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.

Another Questionable Power Deal?

On February 12 Emil Hawit, the head of the National Electric Company (ENEE in Spanish), and Porfirio Lobo Sosa signed a letter of intent with the Spanish company Isofotón, to construct a 50 megawatt photovoltaic power station in Honduras.

The powerplant is supposed to be expandable to 150 megawatts.  The investment needed to make this happen is estimated at $200 million dollars.  The location of the proposed power plant was not announced, but is said by the press to be somewhere in the south of the country in Choluteca.  Hawitt told El Heraldo

 "they've been working on locating the right place and gave me the required information in meetings held at ENEE."

Juan Orlando Hernandez told Congress that an important agreement had been signed for the construction of a solar power plant in the south of the country as part of the reborn model cities initiative.

Hmm...model cities initiative in Choluteca.  That should sound familiar to our readers.  Choluteca is one of the three locations mentioned in every discussion of model cities in Honduras.

Isofotón is a privately owned company and as such releases no financial information.  The Affirma Business Group owns 80 percent, and a Korean company called TOPTEC owns the other 20 percent.  TOPTEC, a specialist in industrial automation, reportedly already has an office in Honduras.

But Isofotón is in financial hot water.  According to PV Magazine, which covers photovoltaic markets, it is contemplating bankruptcy filings.  It has told Spanish government officials that it has begun negotiations to refinance its debt.  A Madrid law firm has set up a web page soliciting Isofotón's creditors to represent their interests in insolvency proceedings against Isofotón.

In 2009, Isofotón's sales dropped 83%.  It had three different CEOs in less than a year.  Then in 2010 it was acquired by Affirma Energy Engineering and TOPTEC.  Its profits have dropped from a high of 10 million euros to less than 5 million this year.  Meanwhile in Spain Isofotón has responded to three days of protests by its employees threatened with layoffs by announcing that on March 5 it will release the terms under which it will lay off 380 of its 600 Spanish employees.

It is currently building a manufacturing plant in Toledo, Ohio, scheduled to open in July, and in February partnered with China National to acquire minority share in Tianjin Lishen Battery Co. to build solar panels in China.  At the same time as Isofotón announced the Honduras deal, it announced a new partnership to build a photovoltaic manufacturing line and polysilicon plant in Kazakhstan.

Isfotón CEO Angel Luis Serrano told Bloomberg:

We want to increase manufacturing capacity and that will happen in the United States, China and Latin America rather than in our plant in Spain.

Its Latin American presence is limited. In addition to Honduras, Isofotón signed a memorandum of understanding with the government of the state of Yucatan in Mexico for a 150 megawatt photovoltaic generation plant to be built starting in 2014.

As with other proposed investments in power generation in Honduras, this deal seems rocky from the start. Where will this $200 million investment in Honduras come from?

Reading between the lines, Isofotón is depending on the Honduran government to act as intermediary and connect it with either governmental, NGO, or private money interested in actually investing in the project.  It does not have access to the funding to build the plant on its own. We aren't quite in the position of concluding this is another questionable power deal-- but we certainly can raise the question: is this another deal doomed to fail?

Please Buy My Bonds.....

Honduras is broke.

It can't pay government employees, contractors, or suppliers.  Its not unusual for teachers to go six months between paychecks under Porfirio Lobo Sosa.  Road construction has stopped again due to government debts to the construction companies.  It stopped paying the IHSS, the government health provider, the fees it collected from government employees to pay for their health care, prompting IHSS to threaten to cut off government employees.

So what does a bankrupt government do?

Honduras is now seeking to privately place over $750 million dollars in bonds.  In that private placement, it is using Barclays and Deutsche Bank as its agents.  These two banking firms have been hired by the government of Honduras to set up meetings with potential investors.  Meetings have now been set up in London (March 4), New York (March 6), Boston (March 6) and Los Angeles (March 7).

But there's a last minute hitch. Congress, which had to vote to allow the issuance of these bonds, changed the term from 8 years to 10 years.  This increases the amount the government of Honduras will have to pay out to investors by prolonging interest payments for two more years.

If that wasn't enough, both Moody's and Standard and Poor's dropped Honduras's bond rating this week because of what they called the risk of investing in a country where there the government cannot pay its existing debts.  Moody's also changed their outlook from "stable" to "negative".  This in turn will raise the interest rate that Honduras will have to pay on the bonds.  Moody's indicated that the downgrade was caused by

a worsening in the external finances of the country's economy, reflected in an increase of the deficit which is only partially covered by foreign direct investment.

