US Embassy Weighs In on Firing of Justices-- Sort of

Two different legal associations in Honduras, and the US Embassy, have now issued statements about Congress's actions against the Supreme Court.

First up, the Colegio de Abogados de Honduras (CAH) which called Congress's firing of the Supreme Court Justices "an affront to the constitution" and "illegal".  As lawyers are wont to do, they backed it up with legal reasoning that does not need to be recapitulated here.  At the end of their statement was a call to the four lawyers named as replacement justices, all four of whom are members of CAH:

To our colleagues named in substitution for the legally elected, in support of the constitution and the laws we respectfully ask them to abstain from assuming said positions while the Supreme Court of Justice has not ruled on the appeals presented, otherwise you could be complicit [in the violation of constitutional order].

They also called on the Public Prosecutor, through the Constitutional Law branch, to appeal Congress's action to the Supreme Court in pursuit of the rule of law, and called on the Supreme Court to resolve the appeals presented, founded on the constitution and laws.  The CAH has called a meeting on January 21-23 to analyze the constitutional crisis.

Next up, the Asociación de Jueces por la Democracia (AJD), a professional  association of sitting Judges and Magistrates from across Honduras which advocates judicial independence, democratic values, and union recognition.  The AJD condemned Congress's action, saying it was arbitrary, done for political reasons by the Executive and Legislative branches.  Not only was there no investigation into the four justice's administrative actions, but Congress lacked the power to remove them from their posts.  The AJD called for a solution based on the constitution that rectifies the situation.

Finally, after more than a week, the US Embassy released its statement late Friday.  The Honduran press called it a press release, but it does not show up on the Embassy's website in the list of press releases.  Translating back from the Spanish, it seems to have read:

The Government of the United States shares the desire and efforts of Hondurans to strengthen the institutions responsible for public safety and justice, within the framework of the rule of law.

We are aware that concerns have been raised about the possible violation of the independence of the judiciary by the vote in the National Congress of Honduras on 12 December of the current year, to remove and replace four of the judges of the Supreme Court.

We recognize that all three branches of government are starting processes to enhance confidence in the independence and complementarity of each of them. The President has launched a national dialogue between the three branches of government.

The National Congress is considering a bill that would establish measures to resolve disputes that may arise between the branches of government, a need highlighted in the report of the Commission of Truth and Reconciliation. The Supreme Court will decide on the appeal for protection of judges dismissed. It is critical that all actions are carried out in a manner that is transparent and respected by all sectors of society.

This is a carefully worded statement that takes no position on the dispute between the Judicial Branch and the other two branches of government, and merely acknowledges that it is happenening. 

However, the statement immediately softens that recognition with the claim to "recognize that all three branches are starting processes to enhance confidence in the independence and complimentarity of each of them". 

Really?  This seems to be encouragement of the meeting organized by Lobo Sosa of the heads of each branch (Juan Orlando Hernandez, Jorge Rivera Aviles, and Porfirio Lobo Sosa). In our estimation, this was merely an enclave that sought to consolidate Congress's action. 

Either the Embassy is being naive about Rivera Aviles' apparent complicity in the firings of the four justices, or it is tacitly approving of it. 

Despite the Embassy's statement to the contrary, Porfirio Lobo Sosa has not started a national dialogue between the three branches of government.

The US Embassy advocates for the Supreme Court to issue a ruling as the solution. 

The question is, which court? with or without the four de-facto justices? and can Rivera Aviles do it? 

The court, and Congress, are now on their Christmas vacation until after January 3. Chief Justice Rivera Aviles tried unsuccessfully to convene the court on the 13th and 14th before giving up due to a lack of quorum, caused by some of the existing Justices boycotting any session including the four new de-facto justices appointed by Congress. 

There is currently no indication that Rivera Aviles will be able to convene the court to decide on anything, as long as he includes the four justices selected by Congress in what most of the remaining justices consider an illegal action-- an opinion shared by the major organizations of the Honduran legal community but not, it would appear, the US Embassy.

Lobo Sosa "Baffles" Taiwan Government

So says the headline in a story in the Taipei Times, posted date Dec. 26.

