Congress To Censure Supreme Court

Late yesterday evening the Honduran Congress approved a bill that authorizes them to "investigate" the conduct of the four justices of the Constitutional Branch of the Supreme Court that ruled that the Law for the Purification of the Police was unconstitutional.  The motion was presented by National Party Congressman Rodolfo Zelaya, a member of president of Congress, Juan Orlando Hernandez.  Zelaya wrote:

"[I] formally present a motion to appoint a special commission to investigate the effect of the administrative conduct of the judges of the Supreme Court, particularly the Constitutional Branch on all matters relating to its administrative behavior in the area of public safety, complementing the efforts that Congress has done on the Constitution, issuing special laws to give greater security to the citizens.  It should present a detailed report to the plenary [of Congress] and other legal effects."

Zelaya cites Article 205, paragraph 20 as authorizing the investigation.  Article 205 lists the functions of Congress.  Paragraph 20 grants it the power to approve or disapprove of the administrative action of the Executive and Judicial Branches of government.  Notably lacking is the power to investigate the actions of either of the other two branches as they act within their purview, which is what this motion calls for.  Even paragraph 21, which authorizes Congress to appoint commissions to investigate matters of national interest does not contemplate investigating the other branches of government.

Not all of Congress liked the motion.  The head of the Liberal Party, José Alfredo Saavedra said:

This is a bad message both to the nation and internationally, where Congress wants one branch of government to submit to others; this flagrantly violates what is set in the Constitution of the Republic and specifically with the independence of powers.....This is flagrant intimidation against another branch of the government called the Judicial Branch.

German Leitzelar bluntly told Congress that his party, PINU, would not support the law because it was transparently about investigation the court's judicial conduct, not its administrative conduct, and that was improper.
Another Liberal Party Congressman, Wenceslao Lara, recommended that instead of passing the motion, Congress appoint itself better lawyers so that they don't approve such poor quality laws.

Roy Urtecho, attached to the Public Prosecutor's office said that the Congressmen that approved the motion were in danger of commiting the crimes of treason, abuse of authority, and interfering with the operation of a government official.

The [Constitutional] Branch is the final and definitive interpreter of the of the Constitution, and it is the branch which exclusively determines unconstitutionality....In consequence, you should understand that whatever pronouncement, indication, or objection the other branches of government have, on these juridical positions, interference in the exercise of the powers given by the Constitution breaks the constitutional principle of separation of powers."

To approve the review of the conduct of the Judicial branch with respect to things that have nothing to do with the conduct or administrative function [of the Judicial branch] implies opening the door to a kind of political judgement...which is not contemplated in the actual Constitution.

Urtecho goes on to say that such conduct puts Congress at the edge of illegality.

Congress voted 63 - 2 with two abstentions to approve the motion, only half of Congress having been present.  Congress then named a 9 person commission, consisting of 4 National Party members, 2 Liberal Party Members, 1 Christian Democrat, 1 PINU Party member.  German Leitzelar, who was appointed as the PINU party representative, said that 5 of the commission members are supporters of Juan Orlando Hernandez, the National Party presidential candidate for the 2013 elections.  Leitzelar said that he would not be part of the Congressional commission.

The commission will return a motion of censure today.

Honduran President Threatens Supreme Court: Court Fires Back

Porfirio Lobo Sosa is sending little "love messages" to the Supreme Court via twitter, accusing the court of being on the side of criminals.

In a stylish move, he did this by reference to Romans 13:3. For those less familiar with the New Testament than the Honduran president, here's what it says:

For rulers are not a terror to good works, but to evil.  Wilt thou then not be afraid of the power?  do that which is good, and thou shalt have praise of the same....

In case anyone is unclear on the implications, here's what Lobo Sosa tweeted:

Romans 13:3 Why the justices are not there to instill terror in those who do good, but rather those who do bad? Do they want to not fear authority?

Tweeting not being enough to get his way, Lobo Sosa is pushing forward in his quest to get around the Honduran Supreme Court, which has outraged him by ruling preliminarily that his Law of Police Purification was unconstitutional

Lobo Sosa has asked Juan Orlando Hernandez, the president of Congress, to fast-track legislation written by the Executive Branch that would approve Plebiscites and Referenda under a simplified system.  Once that is in place, he says, he will take the question about the purification law directly to the people.

Procedurally, because this would require amendments to various clauses of the Honduran constitution, Lobo Sosa has to have initial passage of the law fast-tracked before Congress adjourns in late December. That would allow time for the law to be voted on a second time in the next session of Congress, as required in the Honduran constitution, before Lobo Sosa leaves office. Juan Orlando Hernandez says it is ready to go next week.

