The Honduran Congress is responsible for electing a new Supreme Court every 7 years under the Honduran Constitution. Yesterday the National and Liberal parties tried to carry on as they have for the last 34 years, nominating a suite of 8 National Party members, and 7 Liberal Party members. Mauricio Oliva, the president of Congress and a National Party member, then forced the procedure of voting on the entire slate, rather than approving each justice individually. He was certain he had the votes because of the alliance between the crumbling Liberal Party and the ruling National Party. He needed 86 votes. He got 82 (or 84 depending on which Honduran newspaper you read). Congress failed to appoint a new Supreme Court.
But that's only the tip of the iceberg of corruption around the election of this Supreme Court in Honduras. Lets turn to the candidates themselves. Last October, American Bar Association joined the Centro por la Justica y el Derecho Internacional (CEJIL), the Fundacion para el Debido Proceso
(DPLF), and Impunity Watch to form an international oversight committee reviewing the
election of justices in Honduras. They met with the nominating committee and held workshops for them on international standards and best practices for selecting justices. It mostly seems to have been in vain.
The master slate of some 200 candidates was formed by the Nominating committee in a procedure that privileged some institutions, such as the business community, labor unions, and civil society, with making their own nominations. Others candidates self-nominated. The list of 200 candidates filled out questionaires, underwent drug testing, answered questions about affiliation or participation in drug trafficking with a polygraph. Each candidate received a numerical score, and all of this information was supposedly used to winnow the list down to the 45 "best" candidates, if by "best" you include 12 who failed the polygraph test, and some whose legal qualifications are suspect. During the process, the US Embassy in Tegucigalpa twice submitted lists of candidates that it said required more investigation or that should be eliminated outright, supposedly based on an FBI evaluation of candidates.
In the end, the Nominating committee submitted a list of 45 candidates to the Honduran Congress, including candidates that failed the polygraph portion of the test, and those that had numeric scores less than 50%. These are the ones the Nominating Committee said were the "best" candidates, but they refused to make public the selection criteria.
On January 21, the Human Rights Center of the ABA issued a 9 page report on the work of the Nominating committee, saying that it failed to meet international standards for transparency and follow the best practices for the selection of justices. So much for those workshops in October. The ABA said the Nominating committee had made an effort, but had not gone far enough to investigate the candidates, and that the whole process lacked transparency. They pointed out that the "election" of the Nominating committee itself was problematic. They made a long list of suggested improvements to the process.
Once Congress had the list, Mauricio Oliva appointed a review committee of 10 Congress people to review the nominations and recommend a slate of candidates. The committee was composed of members of the 5 political parties which have Congresspeople, with a majority of the positions going to the National and Liberal parties and the supporting Christian Democrats. All committee members were selected by Oliva, not their parties.
Monday started badly for transparency when Congress blocked most of the press corp in Honduras from entering to cover the election of the Supreme Court. Blocked press included Padre Melo of Radio Progreso.
The vote failed because Oliva did nothing to court the opposition party members into supporting the slate of hand picked candidates. He did get 9 votes from opposition party members, but clearly expected more. After the vote, Salvador Nasralla said that only 5 of the 15 candidates were qualified in his opinion. PAC, Libre, and PINU have together called for an open, public vote for the Supreme Court candidates, but Mauricio Oliva has instead imposed a secret vote, using paper ballots rather than the electronic voting system in Congress. Its far easier to manipulate the results of paper ballots, as both the Liberal and National parties have done in the general elections for the last 34 years.
Congress meets again at 4 pm to reportedly reconsider electing the same slate of 15 candidates again, only this time with a secret vote instead of a public one, using paper ballots instead of the electronic voting system installed in Congress.
Tuesday, January 26, 2016
Thursday, January 14, 2016
Honduran Indigenous People Condemn Archaeological Project
We declare that the location of the sacred places of the Muskitia, as
would be Ciudad Blanca, Apalka, Raiti, among others that still have not
been "officially discovered", never have been unknown to the children
of the Muskitia, who have received that knowledge as a form of ancestral
knowledge from our grandparents and so we assure the inviolability of
these sacred places by looters.
The representatives of one of the largest indigenous groups in eastern Honduras have weighed in on the hottest Honduran news story of the new year; and their commentary should be blistering the skin of the President of the country and officials in the government responsible for management of cultural heritage.
The announcement was made by President Juan Orlando Hernández himself: a new expedition was headed to the archaeological site in eastern Honduras which was widely promoted last year as a newly discovered "lost city", supposedly representing an "unknown civilization", and identified with the traditional cultural heritage site of the Pech and Miskito people, called Ciudad Blanca in Spanish.
Hernández himself accompanied the new expedition, whose goal was described as to extract (sustraer) carved stone objects that had been observed on the surface-- a typical pattern for the many sites professionally studied in the region. Among those commenting on the spectacle was the US Ambassador, James Nealon, who professed to be fascinated by the sculptures.
Speaking archaeologically, there is a well-understood history of interpretation of similar objects in sites documented across the region. They have actually been studied since the 18th century, as some of the earliest, if not the earliest, Honduran antiquities exhibited in the British Museum and contemplated by European scholars.
Last year, an international group of scholars (including the authors of this blog) raised concerns about the outdated presentation of archaeology in the original expedition. An open letter to the sponsor and original publisher of the reports stressed that the area is not abandoned, but is actually the territory of indigenous people who surely include the descendants of the site's builders. These people, we warned, were effectively being erased from their own history and territory in the service of a more exciting story.
