National Party intransigence blocks 4th vote on Honduran Supreme Court

The National Party has lost 4 votes to elect its slate of proposed candidates for the Honduran Supreme Court, and yet, proposes to do a fifth vote today on the same slate of candidates.  At least for the moment, the two party system in Honduras is finally breaking down, and neither the Liberal, nor the National Party's are adapting to the existence of an opposition.

The National Party will try for a fifth time today to force the Honduran Congress to elect its slate of 7 candidates to the Supreme Court.  It negotiated this slate with its rival Liberal Party, but there's ample evidence in the vote tallies that Liberal Party members are defecting and not voting for the entire slate, especially if you believe that the bribed candidates from our previous post voted for the official slate of candidates. 

Last night in the fourth round of voting,  5 candidates hit 85 votes, one shy of the number of votes needed to elect the candidate to the court.   Two received 84 votes.  One received 83 votes.  So its clear that its not just the Libre, PAC, and PINU members holding up the election of justices, as the Congressional leadership wants us to believe. At least two of the people counting the votes last night:  Eduardo Coto and Jenny Murillo, have been named as having received bribes.

PAC has offered to negotiate a solution, but the National Party leadership continues to try and impose its will, with the help of the Liberal Party. At stake is which party, Liberal or National, controls the Supreme Court.  All of the current nominees are members of either the National or Liberal Parties.  None are members of PAC or Libre or PINU.  PAC is making the argument that justices should be selected not based on party affiliation, but rather on which would be best for the country.  So far the National Party doesn't agree.

Falsified Supreme Court Decision

On November 25th the Constitutional branch of the Honduran Supreme Court emitted a ruling finding the government responsible for defaulting on a payment to a Honduran pharmaceutical company, and ordering it to pay immediately 126 million lempiras.

Or did they?

On December 3 of this year, the Honduran press covered the release of a Constitutional Branch of the Supreme Court legal decision, upholding a lower court ruling that the government of Honduras owed Farmasula S.A. de C.V. 126 million lempiras (about $6 million) based on the government defaulting on a payment of about 61.5 million lempiras (about $2.9 million)  to the company.

The order was "signed" by Justices Silvia Trinidad Santos Moncada (president of the Constitutional branch of the Supreme Court), Jose Elmer Lizardo Carranza, Jorge Alberto Rivera Aviles, Tomas Arita Valle, Reina Sagrario Solarzano Juarez, and Lidia Estela Cardona Padilla.

Now, there are several problems with this order.  First, it supposedly has six signatures of justices, but each branch of the Honduran Supreme Court consists of five justices, not six.  Where did that sixth justice come from?

Second, there are the names of several justices there that don't ordinarily belong on a Constitutional branch opinion.  I refer of course to justices Alberto Rivera Aviles, Tomas Arita Valle, and Reina Sagrario Solarzano Juarez.  They are not listed as members of the Constitutional branch, and so could come to sign an opinion there only if some of the assigned justices were absent.

This turns out to be the case.  Three of the justices assigned to the case, Lidia Estela Cardona Padilla, German Padilla, and Victor Lozano, were out of the country the day the case was supposedly decided, attending a judicial seminar.

By being out the country with her colleagues at a judicial seminar, Lidia Estela Cardona Padilla could not have participated in any debate or signed the decision on November 25th.  She flat out denies that her legitimate signature appears on the document.

The accuracy of the order is supposedly guaranteed by the signature and seal of Carlos Alberto Almendarez Calix, secretary of the Constitutional branch.  Did he goof and add her name to the list of signatories?

But more importantly, why was this case, which had been tabled for further study and not scheduled to be decided, suddenly brought up and replacement justices assigned while the three normal members of the Constitutional branch were out of the country attending a legal seminar? 

Someone needs to ask Justice Silvia Santos Moncada that question.

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:

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.

Controlling the Supreme Court

The Honduran Supreme Court last week rolled over and offered its belly to Congress, voting 10-3 to open a disciplinary investigation into justice Marco Zuniga.

Zuniga, you will recall, wrote a scathing letter which he made public to chief justice Jorge Rivera Aviles in which he accused Rivera Aviles of being an alcoholic.

The Supreme Court vote came shortly after Congress threatened to dismiss Zuniga if he maintained his confrontational attitude with Rivera Aviles.  The threat came from Congressman Oswaldo Ramos Soto, chief author of many of the laws the previous Constitutional Branch of the Supreme Court found unconstitutional.  Ramos Soto says that Congress gave Rivera Aviles special powers to have full authority over personnel within the court, to re-assign justices to other positions within the Supreme Court, and to appoint the new council that will in the future, review and appoint judges. 

Ramos Soto said:

It's too bad that in the highest court of justice you have this type of problems.  I recommend to the magistrates involved that they moderate their tempers, calm down, because if it comes to Congress, Congress is ready to make the call, including firing them for insubordination in the Court.

The Supreme Court took the action of opening an disciplinary investigation into justice Marco Zuniga after voting 10-3 to confirm that Chief Justice Rivera Aviles was authorized by Congress to move judges around between the branches of the court, an unprecedented action.  Neither Rivera Aviles nor Marco Zuniga participated in the voting.

