Appeal Filed

The Bar Association of Anti-Corruption Lawyers in Honduras has brought a legal appeal of Congress's dismissal of four Justices.  Their lawyer said he brought the action because the people who should have, the Public Prosecutor Luis Rubi, and his deputy prosecutors Danelia Ferrera and German Enamorado, had failed to act.  He asked:

Where is Luis Rubi?  Where is Danelia Ferrera?  And where is the prosecutor for human rights (German Enamorado)?

Luis Rubi demurred that he would do nothing until he had a copy of the Congressional findings and the text of the motion which he would then analyze, and act based on his office's findings.  

The Bar Association of Anti-Corruption Lawyers' appeal is based on the law, on the fact that Congress does not have the authority nor was ever granted the right under the constitution of Honduras to remove justices from the Supreme Court.  They wrote that the Congressional resolution separating the four justices violated the Constitution of the republic.

The Four Justices Respond

This afternoon the four justices that Congress voted to dismiss responded with a written statement, which they read.  The four justices, José Antonio Gutiérrez Navas, José Francisco Ruiz Gaekel, Gustavo Enrique Bustillo Palma and Rosalinda Cruz said Congress lacks the authority to remove them from office.  They called the process that Congress used "illegitimate, illegal, and unjust".  The justices said it was clear from the language of the 5 page report submitted by Rigoberto Chang as head of the commission to investigate the justices that the charges were based on their judicial rulings, not their administrative conduct, and that as such, this was a political maneuver.

They defended their rulings, the ones Congress took issue with, as made in accord with legal precepts, the Constitution, treaties and international agreements and the Constitutional Justice Law and that their rulings were made in a reasonable fashion with no pressure from anyone.

They noted that the legal argument that Congress pretended to use to dismiss them had no legal validity.  They point out that in 2011 Congress gave to the Chief Justice the power and right to do all administrative reviews of the court.  Oops.

They said:

Congress violated the principle of separation of powers contained in the Constitution of the Republic and has abruptly burst the jurisdictional function of the Judicial Branch and that has produced a change in the constitutional order because they do no have the authority to do so.

It does no good for our beloved country

They announced that the would resort to the courts for justice because their constitutional rights to due process, to be heard, and to a defense, among other guarantees nationally and internationally recognized, had been violated.

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.

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.