Is the firing of justices actually legal? Part 3

In previous posts, we have considered how the offenses the Honduran Supreme Court's own spokesman cited contradict the claim that its dismissal of justices in opposition to the coup was not about their political stance.

We have examined how, as has become customary in post-coup Honduras, the Constitution is cited inappropriately as the authority for one of the dismissals.

The target of this constitutional charge, Tirzah Flores Lanza, was also said to have violated chapters 10 and 11 of the "Law of the Judicial Profession" (Ley de la Carrera Judicial), an offense she shares with Guillermo López. For López, this charge is specifically associated with his participation in demonstrations at Tegucigalpa's airport on July 5, 2009 by Hondurans hoping Mel Zelaya would be able to land and re-enter the country from which he was illegally expatriated.

The Ley de la Carrera Judicial, Decreto 953 of 1980, Chapter 10, enumerates the duties, rights, and those things that are "incompatible" with judicial service. It contains nine articles, making it hard to pinpoint specifically which of these the Supreme Court might be arguing was violated. But the most likely basis for this dismissal would be to argue that they failed to exhibit "irreprochable conducta pública y privada" ("irreproachable public and private conduct") as called for in Article 44 of Chapter 10. Alternatively, the offense in question might be that of "absenting him/herself during days or hours of work, except with permission" enumerated in Article 45. Chapter 11 of this law enumerates the offenses that may be committed by a judge, which includes such things as absenting themselves from their post.

Presumably, the court's claim to simply be imposing a penalty for unacceptable actions-- not for the opinions which led to those actions-- is based on an argument that being away from their assigned courts without permission was unacceptable, and in the case of Guillermo López, specifically, that his getting injured during a demonstration was not "irreproachable conduct".

What the spokesman for the Supreme Court did not mention is that Chapter 12 of the same law lists as possible sanctions fines; suspensions; and only third, firing. So even if the court is basing its action on the relatively broad rubric of "irreproachable action", the fact remains that it chose the harshest possible sanction.

Law professor Ramón Barrios was convicted of violating the Law of Organization and Attributes of the Courts (LEY DE ORGANIZACIÓN Y ATRIBUCIONES DE LOS TRIBUNALES), article 3, numbers 1, 4 and 6, prohibiting "judicial authorities from mixing themselves in attributes of other authorities or to exercise other attributes than those that the law determines", or sending "congratulations or censure for its actions to the Executive Power", or participating in "acts of political proselytism". This law, abbreviated as LOAT, is Decreto 76, originally passed in 1906. Article 3 concerns those things "prohibited for judicial authorities", with the specific numbers cited being included.

All this for first presenting and then publishing a legal analysis in his role as professor of law, explicitly exempted in the Constitution from the clauses concerning conflicts of interest. As Barrios himself said,

constitutionally I have the right to be professor in the university and the Court cannot intrude in my class, because what the law prohibits me is that I would pronounce about cases that come before me.

Barrios' lecture did not concern a case before him, but rather, expressed his analysis of the constitutional law and concluded that the removal of Zelaya from office was unconstitutional. What the Supreme Court appears to have done in his case is to go back to the most primordial law it could find, ignoring the more recent exclusions allowed for the exercise of legal teaching, and then bend even those numbers as far as they could to interpret presenting a legal argument about the claim of a constitutional succession as "sending a censure" to the Executive Power (actually, of course, it would be the Legislative Power whose actions Barrios questioned); and interpreting the legal opinion reached as political, and equating teaching with political activism.

In both cases, the Supreme Court shows itself consistent with its actions in 2009: using vague sections of legislative codes in ways that hardly seem self-evident, and applying them in the harshest possible way to suppress other opinions.

This is not the practice of interpreting the law; it is an attempt to silence dissent. And it leads to one conclusion, which is that the legal system in Honduras is fatally flawed.

Is the firing of justices actually legal? Part 2

An article published in La Prensa on May 6, that demonstrates clearly the political nature of the charges against the dismissed justices, gives what to date appears to be the only source to identify sections of the legal code these justices are said to have violated.

Adán Guillermo López, who was disciplined for having participated in the popular demonstration at Tegucigalpa's airport on July 5, 2009, was charged with violating the duties outlined in Articles 10 and 11 of the Law of the Judicial Profession (Ley de la Carrera Judicial).

Ramón Enrique Barrios, punished for an analysis he presented as a lecture, that was published in August of 2009, under a claim of academic freedom in his role as a law professor, was said to have violated the Law of Organization and Attributes of the Courts, article 3, number 1

that prohibits the judicial authorities from mixing themselves in attributes of other authorities or to exercise other attributes than those that the law determines, and according to number 4 it is prohibited to send congratulations or censure for its actions to the Executive Power. He violated numeral 6 that prohibits the participation of judges in acts of political proselytism.

Tirza Flores Lanza, accused of leaving her job in San Pedro Sula on June 30 and take part in unspecified "actions", is said specifically to have violated the "duties, incompatibilities, and conduct established in chapters 10 and 11 of the [Law of the] Judicial Profession"; of not having asked permission to go to Tegucigalpa; of providing legal service against the code governing her position; and of violating Constitutional Article 319 that prohibits Judicial Power officers from "participation in meetings of partisan type of any type".

Quite a combination of violations: from a constitutional requirement to the laws governing the legal profession and the organization of the courts. But what do all these cited codes actually say? if there is one thing we have learned in the last year, it is that in Honduras, citing a law does not actually mean the law supports what you say it does.

Let's start with the Constitution. Article 319 is part of the section (Chapter XII) on the Judicial Power. It reads in full:

ARTICULO 319.- Los jueces y magistrados prestarán sus servicios en forma exclusiva al Poder Judicial. No podrán ejercer, por consiguiente, la profesión del derecho en forma independiente, ni brindarle consejo o asesoría legal a persona alguna. Esta prohibición no comprende el desempeño de cargos docentes ni de funciones diplomáticas Ad-hoc.