Congressional threats are not limited to the Supreme Court.  Now that Congress has given itself the power to remove anyone in government, it is considering removing the Public Prosecutor, Luis Rubí, who has a lousy investigation and conviction record. 

During the discussion of a revision to the law code to address hate crimes against women, Juan Orlando Hernandez said:

In advance, I tell you, I would not take it badly that as we are evaluating the performance of the Supreme Court and the Police, that this be done with the public prosecutors.

Marvin Ponce has said Rubí will be the first political justice case tried under the new law. 

This statement comes just after the Comisión de Reforma de la Seguridad Pública (CSRP) issued a report requesting the anti-corruption prosecutor be removed for corruption and incompetence, and a second report supposedly financed by the US Embassy was produced, recommending a complete reorganization of the public prosecutor's office. 

Marvin Ponce, vice president of Congress, confirmed he's heard of these reports, but the actions that might be taken are just rumors.

As Rafael Padilla of the Lawyers Against Corruption said:

The tragedy of Honduras is that justice is political, not legal, a product of the autocratic government that prevails.

As if to underscore Padilla's point, the Supreme Court ruled 9-4 with two abstentions to uphold the police cleanup law, the very same law that the four justices illegally fired by Congress said was unconstitutional because it failed to provide for the due process rights of the accused. So Congressional moves to remove justices who dared to disagree with them worked: from here on, expect Congress to be able to act with impunity.

Honduran Congress Consolidates More Power

If it wasn't clear to outside observers, it certainly should be now.  The Honduran Congress is bent on controlling every aspect of the government, and by control, I mean, removing any trace of the constitutionally specified independence of powers. 

Their current obsession is with disciplining the Supreme  Court.

The new Congressional session started on January 25 of this year.  Since they started this new session they passed the so-called model cities legislation (decreto 236-2012) that gives Congress the ability to transfer territory to the sovereignty of a foreign set of investors. 

Honduran analysts note that this law includes special tourist zones that could see the transfer of the Copan archaeological site to foreign control.

Congress also passed the law of political judgement (decreto 231-2012). The US Embassy seems to believe this is an impeachment law, but it isn't: it circumvents Honduran due process guarantees.  It would allow Congress to continue to do what it did illegally in removing Supreme Court justices in December, leading to the current constitutional crisis.

Under the law of political judgment, Congress now has the authority to remove Supreme Court justices or even Presidents because Congress doesn't like their policies. It supersedes the existing law that already allowed the Public Prosecutor to bring charges against any high government official, which would be heard in the Supreme Court, and could lead to removal from office (which is why the Honduran Constitution no longer has an impeachment procedure: they provided a due process procedure in the legal code instead).

Congress also passed the new Minerals and Mines law, which allows concessions to be given to foreign governments in addition to private companies. This law is potentially unconstitutional because it presents the same kind of sovereignty issues raised by the model cities legislation that was found unconstitutional by the now neutered Supreme Court.  The new law governs concessions of gemstone (Honduras has opals and other gemstones in commercial quantities) and metallic mineral mines for a maximun of two (non-metallic minerals) to five (metallic minerals) years starting from the issuance of an environmental license.  It splits the income from such concessions between the municipality in which the mine is located, and the central government.

Congress also restricted, though changes to Article 17 of the constitution, the international treaties and agreements in which the government can participate. This pre-empts the role of the executive branch. Congress has always had to ratify treaties; this way, they do not have to pay the political price for it.

But these are almost minor violations of the Constitution, taken with impunity knowing that they have already reshaped the current Supreme Court into a rubber stamp. What they did next is bolder, clearer, and completely guts separation of powers.

This was to pass a new set of constitutional amendments that restricts what the Justices of the Constitutional branch, and only the Constitutional branch, can do. It also strengthens the powers of the Chief Justice, who, current experience shows, can be an ally of the Congress against the court. 

To understand the new law, a reminder: the Honduran Supreme Court's Constitutional branch hears challenges to laws as unconstitutional. Their decisions have to be unanimous. If their decision is not unanimous, the next step has been for the full court-- including the justices of the Constitutional Branch-- hear the matter. The full court merely needs to reach a majority decision. Since the Sala Constitucional includes one-third of the full court, the idea is, the other two-thirds will clarify the signal.

The new law passed by Congress makes a mockery of that provision. It specifies that in the event of a non-unanimous vote by the Constitutional branch on a case, those justices cannot vote on the matter when the full Supreme Court meets, or participate in the deliberations. 

This amendment was concealed in a series of constitutional amendments passed without discussion at the end of the previous session, on January 24, 2012 (Decreto 237-2012).  Maybe Congress doesn't trust the justices they just appointed?  In the opinion of most lawyers in Honduras, this amendment will undermine judicial certainty in Honduras. It certainly reshapes the balance of powers, depriving the Supreme Court of autonomy in action.

But that wasn't enough. Congress also passed legislation that deprives citizens of the right to even appeal the constitutionality of a law! 

Congress put this in place because of threatened challenges to their newly ratified replacement for the defeated model cities law, establishing Regimenes Especiales de Desarrollo. Citizen appeals of the constitutionality of the original model cities law worked as the Honduran Constitution provided.

That won't happen again.