We sympathize: he often baffles us, as well.

The Foreign Minister of the Taiwanese government is quoted as saying

The bilateral relationship with Honduras remains “normal” and “solid” and “will not be affected” even if the country moves to develop economic and trade relations with China.

What sparked the comment? A statement published last week on the website of the Honduran Presidential Office. The website Centralamericandata.com published this translation:

President Lobo Sosa confirms intention to open diplomatic relations with China

President Porfirio Lobo Sosa, confirmed on Wednesday that there are clear intentions to open diplomatic relations with the People's Republic of China, a situation that should not affect relations with Taiwan.

The Honduran president said that in the XXI century, we can not continue to think that expanding relations with one nation means being an enemy to another.

The leader believes that China is a super attractive market because it has established itself as a world power in the economic and commercial sphere.

In this regard, he said that Beijing already has investments in Honduras through the Patuca III hydropower project, capital that could be extended to other projects.

That last sentence is all you really need to know. Honduras needs capital investors. China has capital.

The recent announcement really shouldn't come as a surprise. In September, the Honduran government hosted a visit by the China Development Bank.  At the time they received presentations from government ministers about potential projects to invest in Model Cities (now declared illegal), tourism, mining, and energy.

Taiwan has been a major investment partner of Honduras. They were among the few governments represented at Lobo Sosa's inauguration. They contributed Lobo Sosa fulfilling one of his campaign promises. The Taiwan government has publicly stated that it has no objection to the development of trade relations between Honduras and China.

But they thought they had assurances that was all Honduras was contemplating. The Lobo Sosa statement, however, calls for establishing diplomatic ties, and that would mean recognizing the government of mainland China, which is more of a sticking point. As the Taipei Times article puts it

Lin said that Taipei does not consider it acceptable for it’s diplomatic allies to recognize China while maintaining diplomatic ties with Taiwan.

“We don’t think double recognition is acceptable and we don’t think that will happen,” Lin said.

The principle guiding President Ma Ying-jeou’s (馬英九) “flexible diplomacy” has been that Taiwan and China do not attempt to poach each other’s diplomatic allies, Lin said.

According to the timeline offered by the Taipei Times, last week, after hearing that Honduras was thinking of establishing trade ties with China, Taiwan's Foreign Minister "said that while the ministry was not happy to see an ally establish a trade office in China, it did not oppose allies developing economic ties with Beijing".

Two days after that, the website of the Honduran Presidency posted the statement that starts with a call to establish diplomatic relations.

The next day, the ambassador from Taiwan to Honduras, Joseph Kuo, met with Honduras' foreign minister, Arturo Corrales, who said that

the country had yet to finalize a plan to set up a trade office in China and that its ties to Taiwan remain solid and will not be affected by Tegucigalpa forging an economic and trade relationship with Beijing....However, the ministry was unable to explain the discrepancy between Lobo’s statement and the information Kuo received from Corrales and the Honduran presidential office.

All very diplomatic. The article says Kuo expects to meet with Lobo Sosa himself soon to resolve the discrepancies.

But it isn't really just the statement posted on Lobo Sosa's website that is at issue: it is what he said to the press about the topic. On December 20, La Tribuna quoted his responses to reporters at a press conference:

“We are free, we can have have relations with any country in the world”

“it is the right that we Hondurans have to have relations with all the countries of the world, it is a sovereign right, who's going to place conditions on us saying with this one yes, with that one no”.

“I appreciate very much the fondness that Taiwan has for Honduras, but the fact that we are friends, that they give us affection doesn't mean that we cannot take a step for Honduras, to have relations with a country that is the second most developed country in the world today."

"China is the second economy in the world, it is a super attractive market, they have many resources for investment, in fact they have invested here in the Patuca III dam."

“To be a friend with one and for that reason to be an enemy of another, that makes no sense."

Not quite so diplomatic. Lobo Sosa's comments sound like a man in a long-term marriage trying to rationalize starting to date before getting divorced. The use of the term "cariño" and the "super atractivo" characterization of China is simply not the tone a diplomat would want his president to use.