The public debt in Honduras, according to Moody's, is about 35% of its gross domestic product, which is moderate. 

But that is not the whole story. Because of the temporary cessation of international funding under the de facto regime that ruled in 2009 following the June coup d'etat, the country had to rely on internal credit markets, which were costlier, raising the government's debt payment burden.  Debt service (principal and interest payments) was about 10% of the budget last year, up from 3% of the budget in 2008.  Much of this increase is due to the debt shift from external to internal credit markets under the seven month de facto regime.  Both Moody's and Standard and Poor's cited the increased costs from using internal credit markets in their downgrades.

So off to market with $750 million dollars in bonds with a newly downgraded credit rating and an extended term of payment, just a week before the private placement meetings kick off in Europe and North America. Not the kind of bargaining position anyone would like to be in.

Foster Tilapia, Kill Lake Yojoa

 Lake Yojoa is an amazing, beautiful natural wonder located on the road between Honduras' two largest cities, San Pedro Sula and Tegucigalpa. Located in the midst of mountain peaks, with hundreds of species of birds reported, it has long been a destination for Hondurans traveling the road, who stop at roadside fish restaurants. The name on the menu, if not the fish on the plate, was always bass. The lake was stocked with black bass back in the 1960s by the Tela Railroad Company, sparking a sport fishing industry that attracted fishermen from all over the world, especially the United States.

But Lake Yojoa has not fared well from the Honduran government.

A recent decision by the Dirección General de Pesca y Acuicultura, DIGEPESCA, to add 500,000 minnows of Tilapia to Lake Yojoa is among the most stupid and damaging things that could possibly be done to the lake. DIGEPESCA had a choice of any number of fish varieties to add to the lake. They picked a terrible, environmentally destructive fish.

Tilapia already exist in the lake. Tilapia were supposed to be farmed on the lake edge and in streams, but escaped into the lake, overpopulating it, reducing the oxygen available.

The black bass population decreased, as did the size of bass remaining in the lake, decimating the sport fishing industry and making it difficult for the Lake Yojoa area restaurants to obtain the famous black bass that drew in the crowds. 

No one comes to eat fried tilapia

Black bass, although also introduced, were not destructive of the lake environment the way tilapia are. Studies in 2008 found that tilapia farms were the major cause of pollution of the lake.  In particular the fish feces was found to promote algae growth. It also makes the lake smell bad. 

Today the lake is full of algae, a direct result of tilapia excrement, and red and black tilapia in abundance. To this overpopulated lake, DIGEPESCA will add 500,000 minnows of tilapia. 

The good news is that these will be devoured by the existing fish so in effect, DIGEPESCA will be supplying dinner for the existing fish supply, not introducing a new commercial fish.

In 2008 Donard Reyes condemned the government for fostering the destructive shift to tilapia:

The government has weighed in a balance, we can have the beauty of lake Yojoa or we can export tilapia, because undoubtedly, the cages that produce the tilapia, generate a good economic return for the state.

Black bass, and the international fisherman who prized them, are not the only victims of bad decision-making here.

The algae, low water, water hyacinths, and low oxygenation has greatly diminished the diversity of species of birds and animals found in and around the lake.

SERNA, the ministry responsible for the environment was trying in 2010 to restore some balance to the lake by removing water hyacinths and restricting agricultural runoff into the lake.

There was even talk of removing the existing tilapia farms in the lake to try and reduce the contaminants.

DIGPESCA, however, belongs to the Secretaria de Agricultura y Ganado, not SERNA, and appears to be unconcerned about working against another minisry. 

Nor is there any concern apparent about the impact on the work of Hondulago and Amuprolago, NGOs working to provide water treatment for communities dumping wastewater into the lake.

So much for the tourism industry around the lake.  It, like the lake, will die of government stupidity.

Silencing the Opposition

As part of a set of legal reforms to the criminal code, the Honduran Congress has passed a new law directed at members of the media that "incite hate or attack against ideological groups, sexes, or genders".  This new law is in addition to the existing libel/slander laws in Honduras.  The new penal code contains a revision to Article 321 which reportedly now reads:

To those who publicly, or through public communications media incite discrimination, hate, contempt, persecution, or any form of violence or attack against a person, group, association, foundations, societies, corporations, NGOs, for any of the causes enumerated above, is imposed a file of 3 to 5 years in prison and a fine of 500,000 - 300,000 lempiras.