Citizens may now only challenge the constitutionality of rules implemented by the government to enforce a law. Although Congress has shown it has no difficulty passing sweeping changes to the Constitution, apparently it irritates them to have to get it right, legally. Now, all their laws are, by law, constitutional.

Isn't democracy wonderful?

Its Legal Because I Said So: Porfirio Lobo Sosa Speaks

Porfirio Lobo Sosa is in denial.  He told the press yesterday:

What Congress did is constitutional and is legal.

This is proof by assertion in the face of objections from the legal profession, judges, and even his own Justice and Human Rights Minister, Ana Pineda, who believes that what happened is corrupt, and that the dismissed justices need to be reincorporated into the Supreme Court

But of course, Pineda's just there as window dressing.  No one in the Lobo Sosa government has ever bothered to pay attention to anything she says.

Then Lobo Sosa repeated his mantra of denial:

We should look ahead.

And presumably ignore the error ridden past that is his regime.

Then he dropped this gem:

With lawyers nothing ever is OK, some say one thing and others say something else; I respect lawyers because they exist for this, to make you see as truth what is not truth and the inverse.

Actually, Lobo Sosa will be hard pressed to find a lawyer (outside of Congress, that is) who is arguing anything except that Congress's actions in removing four Supreme Court justices were illegal and unconstitutional.

The consensus includes Human Rights Ombudsman, Ramon Custodio, who released his report on the events. He concludes that the four justices were dismissed in "an arbitrary, abusive, and defective act" by Congress.

But don't tell the President. He knows it was constitutional, because he said so.

Someone else in his administration, though, may have a better sense of law. Late Tuesday night, long after the original article was posted in El Heraldo's online edition, an edit was added at the beginning:

Lobo supports a reform of the Ley de Policía that would make the right to a defense prevail, the aspect on which was based the ruling of the fired magistrates concerning the purification decree.

So, now Lobo's position seems to be: it was entirely legal to fire the judges; and the law the judges found unconstitutional should be reformed to add back the missing constitutional protections, so the judges were right all along.

Perfectly coherent position. Almost like those lawyers who "make you see as truth what is not truth, and the inverse".

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.

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.

Model Cities Law Unconstitutional

The law enabling Regiones Especialles de Desarrollo (RED) sometimes referred to as Model or Charter Cities, has been found unconstitutional by the Constitutional Law branch of the Supreme Court in Honduras.  Justices  José Antonio Gutiérrez, José Ruíz, Gustavo Enrique Bustillo, and  Edith María López voted to sustain the legal challenge brought in 2011.  Only justice Oscar Fernando Chinchilla voted to reject the legal challenge.

Justice Chinchilla traveled to southeast Asia to visit Korean economic development zones with President of the Senate Juan Orlando Hernandez and refused to recuse himself from the case.

Because the decision was not unanimous, Chief Justice Jorge Rivera Aviles will have to assemble the full court of 15 justices and get their votes over the next 10 days before there is a final determination.

Luis Rubi: Police Cleanup Law Unconstitutional

We have often found ourselves critical of Luis Rubí and the Public Prosecutor's office. But we do agree with his latest finding: the law under which the Honduran police are being purged appears to violate the due process guaranteed by the Honduran constitution.

Here's the story: In late June of this year, 375 police officers filed an appeal of the May, 2012 law which Congress passed to clean up the National Police.

The law, decreto 89-2012 [note correction], created the Comisión de Reforma de la Seguridad Pública (Commission for the Reform of Public Security) with broad powers.

It also eliminated Articles 114, 127, 128, 129, 130, 131 y 132 of the Ley Organica, the police charter.  These were the articles that spelled out  due process procedures for firing a police officer of any rank. 

The Sala Constitucional, the five justices of the Honduran Supreme Court that hear constitutional cases, solicits an opinion from the Public Prosecutor about any law subject to challenge.  Luis Rubí filed his opinion, finding the new law unconstitutional. He argued that it denies due process rights to the accused police officers; implicitly presumes officers under investigation guilty; and demands that they prove their innocence.

Rubí said:

There is no doubt that the decreto 89-2012 weakens the rule of law by openly contravening the constitutional disposition and the international order to protect human rights.

The presumption of innocence and the right to due process are guaranteed by the Honduran constitution.

This opinion really should come as no surprise to anyone in Honduras.  Back in February, the Association of Magistrates and Justices of Honduras issued a press release reporting their opinion that the law was unconstitutional, because it suspended basic, constitutionally guaranteed, rights.

The day the law was approved the Public Prosecutor's office said they would begin a review of the law to determine if it violated the constitutional rights of police officers.  Previous attempts to clean up the police had failed for precisely this reason.

Nonetheless, Julieta Castellanos, the Rector of the National Autonomous University, criticized Rubí:

The Public Prosecutor will do harm by opposing a cleanup of the police and I think that there will be sufficient power in society to be able to succeed in the fight that we are all interested to put in order.

Castellanos suggested that Rubí is opposed to cleaning up the police because the same law covers his office as well.

What she doesn't do is provide a counter-argument to his finding, echoing that of the Association of Magistrates and Justices, that the new law violates guarantees of due process.

The Sala Constitucional has not ruled on the case, and the opinion submitted by the Public Prosecutor is not binding on the court, so for now, the process of purifying the police will continue.