Now, the political representatives of one of these indigenous groups have weighed in on the new expedition-- and they are not pleased. The full statement by MASTA--composed of twelve territorial councils of Miskitu people-- shows that they are particularly disturbed that the expedition has not consulted with them, and that objects are being removed from their territory to a distant city.
But they also object to the presentation of the expedition as discovering a city unknown to them; and to the press giving the city a nickname they identify as "racist" and "denigrating".
Repeatedly, the Miskitu statement emphasizes that this area is their ancestral territory. They were autonomous allies of Great Britain, and when Great Britain gave up its foothold on coastal Honduras, the treaty it signed with Honduras included guarantees that Honduras would respect Miskitu territorial rights. Yet, they repeatedly note, no one consulted with them.
Perhaps the most striking thing in the statement is the use of the term looting for the current expedition, undertaken without consultation. For the Miskitu people, these sites, they say, are sacred, are a patrimony, and the knowledge of their locations and the responsibility for the protection has been a legacy.
That last may seem like a grand claim, except that it is true: the remarkable presence, visible on the surface, of dozens of great works of stone sculpture at archaeological sites in the Mosquitia seems incredible, even to experienced archaeologists who aren't familiar with this area of Honduras. Why have they not been looted before? The local people know they are there-- that is how archaeologists have been led to sites for decades. But the local indigenous people have left them in place.
And now, the government of Honduras is removing them as a staged spectacle intended to promote tourist visitation. But the Miskitu people are not letting this happen without fighting back. They are demanding the implementation of an indigenous model of management and protection; they specifically condemn the example of Copan, where indigenous people have no voice in management of the site created by their ancestors. They demand museums in their territory to conserve their material heritage, and training in anthropology and history to facilitate their management of these sites in accordance with their own world view.
And they label as unauthorized any publication of the works being removed from the site without their permission.
This is not how archaeology is supposed to go in the 21st century, where the watch words are community engagement and collaboration. In 19th century archaeology, no one paid attention to local people, certainly not to indigenous people, but that changed in the second half of the 20th century. When 21st century expeditions recreate 19th century practices, indigenous people know their rights, and no longer stay silent.
Here's our translation of the full statement:
We, the children of the Muskitia, constituted in 12 representative Territorial Councils and the social base of MASTA, based on our respect for the spiritual, ancestral, and cultural heritage of our ancestors; aided by Article 346 of the Constitution of the Republic of Honduras; Articles 2, 3, 4, 6, 7, 15 and 35 of ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries; Articles 3, 4, 11, 12, 25 and 26 of the Declaration of the UN on the Rights of Indigenous Peoples; Article 8J of the Convention on Biodiversity, the framework that constitutes the principles of international law recognized by the international community and that Honduras adopted through Article 15 of the Constitution of the Republic; by this means COMMUNICATE to the national and international community concerning the case of the so-called "Ciudad Blanca", on the following points:
First: The State of Honduras received the territory of the Honduran Muskitia from the United Kingdom of Great Britain, through the signing of the Cruz-Wyke treaty celebrated in the city of Comayagua, in the month of December of 1859, in which the government of Honduras made a commitment not to violate the ancestral territorial rights of the Miskitu People (see Article III of the Cruz-Wyke Treaty).
Second: The government of Honduras, with the support of the National Geographic, has carried out the identification of the geographic location of Ciudad Blanca, also known as the lost city, and in mass media as the city of the "monkey king". The location of the said "Ciudad Blanca" is encountered in the territory demonstrated on the map embedded in the first paragraph [of the PDF statement], recognized by the State of Honduras as the "Mosquito Coast", territory pertaining historically and ancestrally to the Miskitu Indigenous People.
Third: The Government of the Republic has authorized, without consultation of the corresponding entities, the publicizing, excavation, and extraction of the archaeological objects encountered in the said city and that they then will be taken to some city in the department of Olancho. In none of the processes authorized by the government, referring to: the search, exploration, geographic location, excavation, extraction and movement to another site, have the Indigenous People of the Muskitia been consulted, demonstrating a failure of interest by the government in respecting the rights of the original peoples in a process of prior consultation for their consent, as is established in the Biocultural Protocol of the Miskitu People.
Fourth: We indigenous peoples, historically have been the object of constant violations of our rights by foreign interference, a product of the lack of clear and effective regulatory policies of the government relative to the protection and preservation of the inventions, patents, authorial rights, traditional practices and security of the indigenous population. A documented example is the case of the massacre of women in the community of Awas by the DEA in 2012.
On the basis of everything explained above, and in the framework of the rights of the Indigenous People of the Honduran Muskitia, we, the children of Tunkur, Truksulu, Waylang and Miskut, in the full enjoyment of our rights, communicate before the national and international community the following:
1. We demand the application of Article III of the Cruz-Wyke Treaty, which established that "the Government of Honduras will respect the possession of whatever land the Mosquito Indians have in the territory called the Mosquito Coast" (See annex: Cruz-Wyke Treaty).
2. We declare that the location of the sacred places of the Muskitia, as would be Ciudad Blanca, Apalka, Raiti, among others that still have not been "officially discovered", never have been unknown to the children of the Muskitia, who have received that knowledge as a form of ancestral knowledge from our grandparents and so we assure the inviolability of these sacred places by looters.