Pity poor Arturo Corrales, stuck with making up to Taiwan for these public statements. Lobo Sosa seems simply not to have exercised any critical judgment before speaking; his "who's going to place conditions on us" and "that makes no sense" statements can be read-- and probably are being read-- as broader criticism of the policy position of the Taiwan government.

Of course, nothing in these statements to the press actually concerns diplomatic relations, specifically. It is only in the official statement on the presidential web site that this term is introduced. Every intemperate statement to the press could have been taken as about setting up trade relations. It is as if the presidential office doesn't know the difference, and added fuel to a fire that could easily have been kept low.

But that would imply that Lobo Sosa doesn't understand what he is doing. And surely that cannot be true. Can it? No wonder the Taiwan government finds him "baffling".
 

Congress Moves to Consolidate Power

The Honduran Congress is on the way to passing legislation that would give it the power it claimed de facto by firing four Supreme Court judges. Except the new law would allow Congress to remove any high government official, elected or appointed. Even the President.

Call it the legal coup law. Or "the Law of Political Judgement".

Let's recap:

Yesterday the Honduran Congress passed a new law governing police human resources procedures, making the confidence tests on all police both mandatory and permanent.

Last week the Honduran Congress removed 4 Supreme Court Justices for ruling that Decreto 5-2012 and Decreto 89-2012 were unconstitutional.  The first of those modified the law guiding the operation of the police, and the second suspended a number of due process parts of the law guiding police operation for a six month period under an emergency declaration.

The Constitutional Branch of the Supreme Court upheld an appeal of these laws brought by police officers and found both sets of changes unconstitutional.  The Constitutional Branch argued that the specific law for police cleanup, Decreto 89-2012, was unconstitutional for three reasons:  it did not grant the police officers the right to self defense; it took away their right to due process; and the use of a polygraph is proscribed under the Honduran Penal Code. 

Fast forward to yesterday, which Reuters reported simply as Congress passing a new police cleansing law. 

In fact, Congress did a lot more than merely make some kind of confidence tests permanent in the changes they passed.  Congress re-introduced the whole concept of due process, allowing police officers who fail the confidence test to defend themselves in an oral hearing before any decision about dismissal is taken.  The new reformed law accommodates the constitutional requirement of due process and gives the accused the right of self-defense.

Or as two of the five major Honduran papers put it: Congress agreed with the Supreme Court that the law needed to protect the constitutional guarantees of the police officers.

Yet this is precisely the position that Congress just (illegally) fired four justices for defending.

Moving forward: Congressman Augusto Cruz Acensio introduced another bill yesterday that would give Congress the power to do what it already did with the Supreme Court Justices: fire them for doing their job. Cruz Asensio is one of Juan Orlando Hernandez's go to guys for interpreting the constitution (badly!).

Called the Law of Political Judgement (!) it would allow Congress to remove any high government official, elected or appointed, including the President.  The bill would allow Congress to dismiss officials for:  not being qualified for the position under the constitution; physical or mental impairment; not fulfilling the job requirements; incompetence; negligence; favoring someone or arbitrariness; decisions incompatible with the laws of the country; immorality; and finally, actions incompatible with the constitution. 

Whew. I thought we'd never get to treason.

The charges will be considered by a Political Judgement commission appointed by Congress which can summon the individual to testify if it wants to, or ask them for written comments on the charges.

It must, in the very next meeting, deliberate and decide if the charges have merit or not.

Not finding merit will not end the investigation, which may continue and hang over the official for as long as the commission wants.  The commission will report its vote back to Congress. 

In its current form, the bill does not seem to specify what Congress does next.

The new law, if passed, would consolidate Congressional power, following Porfirio Lobo Sosa's maxim that the Legislature rules over the other two branches.

Luckily Congress went on vacation for the holidays, so the law won't be considered for a few days. Maybe by then someone will read the Honduran Constitution.

Supreme Court Chief Justice Role in Congressional Purge

We can add Supreme Court Chief Justice Jorge Rivera Aviles to the list of those disdaining the Honduran constitution.