Churches

The concept of a church and how to define one is hard for Honduran legislators to grasp.

For most of Honduras' history, you needed to have a formal act of Congress declaring your organization a religious entity to officially be considered a church. Until now, only the Catholic Church had been declared a "church" by Congress.

Instead, most churches in Honduras today operate as the Honduran equivalent of 501(c)(3) civil non-governmental organizations.

Why, exactly, is the Honduran government in the business of deciding what's a real church?

The Honduran constitution establishes Honduras as a secular state with freedom of religion and the separation of church and state. In Article 77, on the topic of religion, it states:

The right to exercise any religion or worship is guaranteed without any precedence (for one over the others) as long as they don't go against the public order. Ministers of the many religions may not hold public office, nor promote political materials, even by invoking religious principles or values as a means to that end.

Honduras has signed international treaties relevant to religious freedom, such as the International Declaration of Human Rights (articles 2, 18 in particular), the Interamerican Democratic Letter (article 9), and the American Convention on Human Rights (article 12).

The Honduran Penal Code enshrines the right of religious freedom by making it a crime to interfere with someone's religion (articles 210-213).

Honduran law also addresses the separation of church and state. The Law of Political Organizations imagines that political entities should be divorced from subordination to or dependency on ministers of any religion or sect. Political parties are prohibited from using religious symbols (article 80). It is illegal to tell someone to join or leave a political party for religious beliefs or reasons (article 104).

The treaties, constitution, and law are pretty clear. All religions are permissible; church and state are separate; and no religion should be favored.

But in practice, Honduras favors two religious groups in particular in its government. The Catholic Church and the Confraternity of Evangelical Churches are asked for input by all government commissions. They hold reserved seats in some government commissions, involvement not extended to other religions. By having a position on the nominating committee they influence the selection of candidates for the Supreme Court.

That existing favoritism and involvement of these two church bodies makes it not particularly surprising that Congress in 2010 passed the Ley Marco de la Íglesia Evangelica de Honduras (decreto 185-2010) to give a blanket declaration of juridical personhood to any church that was a member of the Confraternity of Evangelical Churches.

Passage of this law was set against a background of threats by Africo Madrid, Interior Minister, to review every NGO in the country and deny many of them NGO status, particularly religious ones that he felt were "fringe". The law transformed evangelical churches from NGOs with a religious and charitable mission, to churches with juridical personhood, no longer NGOs, no longer under threat from the particular prejudices of one government minister.

Article 2 of the law says that an Evangelical Church bases its actions in the teachings of Jesus Christ and the sacred writings of the Bible. Article 3 shares with us the values of an Evangelical Church:

1. Respect for life and the gift of God, his preservation and dignification.
2. Integrity based on truth, sincerity, rectitude and compromise.
3. Unity, based in the love of God and one's fellow mankind in total respect of their denominations and doctrinal convictions.
4. Fidelity to the eternal principles contained in the word of God and the Church and the body of Christ.
5. The family as the basis of the church, Society, and the Nation; its integration, harmony, solidarity and stability.
6. Social responsibility, as the human being is indivisible, requires material and spiritual solidarity, giving it dignified housing, food, clothing, health and basic education.
7. Sociopolitical responsibility, the church submits itself to authority, respecting the law, because there is no authority except on the part of God and those that have it, have been established by God.
8. Only god is just and has permitted that people exercise justice to punish and instill fear of those that do bad and not of those who do good, as a path to achieve peace, security, and the prosperity of the Nation.
9. Excellence: all the actions of the Evangelical Church of Honduras are done as if for God, characterized by searching and finding the best results for people and the Country, optimizing with wisdom the resources of the faithful, and
10. Leadership: the Evangelical Church of Honduras promotes and makes clear the wise and good administration of all of the assets and talents which God has placed under his administration, along with the spiritual and material resources.

See the problem? Its not that all these principles are bad; any religion might conceivably adopt them, although we find the claim of divine authority for the political authorities (point 7) somewhat disturbing for a secular state.

But the biggest problem is that Congress, in this law, is making these principles of church behavior into legal norms. Congress was never granted the power to codify the religious beliefs of its citizens. This violates Article 77 of the constitution; it is government establishment of religion, pure and simple.

And of course, there is the glaring fact that the law restricts the definition of evangelical church to those that adhere to these beliefs and practices and are members of a specific organization, the Confraternity of Evangelical Churches. Remember that in the background Africo Madrid was threatening to remove the NGO status of religious NGOs he felt were "fringe": these were not members of the Confraternity.

The Confraternity, a constellation of evangelical churches in Honduras, does not represent all evangelical churches. There are evangelical churches that don't belong to the Confraternity either because they don't want to, or they don't share some of the required beliefs for membership.What happens with this law: are they suddenly not evangelical churches? Congress has established a religion that includes some and excludes others.

Article 6 gives the Confraternity the sole right to represent the evangelical church before the government and to communicate with the government. Article 7 says that to convert an existing organization from a civil NGO to a religious organization, the Evangelical Confraternity of Honduras must petition the Interior Minister (Africo Madrid, remember) to change their status.

Article 8 says the Evangelical Confraternity can exclude any organization that violates the norms included in this law, as well as its own regulations. By membership in the Confraternity, churches get exoneration from all taxes and surcharges, including the free importation of goods and services (Article 4, clause 11).