The punishment is applied to the person who makes the statement, not the media itself.  It can be applied to anyone who violates the provision while performing their professional, sales, or business activities, or anyone doing so while in public service.

That breadth of coverage should give a reader pause. Where are the limits of this law?

There are already indications about where it comes from that should warn us to be cautious about celebrating enhanced legal protection against speech. The head of the Honduran Congress, Juan Orlando Hernandez, said of the new law:

The important thing is to have as a starting point respect for the dignity of the person, which is a fundamental principle of the international human rights system ...so now I can proceed against those who call me a Lenca Indian or Juan Tortilla.

If the new law is used as as suggested, it could silence dissent as illegal disrespect for the "dignity" of Honduran politicians-- like Juan Orlando Hernandez. 

As commenter "Amargada" (embittered) put it:

What a disaster.  Instead of concentrating on the crime (killing women) they had the time to intimidate and place fines on the media who have the job of informing the country of all that passes in the corrupt country of the wonders of Don Pepe Lobo.

Enough said.

Honduran Government vs. Freedom of the Press

Porfirio Lobo Sosa neither understands, nor likes, freedom of the press. He laments the fact that the Honduran press can print things that he thinks are not true, and threatens publishers for not supporting government policies.

Stories demonstrating this are not uncommon. On February 8, La Prensa published an account, headlined "President Lobo returns to threatening the media of communication", quoting Lobo Sosa complaining that newspapers shouldn't display images of violence because they affect young people:

"I don't know how Ana Pineda has not entered a complaint with the UN or before whoever it should be, you know the damage that the media of communication does to children, some of them in their front page display the violence".

Back in December, Lobo Sosa personalized his attack, decrying the publisher of two Honduran daily newspapers, La Prensa and El Heraldo, Jorge Canahuati, for allegedly opposing his police purification campaign, because they covered the rejection of the law by justices of the Supreme Court (later removed in a legally dubious way by Congress).

In February Lobo Sosa again singled out the same two papers, this time for criticizing his lack of progress against the level of fatal violence in the country:

Here we have two newspapers that greet me every day, what they forget is that although the days are passing by rapidly, they will never make me bend, I am going to impose order in Honduras, you can be sure.

We make no claim that the Honduran press is exceptionally reliable, or lacking in bias. But Lobo Sosa wants to stop the press from doing anything that makes his government uncomfortable, even though part of the role of a free press is just that: making the powerful uncomfortable.

Lobo Sosa's government has now developed a proposal for a new Ley Marco de Telecomunicaciones (Telecommunications Law).  As La Prensa reports, the proposed law would allow the government to close media outlets, and would introduce an unprecedented censorship body.

The target is broadcast media, radio and television, whose ownership overlaps with the print media against whom Lobo Sosa has railed, but which are more easily subject to government control because they are dependent on licensing of the broadcast spectrum.

At the end of last week, press reports on proposed reforms presented to Lobo Sosa by CONATEL (Comisión Nacional de Telecomunicaciones) said the new law would

seek to regulate the granting of radio and television frequencies and to create mechanisms to censor radio, television, and print media. The proposal has been based on a proposal presented by the non-governmental organization Comité por la Libre Expresión (C-Libre), whose content turned out to be more injurious than the Government's proposal for the regulation of media, since it even spoke of Committees of Censorship for radio and television news programs...

 C-Libre is a consortium formed in June 2001, with a stated mission to promote freedom of expression and freedom of the press in Honduras. It had previously made its proposed telecommunications law revisions available on its website. While much of their proposal has to do with ensuring access to broadcast spectrum by different sectors of society (including a proposal to limit ownership of broadcast media to one channel per family), it also included a passage that seems intended to respond to Lobo Sosa's critiques of the media: a call for a national council for the regulation of ethics in communications.

The new body they proposed would oversee programming to assure that it conforms to morals, to avoid what C-Libre called the loss of national moral values and identity.  It would have oversight to determine if programming was appropriate for a Honduran audience.  It would be able to make lists of the kind of programming considered damaging to the Honduran population.