That will come as no surprise to our gentle readers. Rivera Aviles is a politician out for himself, and only secondarily a justice.  We saw that first with his "opinions" (really acts of legal fiction) during the 2009 coup and after.

That he has aligned himself with Juan Orlando Hernandez seems clear.  He met with the president of Congress and the president of Honduras on Saturday, and they all agreed to work together in harmony.  It was just after that meeting that Lobo Sosa explained his ridiculous theory of constitutional law: that the Executive and Judicial branches of government should follow the Legislative branch.

Rivera Aviles claims that he had no foreknowledge of what Juan Orlando Hernandez had planned for his court, nor was he involved in the negotiations.  He claims he supports the dismissed justices. 

But his actions say otherwise.

Both Marvin Ponce, UD party Congressman, and Juan Orlando Hernandez have said that Rivera Aviles was involved in the negotiations to dismiss the four justices.  Ponce also states that Rivera Aviles indicated that he had problems with the four because he didn't agree with many of their rulings.  Hernandez says Rivera Aviles was involved in the selection of the new justices. That seems to be confirmed since newly appointed justice de-facto Elmer Lizardo has said that he was contacted by Rivera Aviles to find out if he would accept the post.

Two of the dismissed justices (Jose Francisco Ruiz and Rosalinda Cruz Sequeira) have spoken out to say that if Rivera Aviles supports them, he hasn't bothered to express it to them in person.  They both said that they had been contacted with personal messages of support from everyone on the court except Rivera Aviles, who only spoke with the press.

Justice Raul Henriquez said that he will not participate in Supreme Court sessions where the [his word] usurpers are present.  He also indicated that the Supreme Court, which can only be called into a plenary session by Rivera Aviles, will probably not meet until after the seasonal judicial vacation.  He called Juan Orlando Hernandez a serious man, someone who wouldn't lie to the public about having met with Rivera Aviles.

You can reach your own conclusion, but to us it is clear based on his actions that Rivera Aviles does not support the dismissed justices; that his words were a smoke screen designed to cloud the political stand he's taken with its long range implications for Honduras's (lack of) constitutional democracy.

Justice Henriquez left it up to Rivera Aviles to clarify his own actions, but closed his interview with these thoughts:

I respectfully call out to the Congressmen; I know there are very good lawyers.  The president of Congress is a lawyer.  He is an intelligent man.  I ask him to talk about it, to think of his family, of his children and what he's doing to them.  Do not do harm to anyone else in the country or the rule of law.  I make a public plea that he ponder what has happened.  We can all fix what has happened and we cannot continue in this situation of anxiety that he is making 8 million Hondurans suffer.

Ducktatorship in Honduras

I believe that we are on the brink of an imminent dictatorship which will be led by the current president of the National Congress.

So says Edmundo Orellana, a lawyer and former Public Prosecutor for Honduras, about Juan Orlando Hernandez's subjugation of the Supreme Court in Honduras.

This story was the part of the front page of the web edition and print edition before El Heraldo removed all links to it from their front web page.

What I see is that the next person to occupy the presidency will be a reincarnation of General Tiburcio Cárias Andino.

Cárias Andino was the longest ruling of Honduras's 20th century dictators, from 1932-1949.

German Leitzelar, a Congressman from the PINU party, agreed with Orellana, and said that Juan Orlando Hernandez has the agenda of being elected president then staying in power for more than the term of four years.

Leitzelar asserted that now that he's subjugated the Supreme Court to the Legislative branch,

All that needs to happen for what Edmundo Orellana said is to reform the article that prohibits re-election [of the president] and if you have succeeded in arranging it properly, you have arranged for a constitutional dictatorship.

According to both Leitzelar and Orellana,  Juan Orlando Hernandez is sure to win the 2013 presidential election because he has all the mechanisms of power behind him.

This is an oblique reference to the blatant fraud in reported vote counts from the ballot boxes in the primary election, where 26 percent of the ballot boxes failed an international audit, and where a post-election audit by the International Institute for Democracy showed Juan Orlando Hernandez with 7% fewer votes in the primary for the National Party than the official total. That would have been enough to make Ricardo Alvarez, Mayor of Tegucigalpa, the winner of the National Party's nomination for president.