Any church that calls itself evangelical must get the permission of the Evangelical Confraternity to call itself "evangelical" whether it wants to be an NGO or considered a "church", just as a church needs the permission of the Catholic church to call itself "catholic".

It is implicit in the text of Article 7 that evangelical organizations should associate with the Evangelical Confraternity. It's only through petitions from the Confraternity that they may convert themselves from civil to religious legal entities. This probably violates the legal right to free association.

Should a government be able to set up a particular organization as the sole way to petition or communicate with the government and government officials?

It's not particularly surprising that the Sala Constitucional of the Supreme Court found the law unconstitutional. It was challenged by evangelical churches that were not part of the Confraternity, either because they did not want to be members or because of their beliefs. The Public Prosecutor filed a report with the Court finding the law unconstitutional, and the Sala Constitucional of the Supreme Court concurred.

So now pressure is being exerted by both the leadership of Congress, and Porfirio Lobo Sosa for the full Supreme Court to reverse the decision of the Sala Constitucional.

Here's to the constitutional separation of church and state and the protection of religious freedom in Honduras today.

Cat and Mouse With the Supreme Court

There's a cat and mouse game going on in Honduras between the Executive Branch and the Legislative Branch on one side, and the Supreme Court on the other.

The Executive and Legislative branches have teamed up to exert political pressure on the Court to reverse several of its findings of recent Honduran law.

That the Supreme Court is political should surprise no one. As we wrote in an earlier post, Heather Berkman's scholarly article on the subject makes it abundantly clear how politicized the judiciary is.

This is also manifest in the analysis of the Initiative For Peacebuilding of the European Union. Their Reform Without Ownership study in 2010 detailed the problems with the existing justice system in Honduras and how the International community could constructively engage with the current Honduran government to reform it.

Author Julia Schüneman wrote (p. 10):

An efficient justice system requires adequate resources, personnel selected based on merit, adequate structures and procedures to deliver services, sufficient intra-institutional coordination and a minimum of political interference. Honduras’ justice system does not fulfill these criteria.

Honduras’ judicial system is extremely politicized and not transparent. Its independence is severely undermined by pressure from the executive and the two main political parties.... The highest judicial instances are divided along partisan lines. There is strong political interference in the selection of judges for the Supreme Court (and other judges), with each administration changing a significant number of judges according to political preferences and bargaining over judge positions as “compensation” for electoral favours.

The recent history of governmental proposals to somehow stop the Supreme Court from making decisions the Executive and Legislative branches don't like exposes this politicization at its worst.

The Supreme Court decision on the Ley de Seguridad Poblacional is what concerns Honduran politicians the most. That law, passed in April of 2011, introduced a security tax retroactive to January 1 of that year. At stake is a lot of money already collected and sitting in the treasury.

The Honduran constitution (Article 96) is very clear that backdating of laws is illegal except in carefully defined cases. The Consejo Hondureño de Empresa Privada (COHEP) appealed the constitutionality of the law with the Supreme Court.

On January 31, 2012 the five justices of the Sala Constitutional initially found the law unconstitutional. The government appealed the decision and is awaiting the ruling of the full court's fifteen justices.

In the meantime, Lobo Sosa and Juan Orlando Hernandez are using public declarations to try and pressure the court to reverse the previous finding.

Marvin Ponce (Vice President of Congress) commented:

The security tax is the prized child of Pepe Lobo and Juan Orlando Hernandez to be able to take money and look for a solution to the problems of the country.

Because of this, Ponce tells us, Juan Orlando Hernandez has had Congress draft a law for a Constitutional Court which would be above the Supreme Court. Ponce continued:

The technicians of Congress are on this subject. There's a text written to present to the full [Congress] by a legislator as a law and we are working with it now.

Congressman Oswaldo Ramos Soto crafted the law, which would create the new Constitutional Court.

Juan Orlando Hernandez, head of Congress, went further, essentially putting the Supreme Court on notice not to make decisions against his desired legislation:

We are preoccupied because there has circulated a story that the Supreme Court wants to declare the security tax unconstitutional; this would be a terrible blow to the country in terms of the fight against delinquency. They also say that they wish to declare unconstitutional the last decree which is about the cleanup of the police, and that seems serious to us, also the model cities. I hope that these are nothing more than rumors because the country needs to move forward.

Rigoberto Chang Castillo, Secretary of Congress, assured La Tribuna that Congress has the authority to create an institution to watch over the Supreme Court:

Yes, we can, remember that when we approved the reform to the Ley de Seguridad Publica, we placed in it the creation of an institution that would supervise judges and magistrates.

At the same time, Lobo Sosa has been talking about how he'll appoint a commission of jurists to review the legal determinations of the Supreme Court to see if they're based in law.

"If we don't like your rulings, we'll supersede you" is what Lobo Sosa and Juan Orlando Hernandez are saying.

Now to see if the Supreme Court yields to the political pressure...

Separation of Powers 2 (the sequel)

We wrote before how Porfirio Lobo Sosa doesn't understand the Honduran Constitution's separation of powers.