3. We demand the application of the international agreements related to the process of prior consultation, free and informed, by the Muskitia, with the goal of formalizing a model of protection and conservation proposed by the Indigenous People. We do not want to have succeed in the various sacred sites of the Muskitia what has occurred in the Ruins of Copan.
4. We demand the creation of indigenous museums in the Muskitia, in sites duly and conveniently identified by the Miskitu People, where archaeological objects that are part of our sociocultural, historic, and present patrimony can be kept and promoted.
5. We demand that the Government of Honduras, that the National Geographic and/or any institute or university respect the ancestral rights of the Miskitu People, denying authorization for any publication in any medium, relating to the sociocultural patrimony, without the required consent of the Miskitu Indigenous People by means of its representative organization.
6. We demand of the Government of Honduras, the development of local community capacity in the area of anthropology or history for the management of the Miskitu sociocultural riches and patrimony.
7. We clarify for the Government of Honduras, that the Muskitia has a millenial history related to its own culture, values, traditions, and natural riches; these form part of the patrimony and ought to be given protection, conservation, and traditional use for their continuity (for their natural and spiritual coexistence).
8. We demand of the Government of Honduras, the creation of a bureau concerning matters of anthropology, rights of authorship, traditional and innovative practices, with the full and effective participation of the Miskitu people, in keeping with the worldview of the miskitu people and in compliance with Decree No. 262-2013 in the framework of the Plan de Nacion.
9. All the administrative or legislative decisions about the development of any activity in the territory of the Muskitia should be in full compliance with the commitments acquired before the international community which are: the declaration of the UN on the Rights of Indigenous Peoples; the ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries; the Convention on Biological Diversity; the Nagoya Protocol; the Directive Akwe-Kon; Directive of the UN about the free consent, prior and informed; the recommendations of UNESCO about the conservation of the Reserva del Hombre and Rio Platano Biosphere, among others.
In conclusion, and in consequence of the above described:
We, the children of the Miskitu Indigenous People, declare ourselves totally in disagreement with the arbitrary and unilateral decision of the Government of the Republic, concerning the exploration, extraction, and illegal transfer of archaeological objects of Ciudad Blanca; so that, we demand the immediate return of the archaeological objects looted from our sacred site called "Ciudad Blanca". At the same time we demand the respect for the names that our ancestors gave to this sacred site for our people, and we energetically reject the term city of the "monkey king", which has resulted from the recent investigations, a name that we see as denigrating, discriminatory and racist, in detriment to our miskitu people.
With the authorized representation of the Miskitu People, we publish the present communique, with the formulation in Auhya Yari, on the 13th day of the month of January of the year 2016.
The representatives of one of the largest indigenous groups in eastern Honduras have weighed in on the hottest Honduran news story of the new year; and their commentary should be blistering the skin of the President of the country and officials in the government responsible for management of cultural heritage.
The announcement was made by President Juan Orlando Hernández himself: a new expedition was headed to the archaeological site in eastern Honduras which was widely promoted last year as a newly discovered "lost city", supposedly representing an "unknown civilization", and identified with the traditional cultural heritage site of the Pech and Miskito people, called Ciudad Blanca in Spanish.
Hernández himself accompanied the new expedition, whose goal was described as to extract (sustraer) carved stone objects that had been observed on the surface-- a typical pattern for the many sites professionally studied in the region. Among those commenting on the spectacle was the US Ambassador, James Nealon, who professed to be fascinated by the sculptures.
Speaking archaeologically, there is a well-understood history of interpretation of similar objects in sites documented across the region. They have actually been studied since the 18th century, as some of the earliest, if not the earliest, Honduran antiquities exhibited in the British Museum and contemplated by European scholars.
Last year, an international group of scholars (including the authors of this blog) raised concerns about the outdated presentation of archaeology in the original expedition. An open letter to the sponsor and original publisher of the reports stressed that the area is not abandoned, but is actually the territory of indigenous people who surely include the descendants of the site's builders. These people, we warned, were effectively being erased from their own history and territory in the service of a more exciting story.
Now, the political representatives of one of these indigenous groups have weighed in on the new expedition-- and they are not pleased. The full statement by MASTA--composed of twelve territorial councils of Miskitu people-- shows that they are particularly disturbed that the expedition has not consulted with them, and that objects are being removed from their territory to a distant city.
But they also object to the presentation of the expedition as discovering a city unknown to them; and to the press giving the city a nickname they identify as "racist" and "denigrating".
Repeatedly, the Miskitu statement emphasizes that this area is their ancestral territory. They were autonomous allies of Great Britain, and when Great Britain gave up its foothold on coastal Honduras, the treaty it signed with Honduras included guarantees that Honduras would respect Miskitu territorial rights. Yet, they repeatedly note, no one consulted with them.
Perhaps the most striking thing in the statement is the use of the term looting for the current expedition, undertaken without consultation. For the Miskitu people, these sites, they say, are sacred, are a patrimony, and the knowledge of their locations and the responsibility for the protection has been a legacy.
That last may seem like a grand claim, except that it is true: the remarkable presence, visible on the surface, of dozens of great works of stone sculpture at archaeological sites in the Mosquitia seems incredible, even to experienced archaeologists who aren't familiar with this area of Honduras. Why have they not been looted before? The local people know they are there-- that is how archaeologists have been led to sites for decades. But the local indigenous people have left them in place.