Leitzelar said that Juan Orlando Hernandez has the political goal of becoming the leader of the country and is attempting to remove all the obstacles that present themselves to attain that goal.

Among the obstacles was the appeal Ricardo Alvarez brought before the Supreme Court the day before Congress voted to remove four Supreme Court justices.

Alvarez is asking that the Supreme Court order the Election Court to actually count all the votes from the primary election.

But it is not just Juan Orlando Hernandez who delivered this blow to democracy in Honduras; it is Porfirio Lobo Sosa too, who supports the action, even if he didn't actually put Juan Orlando Hernandez up to it.

Lobo Sosa showed his complete disdain for an independent court, as called for in the Honduran constitution, when he told journalists in a Christmas lunch yesterday:

If there is a law there [in review by the court], before issuing an opinion they should at least consult with those who wrote the law, or those who approved the law; I think [what happened to the Supreme Court justices] is totally just because the powers are independent, but complementary.

Lobo Sosa went on to add:

We should understand that here no one is above the people, the first power of the State is the Legislative branch because it is the one elected.

The Honduran Constitution, Article 4, actually specifies that there are three independent and equal  powers, not that the Legislative branch is above the other two.

The PINU party released a statement Saturday that read in part:

These decisions [of the Congress] are characteristic of dictatorial governments that seek control of the democratic institutions through intimidation and abuse of power.

Or as German Leitzelar put it:

When we have an animal that quacks like a duck, has feet like a duck and feathers like a duck, then its a duck

Congress vs. the Supreme Court: The Power Grab

From El Heraldo comes the text of the "report" drafted overnight by Congress on the Constitutional Branch of the Supreme Court:

FIRST. That the Supreme Court was composed by selection processes conducted by the National Congress, under the selection mechanism established in the Constitution of the Republic,  judges and magistrates being invested on January 26, 2009.

SECOND. That the Justices Rosalinda Cruz Sequeira, Jose Francisco Ruiz Gaekel, José Antonio Gutiérrez Navas, Gustavo Enrique Palma and Oscar Fernando Bustillo Chinchilla Banegas were selected for the Constitutional Branch of the court.

THIRD. The Constitutional Branch hears and resolves appeals as provided by law on constitutional justice, one of them being appeals of the constitutionality [of a law].

FOURTH. That this National Congress approved Decree 89-2012 containing the Special Law for Purifying the Police, which ran for a period of six months from the date of its publication in the Official Gazette, which happened on May 25 of 2012 ending its term on 25 November of that year.

FIFTH. Decree 89-2012 containing this special law was challenged on 26 June this year by a group of citizens, the appeal was admitted ordering the corresponding legal proceedings.

SIXTH. That according to the deadlines required by law on constitutional justice, the constitutional challenge is an expedited process because of the high level of interest it has for society to define in legal terms the constitutionality of the provision in question.

SEVENTH. It is widely and publicly known that that constitutional complaint was resolved by the Constitutional Branch on 27 November this year, when the decree 89-2012 was no longer in effect.

EIGHTH. That the complementarity of state powers specified in Article Four of the Constitution be understood or interpreted as the unit of criteria that should exist between the powers about state policies, which must respond to the national interest or common good. Public safety, as state policy, is a responsibility divided between the three powers in the context of their constitutional powers.

We see that things go off the rails here in the eighth paragraph. There is a long standing dispute between Congress and the Supreme Court in Honduras over who has the right to interpret the constitution.  Congress believes it is the sole branch of government that can interpret the constitution, and in 1999 amended article 218, paragraph 9 to give themselves exclusive power to interpret the constitution (also embodied in article 205 paragraph 10).  However, in May, 2003 the Supreme Court ruled that the changes to article 218 were unconstitutional, giving itself the power of judicial review of all interpretations of the Constitution.  Its ruling also invalidated article 205 paragraph 10. 