Today he made that even clearer: he said that he would be forming a commission of jurists to examine whether the recent decisions by the Supreme Court were based in the law, saying

"The only [state] power without anything over it is the Judicial power; whatever they do or decide is the last recourse, which doesn't seem fair to me in the balance of power".

Yes, the Judicial branch is the ultimate arbiter of the law under the Honduran constitution, just as it is under the US constitution.

Apparently that's news to Lobo Sosa, and he knows what he thinks he can do about it:

"There are things that are not fair, them perhaps it is adhering to the Constitution, but I have the right as well to put in place jurists who will analyze for me if the decision of [the Supreme Court] really adheres to the Constitution of the Republic".

The only saving grace here is that Lobo Sosa isn't saying what he will do after his selected commission reports on their opinion of the Supreme Court's recent opinions.

There is no question the Honduran judicial system, including the Supreme Court, is politicized. We've blogged about the problems with the selection process for the court before. Heather Berkman's scholarly article on the subject provides a good analysis.

But the problem is not that the Judicial Branch has no oversight; the problem is in how the justices are selected for the Supreme Court. The problem is that the judicial system is partitioned as "spoils" by the two major political parties. The process is heavily politicized.

The selection process is spelled out in Article 311 and 312 of the Honduran constitution. Nominations are made by a commission composed of seven members:

(1) one Supreme Court justice, elected by 2/3 of the justices on the Supreme Court
(2) one lawyer, from the Lawyer's Union, elected by the assembly.
(3) The Human Rights Commissioner
(4) one representative from the Honduran Council of Private Business (Consejo Hondureño de la Empresa Privada (COHEP)) elected in assembly
(5) one representative of the Law Professors, election run by the National Autonomous University
(6) one representative of Civil Society
(7) one representative of the Workers Unions

The law that governs the operation of this group is Decreto 140-2001.

It calls for these people to get together and propose at least 3 nominations for each of the 15 places in the Supreme Court.

Members of the nominating committee cannot themselves be candidates for the Supreme Court, nor related to a candidate. Each representative comes to the committee meeting with a slate of up to 20 candidates proposed by their organization, which cannot be modified once it is proposed. They then discuss each of the candidates and vote to arrive at a slate of no fewer than 45 total candidates which are then proposed to Congress.

At this point, the nominating committee dissolves itself. Congress winnows the list down to 15 members of the Supreme Court, each appointed to 7 year terms.

In theory, it's a law designed to incorporate the views of a large part, though not all, of Honduran society. Campesinos are not represented, nor are indigenous people, for example.

In practice, it ends up being dominated by the political parties that control government. The Misión de Observación del proceso de selección de los nuevos miembros de la Corte Suprema de Honduras reported in 2008 that there was much pressure by political parties to make bargains on the slate of candidates. They wrote:

They [the Mission] received information from multiple sources about alleged irregularities in the elaboration of certain lists, and information concerning alleged political influence, which if true, only serves to undermine the selection process. The Mission also verified a widespread distrust in the selection process, and more specifically, a belief that the candidate lists are a result of political and powerful interest groups interferences.

The Mission reported that the selection criteria were not transparent, but seemed to be limited to the candidate's educational background and work experience with no attempt to determine the candidate's legal skills, philosophy, ideology, or ethical positions.

In 2008 the Congress voted on slates of candidates from the pool proposed by the selection committee. Two slates were created, sponsored by the two main political parties in Honduras, the Liberal Party and the National Party.

As a result, the current Supreme Court consists of 8 Liberal Party members, and 7 National Party members. Each of the current justices is a member of a political faction in one of the two major parties. For example, Tomas Arita Valle, who issued the legal warrant that precipitated and sanctioned the coup, belongs to the Liberal Party faction headed by former president Carlos Flores Facussé.

So it may not be surprising that Porfirio Lobo Sosa does not understand separation of powers, and the place of the Supreme Court in that separation of powers.

He is certainly free to appoint a panel to give him an opinion about the current crop of Supreme Court decisions with which he disagrees.

And there have been a lot of them. His 1 percent security tax, model cities, and the Evangelical Church Law were all found unconstitutional. It is the last of these that seems to have roused him to greatest outrage.

In response, he said

"They declared the law unconstitutional, a Court, but not God and we'll move forward until that law is valid because it is the law that rules and what the Honduran people want so they can be with God".

The Supreme Court found the Evangelical Church Law unconstitutional because it mandates that to be a legal "church" in Honduras, you must belong to the Evangelical Confraternity of Churches.

Lobo Sosa's legal options to make good on his promise are few. Any revision of the form of government and separation of powers would require major constitutional surgery, which in turn, would need the tacit approval of this Supreme Court, to avoid triggering another constitutional crisis.

Lobo Sosa has, oddly, been citing as support for his position the official Truth and Reconciliation Commission. That group suggested Honduras create a Constitutional Court to review the determinations of the Supreme Court. What is unclear is why they think that will help at all.

How do you select members of the Constitutional Court in order to avoid the politicization of the selection of justices that created the current set of problems with the Supreme Court? Wouldn't it be easier, legislatively and structurally, to change the way Supreme Court justices are selected, rather than trying to shoehorn in an entirely new level of court?

Coincidentally, just when Lobo Sosa is airing his unusual theories of constitutional separation of powers, on Thursday a delegation of German judges left Honduras after reviewing its legal system.