And now, the government of Honduras is removing them as a staged spectacle intended to promote tourist visitation. But the Miskitu people are not letting this happen without fighting back. They are demanding the implementation of an indigenous model of management and protection; they specifically condemn the example of Copan, where indigenous people have no voice in management of the site created by their ancestors. They demand museums in their territory to conserve their material heritage, and training in anthropology and history to facilitate their management of these sites in accordance with their own world view.
And they label as unauthorized any publication of the works being removed from the site without their permission.
This is not how archaeology is supposed to go in the 21st century, where the watch words are community engagement and collaboration. In 19th century archaeology, no one paid attention to local people, certainly not to indigenous people, but that changed in the second half of the 20th century. When 21st century expeditions recreate 19th century practices, indigenous people know their rights, and no longer stay silent.
Here's our translation of the full statement:
We, the children of the Muskitia, constituted in 12 representative Territorial Councils and the social base of MASTA, based on our respect for the spiritual, ancestral, and cultural heritage of our ancestors; aided by Article 346 of the Constitution of the Republic of Honduras; Articles 2, 3, 4, 6, 7, 15 and 35 of ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries; Articles 3, 4, 11, 12, 25 and 26 of the Declaration of the UN on the Rights of Indigenous Peoples; Article 8J of the Convention on Biodiversity, the framework that constitutes the principles of international law recognized by the international community and that Honduras adopted through Article 15 of the Constitution of the Republic; by this means COMMUNICATE to the national and international community concerning the case of the so-called "Ciudad Blanca", on the following points:
First: The State of Honduras received the territory of the Honduran Muskitia from the United Kingdom of Great Britain, through the signing of the Cruz-Wyke treaty celebrated in the city of Comayagua, in the month of December of 1859, in which the government of Honduras made a commitment not to violate the ancestral territorial rights of the Miskitu People (see Article III of the Cruz-Wyke Treaty).
Second: The government of Honduras, with the support of the National Geographic, has carried out the identification of the geographic location of Ciudad Blanca, also known as the lost city, and in mass media as the city of the "monkey king". The location of the said "Ciudad Blanca" is encountered in the territory demonstrated on the map embedded in the first paragraph [of the PDF statement], recognized by the State of Honduras as the "Mosquito Coast", territory pertaining historically and ancestrally to the Miskitu Indigenous People.
Third: The Government of the Republic has authorized, without consultation of the corresponding entities, the publicizing, excavation, and extraction of the archaeological objects encountered in the said city and that they then will be taken to some city in the department of Olancho. In none of the processes authorized by the government, referring to: the search, exploration, geographic location, excavation, extraction and movement to another site, have the Indigenous People of the Muskitia been consulted, demonstrating a failure of interest by the government in respecting the rights of the original peoples in a process of prior consultation for their consent, as is established in the Biocultural Protocol of the Miskitu People.
Fourth: We indigenous peoples, historically have been the object of constant violations of our rights by foreign interference, a product of the lack of clear and effective regulatory policies of the government relative to the protection and preservation of the inventions, patents, authorial rights, traditional practices and security of the indigenous population. A documented example is the case of the massacre of women in the community of Awas by the DEA in 2012.
On the basis of everything explained above, and in the framework of the rights of the Indigenous People of the Honduran Muskitia, we, the children of Tunkur, Truksulu, Waylang and Miskut, in the full enjoyment of our rights, communicate before the national and international community the following:
1. We demand the application of Article III of the Cruz-Wyke Treaty, which established that "the Government of Honduras will respect the possession of whatever land the Mosquito Indians have in the territory called the Mosquito Coast" (See annex: Cruz-Wyke Treaty).
2. We declare that the location of the sacred places of the Muskitia, as would be Ciudad Blanca, Apalka, Raiti, among others that still have not been "officially discovered", never have been unknown to the children of the Muskitia, who have received that knowledge as a form of ancestral knowledge from our grandparents and so we assure the inviolability of these sacred places by looters.
3. We demand the application of the international agreements related to the process of prior consultation, free and informed, by the Muskitia, with the goal of formalizing a model of protection and conservation proposed by the Indigenous People. We do not want to have succeed in the various sacred sites of the Muskitia what has occurred in the Ruins of Copan.
4. We demand the creation of indigenous museums in the Muskitia, in sites duly and conveniently identified by the Miskitu People, where archaeological objects that are part of our sociocultural, historic, and present patrimony can be kept and promoted.
5. We demand that the Government of Honduras, that the National Geographic and/or any institute or university respect the ancestral rights of the Miskitu People, denying authorization for any publication in any medium, relating to the sociocultural patrimony, without the required consent of the Miskitu Indigenous People by means of its representative organization.
6. We demand of the Government of Honduras, the development of local community capacity in the area of anthropology or history for the management of the Miskitu sociocultural riches and patrimony.
7. We clarify for the Government of Honduras, that the Muskitia has a millenial history related to its own culture, values, traditions, and natural riches; these form part of the patrimony and ought to be given protection, conservation, and traditional use for their continuity (for their natural and spiritual coexistence).
