie detector test, an examination of their finances, and a drug test. The law modified the police code so that there was no due process right of appeal of any findings under this confidence check. It stipulated that any failure to pass any of the steps of the confidence exam was automatically grounds for immediate dismissal.
Questions have been raised about the validity of the tests, and especially the evaluation of the results of the lie detector tests. A fairly high level officer who had passed the lie detector test was recently arrested during an organized crime operation with over $200,000 in cash on him. While his evaluation had not been finalized, he had, according to the Dirección de Investigación y Evaluación de la Carrera Policial, passed all but the financial checks. This case is being seen by Hondurans as evidence that the confidence tests are not sufficiently rigorous to remove all police corruption, casting doubt on the entire process.
Of the 233 officers that failed the tests, so far, only 33 have been dismissed. The rest remain part of the active police force, though some without any assigned duties, all collecting their salaries.
Back in August the Public Prosecutor's office submitted, at the court's request, an opinion that the law, decreto 89-2012, was unconstitutional because it removed the police officer's right to due process and their presumption of innocence. The Constitutional Branch agreed with the Public Prosecutor's office by its 4-1 vote, but this decision carries no legal force because it was not unanimous. It is now up the the entire Supreme Court to convene and consider the law and issue an opinion.
Friday, March 25, 2011
Zelaya Case Continues
Radio Globo just reported that Supreme Court Judge Oscar Chinchilla has ordered that Manuel Zelaya Rosales stand trial for the charges of "fraud" and "abuse of authority", but has dismissed the arrest warrants. Zelaya is free to return to Honduras without fear of being arrested, but the case brought by the Public Prosecutor, Luis Rubi, continues.
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