In response, Congress, at the time headed by Porfirio Lobo Sosa, considered passing legislation permitting them to remove a sitting Supreme Court Justice.  Instead, Congress, in a fit of pique, refuses to permit that decision to be published in the official gazette, a step supposed to be necessary to make the decision legal and final. (There are legal opinions that hold that the decision is legal without being published; Congressional decrees must be published, so Congress is holding the court to its requirements.)

So who has the authority to interpret the constitution remains a point of contention between the Court and Congress, that has resulted in both making claims of being the arbiter. 

In any comparable model of separation of powers, Congress, of course, cannot be the final interpreter of the constitutionality of the laws it proposes itself.

In paragraph eight of the "report" that led to the firing of justices, Congress is asserting a right which the Court says it does not have. 

Presumably Porfirio Lobo Sosa knew in 2003 that Congress did not have the authority to remove a sitting Supreme Court justice; otherwise he would not have thought he needed to introduce legislation to give Congress that power. 

No legislation has been passed in the meantime giving Congress that authority.

Having asserted this contested authority, the congressional report goes on to make what we presume Congress thinks is the review of "administrative" actions they claim guided the firings:

NINTH. In seeking to strengthen the National Police and give the Honduran people higher levels of security, the Executive Branch  and Legislature have made diverse ​​efforts, one of which is the process of implementing a reliable, expeditious and feasible method to purge the National Police as the body responsible in its various branches, to prevent, investigate and combat crime, to whose purpose and aim was oriented decree No. 89-2012.

TENTH. The Constitutional Chamber, in a four to one vote, with the dissenting opinion of Justice Oscar Fernando Chinchilla Banegas, decided to grant the appellants' appeal despite it being full knowledge of the members of that Board that the contested regulation was not in effect when issuing the resolution.

ELEVEN. The [finding of] unconstitutionality requires as a prerequisite that the challenged provision is in effect and the main effect is granted when the action is the repeal of that Act.

Here, Congress complains that the Constitutional Branch of the Supreme Court acted after the law had expired. They assert in paragraph eleven that a law must be in effect to be found unconstitutional. 

But that's not actually the case under Honduran Constitutional law. 

The Ley sobre Justicia Constitucional says that an appeal cannot be brought if there is no remedy possible under the law (Article 46, paragraph 5) or if the effects of the law have ceased (it is expired, paragraph 6).  These criteria apply to the admissibility of the appeal, and at the time the case was admitted, the law was in effect, and there was a legal remedy.

In a case that can be considered comparable in the United States, which has similar rules, the US Supreme Court ruled in 1964 that the 1798 Sedition Act, which expired in 1801, was unconstitutional.

TWELFTH. The decision issued by the Constitutional Branch, in our judgement, is not consistent with the security policy implemented by legislative and executive powers and leads to serious damage to the state because it means a setback in the progress made in the fight against crime and exposes the security of people and their property, leaving the State open to the possibility of expense of lawsuits by members of the National Police who have been separated pursuant to the Decree.

This is where Congress treads into reviewing the judicial behavior of the court, not its administrative actions, acting outside the Constitution and law of Honduras. 

The consistency of a decision with the security policy of a government is not a criterion for review of administration; it is a review of the judicial action.  This is pure politics and is Congress overreaching its powers and ignoring the constitution just as it did in 2009, weakening democracy even further in Honduras. 

This special [Congressional] commission in executing the mandate authorized by the National Congress supported by article 205, numbers 20 and 21 of the constitution of the Republic, recommend to this power of state that it analyze and evaluate the above events in their totality as put forth in the present report and proceed according to the criteria of this august body.

Given in the city of Tegucigalpa, municipality of the Central District, on the 12th day of the month of December of 2012.

Special Commission:
Rigoberto Chang Castillo
José Tomas Zambrano
Mario Alonso Pérez
Armando Calidonio
Marvin Ponce Sauceda
Orle Aníbal Solís

Not signing:
Olman Maldonado
Samuel Martínez

Congress did yesterday what it threatened to do in 2003 with the judiciary, and what it did do in 2009 with the executive branch: it grabbed power, damaging the rule of law and separation of powers in Honduras.

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.