8. We demand of the Government of Honduras, the creation of a bureau concerning matters of anthropology, rights of authorship, traditional and innovative practices, with the full and effective participation of the Miskitu people, in keeping with the worldview of the miskitu people and in compliance with Decree No. 262-2013 in the framework of the Plan de Nacion.
9. All the administrative or legislative decisions about the development of any activity in the territory of the Muskitia should be in full compliance with the commitments acquired before the international community which are: the declaration of the UN on the Rights of Indigenous Peoples; the ILO Convention 169 on Indigenous and Tribal Peoples in Independent Countries; the Convention on Biological Diversity; the Nagoya Protocol; the Directive Akwe-Kon; Directive of the UN about the free consent, prior and informed; the recommendations of UNESCO about the conservation of the Reserva del Hombre and Rio Platano Biosphere, among others.
In conclusion, and in consequence of the above described:
We, the children of the Miskitu Indigenous People, declare ourselves totally in disagreement with the arbitrary and unilateral decision of the Government of the Republic, concerning the exploration, extraction, and illegal transfer of archaeological objects of Ciudad Blanca; so that, we demand the immediate return of the archaeological objects looted from our sacred site called "Ciudad Blanca". At the same time we demand the respect for the names that our ancestors gave to this sacred site for our people, and we energetically reject the term city of the "monkey king", which has resulted from the recent investigations, a name that we see as denigrating, discriminatory and racist, in detriment to our miskitu people.
With the authorized representation of the Miskitu People, we publish the present communique, with the formulation in Auhya Yari, on the 13th day of the month of January of the year 2016.
Tuesday, December 22, 2015
Callejas Lauded for Pleading Not Guilty in FIFAgate
Rafael Leonardo Callejas Romero, National Party member and former president of Honduras (1990-1994), pleaded "not guilty" in a Federal Court in Miami, Florida to charges of money laundering racketeering, and bribery.
Honduran news paper La Tribuna labeled that a "master strategy". The reason why tells us a lot about justice in Honduras.
On December 3, 2015, the US Department of Justice unveiled charges against 16 more defendants in its on-going investigation into corruption in international soccer in the criminal investigation that is known as FIFAgate. FIFA is the Federación Internacional de Futbol Asociacion.
The 16 new defendants were charged with 92 counts, including money laundering, racketeering, and wire fraud conspiracies. The charges were announced after the overnight arrest in Switzerland that morning of the FIFA vice president, Alfredo Hawit, a Honduran citizen charged in the same indictment as Callejas.
Rafael Callejas, a member of the FIFA Television and Marketing committee, learned through the Justice Department release that he had been named in the indictment.
Subsequently the US government filed formal paperwork with the government of Honduras to extradite him to the United States.
Callejas originally decided to remain in Honduras and fight extradition, but on December 14 he boarded a private plane on a flight for Miami to turn himself in and face the charges. The Honduran press later revealed that US Ambassador James Nealon had helped negotiate Callejas's return to the US.
On his arrival in Miami, Callejas was formally arrested and transferred to a holding cell. Callejas was arraigned the next morning and pleaded not guilty to all charges. Some Honduran press accounts had him returned to a holding cell. La Tribuna indicated that he traveled with a briefcase full of documents that name names as part of his proposed defense strategy.
Which brings us to the "master strategy" that La Tribuna announced in its December 21 edition. We quote:
At first glance this may not make sense to readers. In the Honduran legal system, despite judicial reforms, there is still an understanding that those charged with a crime who claim to be innocent must prove their innocence. The idea that the government always has to prove the guilt of the accused, fundamental to the US legal system, is thus not the norm, but rather, something that La Tribuna is seeing as the result of a great strategic move: pleading "not guilty" rather than "innocent".
In fact, La Tribuna helpfully expands on this understanding of the US legal system, seen through this peculiar Honduran lens:
Think for a moment of the understanding of court procedure that this flawed explanation is reinforcing. Cleverly, Callejas is moving, not to prove his own innocence, but to challenge the accusers to come up with enough evidence to prove he is guilty. And it gets worse:
There you have it: a Honduran vision of justice. The rest of the article offers the "information" that Callejas won't have to wear an orange jumpsuit because those are reserved for terrorists and violent criminals; and emphasizes how expensive the legal defense will be. But don't worry: his excellent legal team has come up with the brilliant strategy of pleading "not guilty", so now the prosecution is on the ropes...
Honduran news paper La Tribuna labeled that a "master strategy". The reason why tells us a lot about justice in Honduras.
On December 3, 2015, the US Department of Justice unveiled charges against 16 more defendants in its on-going investigation into corruption in international soccer in the criminal investigation that is known as FIFAgate. FIFA is the Federación Internacional de Futbol Asociacion.
The 16 new defendants were charged with 92 counts, including money laundering, racketeering, and wire fraud conspiracies. The charges were announced after the overnight arrest in Switzerland that morning of the FIFA vice president, Alfredo Hawit, a Honduran citizen charged in the same indictment as Callejas.
Rafael Callejas, a member of the FIFA Television and Marketing committee, learned through the Justice Department release that he had been named in the indictment.
Subsequently the US government filed formal paperwork with the government of Honduras to extradite him to the United States.
Callejas originally decided to remain in Honduras and fight extradition, but on December 14 he boarded a private plane on a flight for Miami to turn himself in and face the charges. The Honduran press later revealed that US Ambassador James Nealon had helped negotiate Callejas's return to the US.
