Constitutional Branch Defends Itself

The Constitutional Branch of the Honduran Supreme Court attempted to defend its actions in declaring a winner in the municipal elections of San Luis, Comayagua a week ago. The notice they released makes it clear they're responding to pressure on social media.  Their defense is akin to stamping their foot and saying "because I said so".

The court reaffirmed its belief in the rule of law, and stated that its decision in this case was well founded in the constitution and laws of Honduras.  It also reaffirmed its right to hear the case, claiming dominion over the Tribunal Supremo Electoral (TSE).  It further wished to point out to the public that it was Santos Zelaya Chacón who sought to appeal the TSE's decision claiming his due process rights had been violated.  So its not the Supreme Court's fault that they had to hear this case, its Santos Zelaya Chacón's according to their logic.  The court argued that tossing a coin does not strip one of one's rights to appeal the election, except that it does in the TSE rules to which all candidates agree when running for office.

The court went on to allege that the Municipality of San Luis was notified not to allow anyone to assume office, that the case had been admitted, but that the Municipality ignored the court.  Finally, the court says its decision was firmly based in law and the constitution, without providing any backing for that claim.  They have not released a written judgement and this decision may never be published.  They simply assert they did the right thing. 

This branch of the court, packed by Congress with supporters of the neoliberal policies advocated by Juan Orlando Hernandez, you will recall, voted to install the National Party candidate, Santos Ivan Zelaya Chacón as Mayor of San Luis despite the Tribunal Supremo Electoral ruling that the election was a tie.  Tie runoff procedures in Honduras call for both candidates to agree to settle the tie by the toss of a coin.  Both candidates agreed, a coin was tossed, and Lenny Hernandez, the Liberal Party candidate won.  The Tribunal Supremo Electoral awarded him a certificate of election, and on January 27, 2014 he assumed office.

The TSE is supposed to be the ultimate election authority, but of course, that is no longer the case in post-coup Honduras. The hierarchy now goes Congress -> Supreme Court -> Tribunal Supremo Electoral.

In the meantime, Santos Ivan Zelaya Chacón decided to appeal to the Supreme Court claiming his due process rights had been violated.  The Constitutional Branch of the court took the case, and issued a 5-0 decision agreeing with him, and awarding him the election.

Since then, the Liberal Party filed a challenge appealing the decision; their appeal was apparently rejected by the Supreme Court with the statement that they have no standing.  The Constitutional Branch ruling is threatening the pact between the National and Liberal Parties in Congress.  The TSE then voted to affirm the Constitutional Branch ruling, and the very next day, the building housing the Mayor's office burned down in Sal Luis.  The same week a Liberal Party leader in San Luis was murdered.

Edmundo Orellana, admittedly a partisan of the Liberal party, wrote yesterday that:

Everything that has happened is the fault of the Constitutional Branch; none of these things would have happened in this municipality if they hadn't stuck their noses where they shouldn't.  This is a political problem and the Supreme Court is not authorized by the Constitution for this.  The magistrates have violated the Constitution of the Republic and thereby are exposed the consequences of this violation.

We happen to agree with Orellana, that the court took an ill considered and  unreasoned political decision, not a legal one.  We do not choose to question the court's assertion that Zelaya Chacón's due process rights were violated, but rather question why they themselves trample on the due process rights of the opposing candidate and the voters by appointing Zelaya Chacón as Mayor, unilaterally, and without any offered justification, other than that the TSE denied him his due process rights. The TSE's alleged error in denying Zelaya Chacón his due process rights does not merit the court ignoring the rights of the voters, and the rights of the opposition candidate, Lenny Flores.

Congress in the meantime is working on a compromise solution in which there would be a new election.  Yes, for once the Honduran Congress is making sense.  Both the legitimately aggrieved Liberal Party and even the voters of San Luis itself have called for a special election to determine the outcome, but Zelaya Chacón says he will not recognize the outcome of any such special election, arguing that only he had his rights trampled on by the TSE.

Cooler heads have prevailed.  The threat of the Liberal Party to break its alliance with the National Party over this issue worked, after they meet with the leaders of the Anti-Corruption Party and Libre to present a unified front in Congeress calling for a new election, which the National Party rejected.  The compromise solution arrived at, preserving so far the fragile Liberal-National Party coalition, has been for both candidates to irrevocably resign from candidacy to the office.  This probably will force a new election for Mayor in San Luis, Comayagua, but the Tribunal Supremo Electoral isn't saying that, as yet, preferring to wait for the paperwork and "study" the issue.

The only way Hondurans found to preserve anyones rights after the Supreme Court acted was to preserve no ones rights.  Lenny Flores and Santos Zelaya are now out of it, but the political parties will probably get a chance to propose new candidates for Mayor, and the people of San Luis might finally get a chanced for representation that they voted for, instead of representation imposed on them by a fully politicized Supreme Court.

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.

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.