While in theory it could  not restrict the rights of the media with respect to guarantees of freedom of religion, ideas, or politics, this provision in C-Libre's proposal was denounced by a representative of the Sociedad Interamericana de Prensa (SIP) in Honduras, Rodolfo Dumas:

“It disturbs us very much when the proposal of C-Libre speaks of a national council of regulation of ethics in communication, that is worrying because we already known that both the Convención Americana [de Derechos Humanos], la Declaración Universal [de Derechos Humanos] and our internal law prohibits advance censorship, and it is an absolute prohibition, This type of article has to be approached with great caution."

He also noted that there even is a section of the proposal that speaks of the need for truth. It demands that the news should be true, which is a term that today many politicians like to use when they refer to these issues, he added, He noted that "there is already a declaration of principles issued by all those related in regard to liberty of expression in which the demands of truthfulness, expedience, and impartiality are incompatible with liberty of expression and liberty of the press, because the concept of truth is ethereal, it is subjective, so to demand the truth, whose truth will it be? The official truth? Your truth or mine?"

On Monday, La Prensa published an analysis comparing the law actually proposed by the Lobo Sosa government to the existing legal code. They found an inserted passage in the first article giving the government the right to regulate the content transmitted for the "protection of the ethical principles and cultural values of society".

What the government can demand is framed entirely in vague and lofty-sounding language, that nonetheless falls into the debatable terrain Dumas noted in the C-Libre model law:

“In regard to the content of transmissions... these should be subjected to the regulations, parameters, policies, dispositions and administrative rulings that for reasons of social interests shall be established in conformity with the law".

In other words: the government can say that you shouldn't broadcast stories about any topic it thinks would be against "social interests".

And if a broadcaster does violate this clause, the new law is ready, having established a new basis for formal sanctions if media "promote lack of respect either for the reputation of someone, or weakening of national security, public order, public health or the fundamental rights and liberties of infancy, childhood, and adolescence.” The fines approved would rise from a maximum of 500,000 lempiras in the present law (about $25,000), to 3% to 5% of the gross income of the enterprise.

Added to the call for a Regulatory Commission on Programming, the new language would put the government in a position to impose its perspective on what programming would be in keeping with government policies and views on ethics and values.

Whatever else that might be, it is not a free press.

But then: Porfirio Lobo Sosa doesn't like a free press. 

When You Stack the Court...

You win.

The special Supreme Court organized from mostly non Supreme Court justices by Chief Justice Jorge Rivera Aviles, unsurprisingly voted 13-2 not to admit the appeal of the Supreme Court justices removed by Congress on December 12, 2012.

We say unsurprisingly because Rivera Aviles hand-picked all but two of the justices on the panel from the lower courts.

The justices who voted to admit the appeal were Raúl Antonio Henríquez, from the Penal branch of the Supreme Court, and Adela Kaffaty, of the Appeals court.

The thirteen who voted against admitting the appeal consisted of Rivera Aviles and his hand picked appeals court judges. Only one sitting Supreme Court justice supported him. But that was all he needed.

Adela Kaffaty (already then an appeals court judge) in 2011 argued in the Interamerican Commission on Human Rights (IACHR) for the de facto government of Honduras. She urged the IACHR to not admit a human rights appeal from four magistrates dismissed by Rivera Aviles in 2009, under the de facto regime, for speaking out against the coup.  She told the IACHR that to admit the appeal would "convert the IACHR into a political organization and would contribute to discrediting Honduras".

There is a case to be made that discrediting Honduras internationally was promoted by actions like the removal of those magistrates, the involvement of the Rivera Aviles court in post-facto rationalization of the coup, and the series of confrontations that led to the spectacle of a not-so-Supreme Court refusing to reinstate four justices removed because Congress didn't like their decision.

It isn't just our opinion that this is bad for government in Honduras.

Before the latest decision continuing the dismantling of the judicial branch had been announced, Salvador Nasralla, the Anti-Corruption party candidate for president, said of the judges making the decision:

They think it's a soccer match, but internationally, if today the justices are not returned, Honduras will be considered a dictatorship and that is serious because it removes the rule of law we've boasted about.

Rivera Aviles' court ignored him and decided against the appeal anyway.

Justice Rosalinda Cruz, who was dismissed in December, said of the decision:

It's totally arbitrary, an illegal, unconstitutional decision lacking any legal foundation.

She indicated that the next step would be to seek a reconsideration, but that too is likely to fail.  She noted that they have an expedited path to the international courts once they've exhausted this appeal.

One avenue would be to take a human rights appeal to the IACHR. Maybe Adela Kaffaty would like to testify, this time on the right side?