On his arrival in Miami, Callejas was formally arrested and transferred to a holding cell. Callejas was arraigned the next morning and pleaded not guilty to all charges. Some Honduran press accounts had him returned to a holding cell. La Tribuna indicated that he traveled with a briefcase full of documents that name names as part of his proposed defense strategy.
Which brings us to the "master strategy" that La Tribuna announced in its December 21 edition. We quote:
The defense of the ex-president, Rafael Leonardo Callejas, is resorting to a “master strategy”, legally speaking, by advising him that he declare himself not guilty, because now the US government must present its evidence, an expert told LA TRIBUNA.
At first glance this may not make sense to readers. In the Honduran legal system, despite judicial reforms, there is still an understanding that those charged with a crime who claim to be innocent must prove their innocence. The idea that the government always has to prove the guilt of the accused, fundamental to the US legal system, is thus not the norm, but rather, something that La Tribuna is seeing as the result of a great strategic move: pleading "not guilty" rather than "innocent".
In fact, La Tribuna helpfully expands on this understanding of the US legal system, seen through this peculiar Honduran lens:
The difference between the declaration of innocent and "not guilty" rests in the fact that in the first case, the accused has to present evidence to show directly his innocence; while in the second, the burden of proof is transferred to those who accuse him, according to the source.
Under the scenario of "not guilty”, it will be the federal attorneys of New York and the US Department of Justice that must provide sufficient evidence to demonstrate the guilt of the ex-leader, he added.
Think for a moment of the understanding of court procedure that this flawed explanation is reinforcing. Cleverly, Callejas is moving, not to prove his own innocence, but to challenge the accusers to come up with enough evidence to prove he is guilty. And it gets worse:
If they do not succeed in proving the charges, the judge will have no other alternative than to absolve him... although the case could remain open if in the future new evidence were to emerge, the interviewed expert specified.
The fact that bail has been accepted is a sign that the strategy worked, initially, but the decisive hearing will be the 16th of March, when the government attorneys will formally present the charges with the evidence of guilt, the source added.
There you have it: a Honduran vision of justice. The rest of the article offers the "information" that Callejas won't have to wear an orange jumpsuit because those are reserved for terrorists and violent criminals; and emphasizes how expensive the legal defense will be. But don't worry: his excellent legal team has come up with the brilliant strategy of pleading "not guilty", so now the prosecution is on the ropes...
Monday, December 21, 2015
Can Honduras meet the certification goals of the Alliance for Prosperity?
Tiempo reported today that the newly passed US budget bill includes money for, and suggests the implementation of, a Comision Internacional Contra la Impunidad y la Corupción en Honduras (CICIH), something the indignados have been calling for since they began marching in May of this year.
Tiempo did not get it quite right. The bill does contain authorization of funding for a CICIH, should Honduras implement it, but does not suggest or mandate that Honduras do so nor does it set a cap on support for one, if implemented. It provides that if Honduras or El Salvador establishes an International Commission against corruption and impunity, funds from the Central American Regional Security Initiative (CARSI) can be used to support them if the House Appropriations Committee agrees after consultation.
Which is not to say that the bill has no policy implications for Honduras, and for US relations with it. House Bill 2029, which passed and was signed by President Obama, establishes the appropriations for the State Department, including the authorization language regarding the Alliance for Prosperity in the Northern Triangle of Central America.
In reaction to concerns about continuing migration from these countries, Congress bars the disbursement of 25% of the approved funds to the Northern Triangle countries unless the Secretary of State can certify that these governments are informing their population of the dangers of traveling to the southwestern border of the United States; are combating human trafficking and smuggling; have improved their border security; and are cooperating with the US government and governments in the region to facilitate the return, repatriation, and reintegration of those that do not qualify for refugee status under International law.
A further 50% of the funds for the Alliance are embargoed until and unless the Secretary of Sate can certify that each government meets twelve other criteria. In the case of Honduras, we think the State Department has its work cut out for it.
First the Secretary of State must certify in writing that each government is taking effective steps to
"establish an autonomous public accountability entity to provide oversight of the Plan". Honduras does not currently have such an entity that we can identify.
Next the Secretary of State must certify that each government is combating corruption "including investigating and prosecuting government officials credibly alleged to be corrupt."
In Honduras, there are far more identified cases of corruption than the Public Prosecutor's office has chosen to prosecute, and it has not prosecuted the most flagrant cases involving high status individuals in the National Party (the current ruling party in Honduras).
The Secretary of State is also charged to certify that these governments, including Honduras, has taken steps to "implement reforms, policies, and programs to improve transparency and strengthen public institutions, including increasing the capacity and independence of the judiciary and the Office of the Attorney General".
Honduras has recently been signatory to an agreement with Transparency International and the Asociación para una Sociedad más Justa (ASJ) to promote and encourage transparency in the Honduran government.
There's a conflict between what Honduras agreed to do with Transparency International, and what it is doing with the Ley de Secretos Oficiales, which allows the Honduran government to arbitrarily and unilaterally make anything it wants unavailable to the public for up to 25 years, an action taken despite strong opposition from groups like the ASJ and its own government transparency watchdog, the Instituto de Acceso a la Información Publica. In June of 2015 the Instituto de Acceso a la Información Publica issued a resolution ordering the Honduran Congress to reform the law to follow Article 72 of the constitution and other laws related to human rights and other agreements Honduras has entered into regarding transparency. To date, the Honduran Congress has refused to amend the law.