Honduran Congress Moving to Dissmiss Supreme Court Justices

Rumors are flying tonight in Honduras. 

El Heraldo reports that the military have been called in by president of Congress Juan Orlando Hernandez to guard Congress in an extraordinary session this evening while it debates a report from the commission appointed yesterday to make recommendations about the Supreme Court in Honduras. 

El Heraldo reports that the commission recommended removing 4 to 7 of the justices.

Marvin Ponce, vice president of Congress, told the press that the removal of justices is the starting point of the discussion this evening. 

The decision to proceed, according to Ponce, comes from an imminent political crisis resulting from the primary elections carried out a month ago, combined with the Sala Constitucional's declaration that the Police Purification Law is unconstitutional.

Ponce's understanding is that "there is conflict at the highest levels...I understand that the vacant justice positions will be divided between Yani [Rosenthal] and the National Party.  In play is the subject of the recent elections, powerful groups that want to move pieces to stop the process." 

Ponce went on to tell El Heraldo that to not dismiss the justices would be to imperil the candidacy of Juan Orlando Hernandez, the head of Congress.

But wait a minute. Ponce has spread wild rumors before that had no basis in reality, so we need to take his information with a grain of salt.

First, Congress does not actually possess the power to remove a justice of the Supreme Court, who can only be removed for legal cause. 

Mauricio Villeda, newly elected presidential candidate of the Liberal Party, agrees that Congress hasn't got a legal leg to stand on. 

Roy Utrecho, of the Public Prosecutor's office, says what Congress is trying to do is an act of treason. 
Finally, Yani Rosenthal denies any involvement.

Ramon Custodio, commissioner of Human Rights in Honduras, commented that

The abuses that they are committing in the name of the people of Honduras from the National Congress are a terrible example for Rule of Law where you have an independence of the powers and things are worked out within the framework of institutionality.

Wenceslao Lara, Congressman for the Department of Cortes said:

We are the most corrupt [country] in Central America right now and one of the most corrupt in Latin America.  They're the incompetent ones, they're the ones doing harm; they're putting us in a situation that the people of Honduras don't want......

I call on the President of the Republic to reflect, and on Congress to stop this diabolical attempt that they are making against Honduras.  They are the ones who are incapable of governing the country at this time.

As of midnight in Tegucigalpa Congress was still in session.

Lobo: Supreme Court Is Enemy of the State

Porfirio Lobo Sosa said over the weekend that the Supreme Court, whose Constitutional branch recently concluded that the police cleanup law is unconstitutional, is an enemy of the state. 

Speaking after the ruling, Lobo Sosa said:

"This is like fighting for a way, but there is an enemy of Honduras there, and everything that we do it overturns, as in the case of the Regiones Especiales de Desarrollo or model cities; it's like the court is playing against the country....The police cleanup will continue despite the opposition of the Supreme Court."

 OK, the finer points of constitutional separation of powers seem to be beyond the Lobo Sosa administration's grasp, but that's hardly news for any of our gentle readers. But there is more to this story, and the more is one word: intimidation.

What Lobo Sosa is attempting to do is to shame the whole Supreme Court, which must still vote on the police cleanup law because the Constitutional branch's vote was not unanimous.  In theory they have 10 days to do so.  Until they vote, the cleanup goes on.

After calling the court out as enemies, he later said that he was confident that Chief Justice Jorge Rivera Avilés would give the Executive branch time to remedy the parts of the law that affect the accused's due process rights.

This is, of course, a tacit admission by Lobo Sosa that the law as written actually is flawed.

As if to underline his willful ignorance of the separation of powers, Lobo Sosa told HRN radio later in the day that he was urging the president of Congress, Juan Orlando Hernandez, to push through the Referendum and Plebiscite law so that the people can decide if the government should continue with the police cleanup or not. 

Lobo Sosa doesn't seem to be acknowledging that an unconstitutional act passed by plebiscite or referendum would still be unconstitutional and subject to court review under the Honduran constitution.

(This is a situation not unlike the one that led to the coup d'etat overthrowing ex-President José Manuel Zelaya. Then, based on Zelaya's interpretation of existing laws, he wanted to put in place a public poll-- much less than a referendum or "plebiscite"-- about whether or not to convene a constitutional convention.) 

The current Executive Branch (under Lobo Sosa) and Legislative Branch (led by Orlando Hernández) have had particular problems with writing legislation that preserves people's constitutional rights. 

No one, not even the Honduran Supreme Court, would argue that there isn't corruption in the police, and that it must be removed.  Instead of doing things the easy, unconstitutional way, the Lobo Sosa administration is being urged to do it in a legal, somewhat harder, fashion. 

After all, lie detector tests are fallible, drug tests can record false positives, and someone accused of corruption must be able to defend themselves against the charge, if it's false.

So says the Honduran constitution. That's the opinion of the Sala Constitucional of the Supreme Court.

Which the President of Honduras says makes the Supreme Court the enemy of Honduras.