While the text of the law is not public, César Ham, head of the cabinet ministry dealing with agriculture, says the law is all written and ready to go. 

According to Ham, the proposed law would allow recall of Supreme Court Justices by plebiscite or referendum, once it's proven they acted contrary to the interests of the state (Lobo Sosa's preferred standard, rather than acting to safeguard constitutional guarantees).

This would mean that a law sponsored by the Executive Branch would allow for recall of a sitting Supreme Court Justice based on popular vote in a plebiscite or referendum, which can be initiated by Congress, the Executive Branch, or a critical mass of voters.

César Ham already has called on citizens to demonstrate in front of the Supreme Court building to protest the Constitutional Branch's preliminary ruling against the police purification law. He called into question the patriotism of the four justices who decided the police cleanup law was unconstitutional.

In a press release, the Supreme Court reacted by calling on Lobo Sosa to curb his criticisms aimed at the Judicial Branch and respect the separation of powers:

We observe with particular preoccupation the statements made in recent days by both the President of the Republic, Porfirio Lobo, as well as the director of the National Agrarian Institute, César Ham, which constitute a direct threat against the full Supreme Court, and intend to induce this jurisdictional entity should declare without merit the appeal of unconstitutionality interposed against the confidence tests in the Ley de Depuración Policial, because the Executive branch believes that if the Supreme Court does not resolve it this way, we would be acting in favor of the criminals.

The Association of Judges for Democracy also called on Lobo Sosa to cease his attacks and respect the separation of powers.  So did the Catholic church.

And then there's the most surreal moment: the endorsement of Lobo Sosa's position by former President Manuel Zelaya, who explicitly compared the current situation to the Supreme Court's opposition to the "cuata urna", the conflict that triggered the coup of 2009.

Mel isn't the only one seeing echoes of 2009 here: in a rambling reaction to press coverage, Lobo Sosa hinted that there was a conspiracy against him.

Lobo Sosa took objection to El Heraldo's coverage of the court's statement, which included a lesson on Article 4 of the constitution, which enshrines the separation of powers.

Commenting on that, Lobo Sosa announced that the paper's owner, Jorge Canahauti, was part of conspiracy to stage a coup d'etat against him:

There's a conspiracy and I invite you to read El Heraldo and look at La Prensa, read them, that of yesterday and today, the front page, and I'm not disrespecting anyone, I am saying the truth, on the front page, and don't think Don Jorge Canahauti that I don't know who you're meeting with, and with whom you're meeting, I'll only tell you the following:  what you are doing is dangerous for the nation and will generate a problem that we don't already have which we might have.

.....

I will only say the following:  It won't work, it will be seen as very bad.  Why? because in the end, look, over there are the citizens, it is they who will judge, and this question Are they in accord, the people, or not with the police cleanup?  That's where it's going, and nothing will keep this question from the Honduran people; many thanks my friends, and the Congress of the Republic will grab the glory and give the right to the people to be consulted YES or NO, it must follow the plebiscite...if they are in favor or not with the police cleanup.

So what comes next? the full Supreme Court still has to rule on the constitutionality of the law. If Lobo Sosa thought he would intimidate them, that seems to have failed. So his henchman, Juan Orlando Hernandez, will push forward with a law on referenda and plebiscites that is recognizably close to what brought the court and Zelaya into conflict in 2009, explicitly so that Lobo Sosa can get the people to impeach justices who issue rulings he dislikes.

Or, Juan Orlando Hernandez could take the advice of Mel Zelaya and convene a constitutional assembly. Seems like a lot quicker way to rewrite the constitution than the current administration's patchwork of unconstitutional laws.

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.

Final Showdown over the Honduran Institute of Anthropology

It is over a week since we reported that the union of workers employed by the Honduran Institute of Anthropology and History (Instituto Hondureño de Antropología e Historia, or IHAH) was on strike to protest the mismanagement of Virgilio Paredes. In a statement dated November 10, the union notes this is the first time in sixty years that it has taken such a drastic action.

Paredes, we noted, has served as the person in charge of IHAH since being appointed by Myrna Castro, who played the role of head of the secretariat of Culture during the de facto regime ushered in by the June 2009 coup.

Now comes the news from sources in Honduras that they fully expect that a meeting of the Consejo Directivo of the IHAH called for tomorrow will result in the installation of Áfrico Madrid as head of the Consejo, self-designated, "in the name of Lobo".