Honduras has taken baby steps towards training the judiciary and the office of the Public Prosecutor to better be able to do their jobs. While there's been a large financial investment in training, there is little to show for it. The Honduran government has agreed to implement the OAS sponsored MACCIH, but it largely shaped this program into yet another advisory group that will propose changes to the judiciary and Public Prosecutor's office. The current President and Congress have ignored at least four sets of recommendations for changes to the judiciary since the 2009 coup and we don't see any reason to expect the outcome this time will be different.
The Secretary must further certify that civil society organizations and local communities are consulted during the design of projects, and participate in the implementation of them. The lack of such consultation has been a constant concern for indigenous and rural communities faced with mining, hydroelectric, and other government approved projects.
Another certification required by the bill is that the Honduran government is taking effective steps to "counter the activities of criminal gangs, drug traffickers, and organized crime."
Here the government of Honduras has a mixed record. On the one hand, it has somewhat improved the national homicide rate, bringing it down to about 60 homicides per 100,00 population this year. It has made numerous arrests of gang members and members of organized crime, but has successfully prosecuted none of them to date. All high level members of organized crime in Honduras have been extradited to the United States for trial on charges here. Extortion is rampant, kidnapping for ransom is on the rise, and mass murder, in which four or more people are killed in a single incident, is on the rise. Drug use within Honduras is increasing as well.
Another certification deals with the government taking effective steps to "investigate and prosecute in the civilian justice system members of military and police forces who are credibly alleged to have violated human rights, and ensure that the military and police are cooperating in such cases".
In theory this is already true under the Ley del Ministerio Publico of 1993. However, the Public Prosecutor's office has to choose to prosecute the case, and has a miserable success record in court.
The Secretary of State will have to certify that the Northern Triangle governments are taking effective steps to "cooperate with commissions against impunity, as appropriate, and with regional human rights entities." In Guatemala, the Public Prosecutor's office was slow to accept the help and guidance of its Comisión Internacional Contra la Corrupcion y la Impunidad (CICIG). Honduras and El Salvador currently don't have such International commissions. Although there is sentiment in both places to establish them, that sentiment is just not in either current government.
Honduras recently boycotted a series of InterAmerican Human Rights hearings on judicial independence and the corruption of government institutions (see the videos of the hearings from October 22, 2015 on the linked page). Its absence was notable, and noted by the court. It has, to date, ignored the finding of the InterAmerican Court that Honduras violated due process in dismissing three justices and a magistrate in 2010 for having opposed the 2009 coup. In October, the court ordered two of the judges and the magistrate reinstated or paid lost wages. The Honduran government has done nothing to date, not even acknowledge the finding. Ignoring and boycotting are not evidence of cooperation with regional human rights organizations.
The Secretary of State must also certify that the government will "support programs to reduce poverty, create jobs, and promote equitable economic growth in areas contributing to large numbers of migrants."
The Honduran Congress is barely moving here. Historically National Party governments, like the current one, have increased, rather than decreased poverty in Honduras. This is visible both in the percentage of the population living in poverty, and in the GINI index recorded each year for Honduras. We've written about this trend before (here and here).
The Secretary of State will have to certify that the Honduran government is taking effective steps to "create a professional, accountable civilian police force and curtail the role of the military in internal policing".
One could not certify that for Honduras today. Not only is there no viable mechanism for removing corrupt, crime-linked police officers (everything done to date has been inconsequential), and no will to do so, but the current government is expressly in favor of militarizing the police and abolishing the civilian police force by progressively defunding it in favor of increased funding to the militarized police force it is building up from scratch. Honduras is therefore unlikely to take steps under its current government to comply with this condition of funding.
The Secretary of State will have to certify that the government of Honduras is taking effective steps to "protect the rights of political opposition parties, journalists, trade unionists, human rights defenders, and other civil society activists to operate without interference".
In the Honduras of today, reporters, trade unionists, human rights defenders, and members of the opposition party all regularly receive death threats via text messages. Many of those threatened either quit, or get killed. The Honduran police don't have the staff to pursue something as high tech as tracing a text message source. The Honduran military intelligence group probably could do this, since they effectively have a tap on all Internet and telephone connections in the country, but haven't done anything about it. Opposition parties in Congress are shut out of the public debate of bills by the leadership.
The Secretary of State must certify that the governments of these countries, including Honduras, are taking steps to "increase government revenues, including by implementing tax reforms and strengthening customs agencies".
Finally, the Secretary must certify the government of Honduras is taking effective steps to "resolve commercial disputes, including the confiscation of real property, between United States entities and such government."
Given the situation on the ground, it should be difficult for the Secretary of State to certify the Honduras of today is taking effective steps to meet these criteria. Unless it makes changes, Honduras might not have access to the funding it thinks it is going to receive under this program.
Tiempo did not get it quite right. The bill does contain authorization of funding for a CICIH, should Honduras implement it, but does not suggest or mandate that Honduras do so nor does it set a cap on support for one, if implemented. It provides that if Honduras or El Salvador establishes an International Commission against corruption and impunity, funds from the Central American Regional Security Initiative (CARSI) can be used to support them if the House Appropriations Committee agrees after consultation.