Los funcionarios judiciales y el personal auxiliar del Poder Judicial de las áreas jurisdiccionales y administrativa, no podrán participar por motivo alguno, en actividades de tipo partidista de cualquier clase, excepto emitir su voto personal. Tampoco podrán sindicalizarse ni declararse en huelga.

[Article 319. The judges and magistrates will lend their services in an exclusive form to the Judicial Power. They shall not exercise, for that reason, the profession of law in an independent form, nor dedicate themselves as counsel or legal advisor to any person. This prohibition does not include discharging the office of teacher nor Ad-hoc diplomatic functions.

The judicial officials and auxiliary personnel of the Judicial Power in the administrative and jurisdictional areas, cannot participate for any reason, in activities of a partisan type of any class, except to exercise their personal right to vote. Nor can they unionize nor declare themselves on strike.]

These constitutional requirements are intended to prohibit justices from having a private law practice, or conflicts of interest due to acting as a legal advisor, or for participating in "actividades de tipo partidista". This is what Tirzah Flores Lanza is accused of doing: and this means the court must be interpreting "partidista" here as meaning something rather more broad than the normal interpretation of this word in the Constitution.

While I have translated it here in its widest form, as "partisan", partidista actually comes from the root partido, of or pertaining to parties-- political parties. In the Honduran Constitution, the first reference to this cluster of meanings comes in Chapter III, Article 37, in the enumeration of rights of the citizen, including to "form political parties". The second instance is in Chapter IV, which deals with suffrage and political parties.

"Partidista" first occurs in Chapter V, concerning electoral functions, in the first appearance of a bar on political party participation by members of the Tribunal Supremo Electoral. The second appearance of the word comes in Chapter X, article 293, defining the police as "apolitical in the partisan sense". The third and final occurrence is in the bar on political partisan activity by members of the Judicial Branch.

In context, then, the cited section of the Constitution is about participating in political party actions.

But what Tirzah Flores actually did on June 30, the date for which she is accused, was to sign an important early legal declaration against the coup, a filing by a group of judges, magistrates, and others in the legal profession who rapidly became the Asociación de Jueces por la Democracia de Honduras, for which Tirzah Flores became a prominent spokeswoman.

Far from a partisan or political-party effort, this group has insisted that the judicial branch of Honduran government has lost its status as nonpartisan through its overt support for the coup d'Etat. The evidence for that position has been strengthened by the Supreme Court's insistence on persecuting members of this opposition group on flimsy legal grounds.

Is the firing of justices actually legal? Part I

Honduras' Supreme Court has voted, 10-5, to reaffirm its firing of justices who were opposed to the coup d'Etat that removed President José Manuel Zelaya Rosales in June of 2009, insisting this is a necessary defense of legality. With this, as we have previously noted, they reinforce their history of obstinate self-defense of actions that align the court with the coup.

But what, precisely, is the legal basis that the majority on the court claims? and what can this tell us about the nature of the Honduran Supreme Court, and its role in what is clearly a fragile constitutional state? To answer this, we need to trace through the thicket of Honduran law yet again, which will require more than a single post.

The president of the court has been firm: his actions were not retaliation for the opinions of the dismissed justices; they were a judgment that those justices had violated ethical rules. Yet to date, he has been unwilling to release the actual document of the court's decision, that might clarify this puzzling claim, even in response to the request by Sandra Ponce, Fiscal de Derechos Humanos in the Lobo Sosa government.

Let's go back to an article published in La Prensa on May 6, quoting Supreme Court spokesman Danilo Izaguirre, that gives us a beginning point to trace the specific violations for which the anti-coup justices were supposedly disciplined. According to Izaguirre, the following crimes were charged against each:

• Adán Guillermo López: "having participated in the violent demonstration in the outskirts of Toncontín airport on July 5, 2009 that concluded with a confrontation with police agents"; specifically, ending up with a wound in his left knee is described as "conduct incongruent with the legal norms that rule the discharge of justices and magistrates"



• Ramón Enrique Barrios "made declarations in a newspaper affirming that there was not a constitutional succession, published on August 18, 2009". Barrios argued that his statements, made in the course of teaching law at the UNAH campus in San Pedro Sula and only later published, were protected under academic freedom.



• Tirza Flores Lanza "absented herself from her judicial office on the 30th of June, 2009, being found that day in Tegucigalpa taking actions that are not inherent in her position without having a leave", in particular, taking part in filing a legal document.

While the specific charges against the other two dismissed at the same time, justice Luis Alonso Chévez de la Rocha and public defender Osman Fajardo Morel, are not noted, they are described in other sources as being accused for having taken part in the same demonstration as Guillermo López, on the day that Manuel Zelaya attempted to return to Honduras by air the first week after the coup.

It would seem almost impossible to deny that these individuals were punished by the Supreme Court for being on the other side of the debate about the legality of the coup.

The same article, relying on the spokesman of the Supreme Court, provides us the beginning point to trace the purported legal basis for these actions, giving citations of specific legal codes held to be violated for López, Barrios, and Flores Lanza.

To follow the apparent logic of the Supreme Court, we need to turn to those legal claims, a task that will take us back into questions of the organization of Honduran government and the still weak integration of judicial reforms that has been underway in the past decade. The complexity of these issues requires a series of separate posts.

But at the end of the day-- regardless of the way that legal codes are being marshaled-- the Supreme Court's own spokesman confirmed, on May 6, that the actions for which these justices are being disciplined were their expressions of opposition to the coup.

No matter what the legal framework, the choice to pursue these individuals is political, as even Porfirio Lobo Sosa points out.