Áfrico Madrid is the Secretario de Estado en los Despachos de Gobernación y Justicia, a cabinet minister in the government of Porfirio Lobo Sosa. This is the second most powerful cabinet position, after that of external relations.

Virgilio Paredes is a low level bureaucrat with a history of relatively unimportant managerial or consulting positions, now head of a dependency of the Ministry of Culture.

Why would Madrid be mobilized-- apparently at the direct request of the president of Honduras-- to protect Paredes?

Before we answer that question-- and there is, rare for political stories, an answer-- let's start with an update on the controversy.

When the union went on strike, it issued a statement indicting Paredes for his mismanagement. Included was a complaint that he had avoided convening the Consejo Directivo, and thus had impeded the Consejo receiving the report of a special commission looking into his defects as manager.

On November 2, that special commission, composed of three members of the Consejo Directivo, one of them, Doctora Olga Joya, Professor of History at UNAH, a former director of the Institute herself, presented its report.

It is damning.

It upholds the accusations made by the workers of the Institute entirely, concluding that

On the analysis of the documentation provided by both sides it can be inferred that the management by the director was insufficient in many aspects or lacked the required diligence.

In some respects, the commission's report goes further than the complaints by the workers that we previously discussed: it notes that in addition to failing to call meetings of the Consejo Directivo at least monthly, as required by law, Sr. Paredes traveled abroad without permission of the Consejo (in violation of long practice, and they argue, best practice) and has exempted himself from accounting for the costs of these trips. This is the kind of thing normally considered evidence of administrative corruption, not the basis for a defense by the extremely powerful.

More worrisome to us, the commission also found merit in the complaints registered about a failure in carrying out the basic mission of the Institute, to manage, protect, and disseminate information about the cultural patrimony. After interviewing the employees in charge of management of Copan, El Puente, Los Naranjos, and Omoa-- four of the major cultural heritage sites open to the public in the nation-- and the fine anthropology museum in Comayagua, they confirmed through the testimony of those front line employees that Paredes has failed to provide the supplies and funding required for the sites to be properly managed.

The commission cites specific examples. The most egregious: Paredes apparently failed to carry out activities funded to strengthen Lenca traditional artisans, and as a result, had to return almost half a million dollars to a funding agency.

The commission found that Paredes had allowed an agreement to be signed in Copan that violate the fundamental laws governing the management of cultural heritage properties in Honduras. The special commission noted that Paredes had delegated his authority to Señora Erlinda Lanza (whose hiring itself was a subject of complaint, for not following established procedures) to sign the so-called Copan Ruinas 2012 Agreement.

They note "clear arbitrariness and illegalities" in the Copan document, among them the agreement to illegally fire the employee in charge of the Copan archaeological site; changing the law of national patrimony in order to grant to the government of the town direct vote and representation in the Consejo itself (or what seems to be the Consejo, described inaccurately); and a grant of a portion of the income from site visitors to the town, which would, they say, clearly be detrimental to the IHAH.

So now we return to the question we posed above: given that this commission found that Sr. Paredes has indeed failed in his position, why would the authority of the president of the country be mobilized to back him up?

Simple: cronyism.

Or to translate the comments of a Honduran source:

Sr Paredes is  the godson of Pepe (Porfirio Lobo Sosa)... no one in the cabinet is going to move away from the presidential decision to protect him.

What do you give your godchild as a present?

In Honduras, apparently, the entire Cultural Patrimony.

To quote someone calling himself "Zaqueo Alavista" (roughly, Looting Onview), commenting on an article reporting the continuation of the strike in El Heraldo November 5:

In the meeting today there was presented a report about the ominous work of Virgilio Paredes in the IHAH, but Áfrico Madrid threatened everyone with jail if they came to present the said report.

Who is Virgilio Paredes that Africo would make such threats, and who is Africo to go to the extremes of such actions. Why would he defend so much an useless piece of junk?

Whoah, here there should be in play thousands of millions because they are killing themselves to defend a gerentucho (minor league bureaucrat) from an institution of barely 200 employees; they dream of oil, they dream of the treasures from the seabed at Omoa, they dream...

ICOM Honduras Supports Anthropology Union

The attached statement has been widely circulated among international participants in cultural heritage research and practice related to Honduras.

It makes clear that the urgent complaints by the union of the Honduran Institute of Anthropology and History are reactions to a serious threat to the cultural patrimony of Honduras.