Their conclusion: it's worse than they thought. They indicated that there was impunity and corruption in the judicial system and that the Honduran justices where not up to the fight.

A new Supreme Court will be selected on January 25, 2015. There is no particular reason to think that changes will happen by then that would fix the broken selection system.

Meanwhile, we have the spectacle of a Honduran president, faced with decisions he doesn't like, proposing to institute some sort of ad hoc oversight to decide which decisions he really has to accept.

Anyone who thinks Honduras has a functional form of government should probably pause to consider that.

Democracy 101: Separation of Powers

Porfirio Lobo Sosa doesn't understand the separation of powers embodied in the Honduran constitution.

On January 31 of this year, a Supreme Court decision went against a law he championed, a tax on businesses of one percent of gross income.

The law was approved by Congress on April 24, 2011, published in La Gaceta on May 30, 2011, but supposedly took effect as of January 1, 2011. The Supreme Court declared the law unconstitutional because it was a retroactive change to the tax code, something prohibited by Article 96 of the Honduran constitution.

The law should have been written to take effect on passage, not retroactively. Congress, and Lobo Sosa, should have known that what they proposed was illegal. They ignored it and proposed and approved a patently unconstitutional law.

Enrique Castellón, head of the Honduran IRS equivalent, the Dirección Ejecutiva de Ingresos (DEI), told the press on February 8, 2012, that the government would not refund the money already collected last year, some 800 million lempiras, on the grounds that the judicial decision from the Supreme Court was not retroactive!

But it gets worse.

On Valentine's day, Porfirio Lobo Sosa told La Tribuna that he would seek an international jurisdiction to review the Supreme Court's decisions concerning the Executive Branch. He went on:

If we have to make legal reforms, well we will have to propose them; I hope that the Court will not declare them unconstitutional, because it is the refuge of many now who go there; what recourse do we have as a State to defend ourselves?....For example, the matter of the one percent [tax], has an effect of more than 1,200 million lempiras on the Honduran treasury and so, if the court makes a mistake, well they say it is unappealable.

As if to reiterate how much he doesn't understand the legal framework of his country, he continued:

I think there should be an international legal body where one could go to verify the justice of a decision [by the Supreme Court], we will have to see how to do it, because if we are there, we're snarled up.

So, in Lobo Sosa's mind, there needs to be an international court above the Supreme Court to which he can appeal their rulings on his domestic law making.

It looks like the National Democratic Institute and the International Republican Institute better spend some of their State Department allocated Honduran budget educating Honduran government officials on basic democracy 101 and the contents of their own constitution.

Morning After Pills and Abortion

The Honduran Supreme Court ruled Monday that human life begins at conception.

Deciding on the legality of a decree passed just after the coup, the Court ruled that a law banning the sale of "morning after" pills as emergency contraceptives did not violate the rights of women. It further ruled that the approval of morning after pills (which took place under the Zelaya administration) was against the Honduran penal code (Article 126) which defines abortion as the death of a human being at any time during pregnancy or birth.

There is a glaring problem with this decision: it is based on false claims about how the newly rejected drugs work.

So called "morning after" or emergency contraception pills are drugs which are intended to disrupt ovulation or fertilization to prevent pregnancy. To do this higher doses of the same hormones found in oral contraceptives (estrogens, progestins, or a combination of the two) are taken within 120 hours of intercourse. A thorough review of the English language literature on the mechanism of action of emergency contraceptives carried out in 2010 by Leung, Levine, and Soon, found that

the evidence strongly supports disruption of ovulation as a mechanism of action. The data suggest that emergency contraceptives are unlikely to act by interfering with implantation, although the possibility has not been completely excluded.

A 2010 study of the mechanisms of emergency contraception drugs performed by Gemzell-Danielsson, found that in particular, the emergency contraceptive Levonorgestrel, a progestin, taken within 120 hours of intercourse

acts through an effect on follicular development to delay or inhibit ovulation but has no effect once luteinizing hormone has started to increase. Thereafter, LNG-EC cannot prevent ovulation and it does not prevent fertilization or affect the human fallopian tube. LNG-EC has no effect on endometrial development or function. In an in vitro model, it was demonstrated that LNG did not interfere with blastocyst function or implantation.

In plain language, it does not prevent fertilization or implantation once ovulation occurs.

In 2011, Noé, et al conducted a study of Levonorogesteral where the timing of administration was tied to a woman's ovulation cycle. For those that took LNG-EC in the five days before ovulation, there were no pregnancies. For those that took it on the day of ovulation, the expected number of pregnancies resulted. They concluded:

Our results confirm previous similar studies and demonstrate that LNG-EC does not prevent embryo implantation and therefore cannot be labeled as abortifacient.

These drugs don't prevent implantation; they don't prevent fertilization; they are not abortifacients. In fact, there are no recent studies into the mechanisms of these drugs that support the notion that they have any effect once ovulation takes place.

But tell that to the Honduran Supreme Court and more importantly, the Honduran College of Medicine (Colegio Médico de Honduras) which La Tribuna tells us, "carried out an objective analysis of the effects of these drugs".

Obviously this "objective analysis" didn't include a review of the literature.