ICOMOS of Honduras is the country affiliate of ICOMOS, ICOM in English, the International Council of Museums.

Here's the statement, in full:

ICOMOS Honduras, by this means, publicly states its support for the mission and mandate of the Instituto Hondureño de Antropología e Historia, an entity that for 60 years has dedicated itself to the conservation, protection, investigation and dissemination of the cultural patrimony of Honduras, and whose commitment has merited the recognition of the scientific community at a national and international level.

The ICOMOS Honduras chapter has followed with concern the administration of the present directorship of the IHAH and stands with the justified petitions of its employees in favor of the return to professional leadership and management of the serious task that belongs to the IHAH. At the same time it calls on higher authorities to search for a solution that will respond exclusively to the interests of the cultural patrimony of all Hondurans.

that

Strike for Cultural Heritage!

SITRAIHAH, the union of employees of the Honduran Institute of Anthropology and History, announced yesterday that it is on strike

beginning Tuesday the 31 of october and for an indefinite period or until Virgilio Paredes Trapero, directly responsible for the institutional crisis of IHAH, is removed from his position as Gerente (Director).

Paredes is the controversial director of the key cultural heritage institute whose actions have included, among other things, agreeing to give the town of Copan Ruinas control over archaeological research at the site, and the management of the cultural heritage properties that emerge from that research; diverting financial resources necessary to the survival of the Institute; and engaging the institute's prestige, sponsorship, and resources in a laughable quest for a mythical city, run by a team lacking any of the legal requisites to undertake such work in Honduras.

As part of this strike action, El Heraldo reports, have

"posted themselves this morning at the access gates of museums and installations in the charge of [IHAH] in response to the failure of dialogue with the director, Virgilio Paredes."

Photos accompanying this article show locked gates in the route leading up to the main offices of IHAH in Tegucigalpa, also the site of a museum, and locked gates with posters on the former Presidential Palace, also in Tegucigalpa, today a major historical site and research center.

By law, the union notes, the advisory Council (Consejo Directivo) of the Institute is supposed to meet with at least 4 of its mandated members at least once a month. A circular from the IHAH union (available here as JPG images) states that

Beginning in the period of 2010 through 2012 the absence of sessions owing to the failure to convene them by the secretary of the Consejo Directivo, who is the Gerente of IHAH, has provoked profound damage to the Institution such as the signing of agreements that violate articles 2, 5, and 6 of the Ley Orgánica del Instituto, the total failure of the management, administrative negligence and abuse of authority on the part of the present Gerente, Ing. Virgilio Paredes Trapero.

Paredes was, as is described in many posts available online, appointed during the period of control by the de facto regime that took power in the coup of June 2009. The circumstances of his appointment have been questioned; he does not have the kind of degree called for in legislation governing the IHAH. While his patron, the more notorious Myrna Castro, who took over the power of the Minister of Culture during the de facto regime, moved on when Porfirio Lobo Sosa was inaugurated, Paredes, installed by Castro, has stayed in power.

We have written previously about the concerns raised by the union about Paredes' administrative actions. The new document emphasizes the same points.

The summary conclusion: Paredes is not interested in the survival of IHAH, and in fact wants to take it apart, to see it fail. While the present document is somewhat technical in its complaints, what the union has previously emphasized is a pattern of actions that either directly violate, or at least appear to violate, the law, and undermine the mission of the institute, which is to manage cultural heritage and increase public knowledge of it-- not, as Paredes has sometimes seemed to think, to increase tourism income in the country any way he can.

One new addition to the story in the present statement is the news that, following their previous complaints, a special commission was actually appointed in June of this year, including three members of the Consejo Directivo: UNAH representative, historian and professor Olga Joya, herself a former director of IHAH; and the representatives of COHEP, Jubal Valerio, and of SOPTRAVI Ángel Mariano Vásquez. The statement by the union says their report was not presented to the full Consejo, despite what they describe as numerous requests from the commission members themselves and the union.

The document describes an extraordinary pattern by Paredes of failing or even refusing to be part of meetings ordered by the Minister of Culture, to whom he in theory reports, intended to address the complaints raised. Other information we have received has described Paredes having a network of powerful patrons that give him a degree of impunity.

What will happen next? The union is obviously hoping that the government will act to rid itself of a troublesome bureaucrat who has brought unrest to governance, encouraged disruptive interventions by local politicians in national policy, and has, to say the least, not brought intellectual respectability to the Institute.

Which will win-- power and impunity, or prestige and embarrassment?