The Supreme Court's reasoning went something like this. They cite the WHO definition of pregnancy as beginning at implantation, and abortion as the termination of a pregnancy. The Supreme Court wrote:

As a consequence of that, some authors who promote the use of emergency contraception conclude that there is no interruption in the pregnancy because the embryo has not implanted.

They then use that misdirection to conclude that

to have implantation, there must be a fertilized ovum, because without an embryo, there is no chance of implantation. In consequence, human life initiates at the moment of the union of the sperm and ovum, not at the moment of implantation. To negate this is to go against logic and biological principles.

Notice the deft misdirection. They take it as a given that the emergency contraceptives work by preventing implantation of the fertilized ovum, something that study after study (as we cite above) has demonstrated is not true. The overwhelming consensus of the recent medical literature on the mechanisms by which these drugs prevent pregnancy is that they only do so if the woman has not already ovulated. Once ovulation occurs, even if they take these emergency contraception drugs, the expected number of pregnancies result.

La Tribuna reports that the research paper presented to the court by the Colegio Médico de Honduras concluded counterfactually that Levonorgestrel works by blocking implantation, a statement contradicted by current research.

So Honduran women lose ground on reproductive control because of bad science on the part of the Colegio Médico de Honduras.

That should be illegal.

Papel Sellado By Another Name

New Year's brought a change to another legacy of Spain in Honduras. In 2012, papel sellado, or legal size sheets of paper with tax stamps affixed to them, is no longer valid for legal documents. Instead, Hondurans must get used to two different colors of Papel Especial Notarial, or special notarial paper. Same concept, different implementation.

In a Royal decree of 15 December 1636, the Spanish King, Phillip IV established papel sellado as a royal right and a way of conferring "trustworthiness" on legal documents. While the decree talks of improving the reliability of legal documents and this being a royal right, the income generated from it was equally welcome. Papel sellado sold for 4 or 8 reales. The decree went into effect in Spain in 1637, and papel sellado came to Central America in 1638 and replaced a tradition of writing legal documents on plain paper.

In the Honduran colony, papel sellado was initially scarce, such that many legal documents continued to be written on plain paper. It was not until the 18th century that papel sellado really became widely used in Honduras, and even then, one frequently encounters documents written on plain paper that bear the notation "written on plain paper because we have no papel sellado" in the Archivo General de Centroamerica.

Thus papel sellado formed part of the Spanish colonial legal and bureaucratic system brought forward to the present day.

This year Honduras turned its back on another part of its colonial history.

In 2002, Decree 194-2002 conferred on the Supreme Court the power to provide, administer, and distribute papel sellado of a single type for all legal uses. The court also acquired the right to determine the price of the paper. On November 12, 2011, La Gaceta published the Reglamento para la emisión, adminstración, distribución y uso del papel expecial notarial, issued by the Supreme Court to do away with papel sellado.

The new paper for legal documents is called "special notarial paper" and comes in two colors, green and orange. As I understand it, the green is for wills and contracts, the orange for legal documents with the government. Only approved notaries can buy the green paper, on sale at banks. Approval consists of authorization in writing from either the Comptroller of Notaries or the judiciary. Notaries do not require authorization to buy the orange paper from a bank. Each sheet will sell for a court established price of 20 lempiras.

There is no argument in the rule that special notarial paper is more secure than papel sellado. While the rule calls for the special notarial paper to be printed on "security paper", it does not specify any security requirements. Generally such papers are watermarked, and may incorporate metal or plastic threads, some of which might fluoresce under ultraviolet light. However, paper alone is not enough to provide security. It's far too easy to steal paper. Usually one specifies security features in the printing as well, as is done for currency.

The description of what's printed on the special notary paper provides no security. It is printed without lines. On one side is the seal of the Judiciary, on the other is a drawing of Themis, the Greek representation of divine justice, law, and custom. Below Themis is printed the phrase "Special Notarial Paper", the value, and the four year interval for which it is valid.

Both papel sellado and special notarial paper must be capable of holding 25 double spaced lines of text printed on them while maintaining strict margins.

So the special notarial paper seems to be "because I can", not because it has any benefit for Honduras or Hondurans.

Papel sellado by another name.

Supreme Blessing on the Coup

The coup of 2009, in which Manuel Zelaya was forcibly removed both from office and from the country, was officially blessed in an unappealable decision today by the Honduran Supreme Court.

In a case initially heard by Chief Justice Jorge Rivera Aviles, the Public Prosecutor had sought to charge the former heads of the military Joint Chiefs (Romeo Vasquez Velasquez, Venancio Cervantes, Carlos Antonio Cuéllar, Miguel Ángel García, Luis Javier Prince, and Juan Pablo Rodríguez) with forcibly removing Zelaya from the country, a violation of the Honduran constitution, and with abuse of authority. In their defense, they did not reject that it had happened, but claimed it was out of necessity. Rivera Aviles then dismissed the charges.

The Public Prosecutor then appealed to the Constitutional group of the Supreme Court, which voted 4 to 1 to uphold Rivera Aviles's decision, but because it was not a unanimous decision, the Public Prosecutor could and did appeal it again, this time to the full Supreme Court.

El Heraldo reports that HRN radio reported that the vote was 12 to uphold the original decision, three against.