Which is not to say that the bill has no policy implications for Honduras, and for US relations with it. House Bill 2029, which passed and was signed by President Obama, establishes the appropriations for the State Department, including the authorization language regarding the Alliance for Prosperity in the Northern Triangle of Central America.
In reaction to concerns about continuing migration from these countries, Congress bars the disbursement of 25% of the approved funds to the Northern Triangle countries unless the Secretary of State can certify that these governments are informing their population of the dangers of traveling to the southwestern border of the United States; are combating human trafficking and smuggling; have improved their border security; and are cooperating with the US government and governments in the region to facilitate the return, repatriation, and reintegration of those that do not qualify for refugee status under International law.
A further 50% of the funds for the Alliance are embargoed until and unless the Secretary of Sate can certify that each government meets twelve other criteria. In the case of Honduras, we think the State Department has its work cut out for it.
First the Secretary of State must certify in writing that each government is taking effective steps to
"establish an autonomous public accountability entity to provide oversight of the Plan". Honduras does not currently have such an entity that we can identify.
Next the Secretary of State must certify that each government is combating corruption "including investigating and prosecuting government officials credibly alleged to be corrupt."
In Honduras, there are far more identified cases of corruption than the Public Prosecutor's office has chosen to prosecute, and it has not prosecuted the most flagrant cases involving high status individuals in the National Party (the current ruling party in Honduras).
The Secretary of State is also charged to certify that these governments, including Honduras, has taken steps to "implement reforms, policies, and programs to improve transparency and strengthen public institutions, including increasing the capacity and independence of the judiciary and the Office of the Attorney General".
Honduras has recently been signatory to an agreement with Transparency International and the Asociación para una Sociedad más Justa (ASJ) to promote and encourage transparency in the Honduran government.
There's a conflict between what Honduras agreed to do with Transparency International, and what it is doing with the Ley de Secretos Oficiales, which allows the Honduran government to arbitrarily and unilaterally make anything it wants unavailable to the public for up to 25 years, an action taken despite strong opposition from groups like the ASJ and its own government transparency watchdog, the Instituto de Acceso a la Información Publica. In June of 2015 the Instituto de Acceso a la Información Publica issued a resolution ordering the Honduran Congress to reform the law to follow Article 72 of the constitution and other laws related to human rights and other agreements Honduras has entered into regarding transparency. To date, the Honduran Congress has refused to amend the law.
Honduras has taken baby steps towards training the judiciary and the office of the Public Prosecutor to better be able to do their jobs. While there's been a large financial investment in training, there is little to show for it. The Honduran government has agreed to implement the OAS sponsored MACCIH, but it largely shaped this program into yet another advisory group that will propose changes to the judiciary and Public Prosecutor's office. The current President and Congress have ignored at least four sets of recommendations for changes to the judiciary since the 2009 coup and we don't see any reason to expect the outcome this time will be different.
The Secretary must further certify that civil society organizations and local communities are consulted during the design of projects, and participate in the implementation of them. The lack of such consultation has been a constant concern for indigenous and rural communities faced with mining, hydroelectric, and other government approved projects.
Another certification required by the bill is that the Honduran government is taking effective steps to "counter the activities of criminal gangs, drug traffickers, and organized crime."
Here the government of Honduras has a mixed record. On the one hand, it has somewhat improved the national homicide rate, bringing it down to about 60 homicides per 100,00 population this year. It has made numerous arrests of gang members and members of organized crime, but has successfully prosecuted none of them to date. All high level members of organized crime in Honduras have been extradited to the United States for trial on charges here. Extortion is rampant, kidnapping for ransom is on the rise, and mass murder, in which four or more people are killed in a single incident, is on the rise. Drug use within Honduras is increasing as well.
Another certification deals with the government taking effective steps to "investigate and prosecute in the civilian justice system members of military and police forces who are credibly alleged to have violated human rights, and ensure that the military and police are cooperating in such cases".
In theory this is already true under the Ley del Ministerio Publico of 1993. However, the Public Prosecutor's office has to choose to prosecute the case, and has a miserable success record in court.
The Secretary of State will have to certify that the Northern Triangle governments are taking effective steps to "cooperate with commissions against impunity, as appropriate, and with regional human rights entities." In Guatemala, the Public Prosecutor's office was slow to accept the help and guidance of its Comisión Internacional Contra la Corrupcion y la Impunidad (CICIG). Honduras and El Salvador currently don't have such International commissions. Although there is sentiment in both places to establish them, that sentiment is just not in either current government.
Honduras recently boycotted a series of InterAmerican Human Rights hearings on judicial independence and the corruption of government institutions (see the videos of the hearings from October 22, 2015 on the linked page). Its absence was notable, and noted by the court. It has, to date, ignored the finding of the InterAmerican Court that Honduras violated due process in dismissing three justices and a magistrate in 2010 for having opposed the 2009 coup. In October, the court ordered two of the judges and the magistrate reinstated or paid lost wages. The Honduran government has done nothing to date, not even acknowledge the finding. Ignoring and boycotting are not evidence of cooperation with regional human rights organizations.
The Secretary of State must also certify that the government will "support programs to reduce poverty, create jobs, and promote equitable economic growth in areas contributing to large numbers of migrants."
The Honduran Congress is barely moving here. Historically National Party governments, like the current one, have increased, rather than decreased poverty in Honduras. This is visible both in the percentage of the population living in poverty, and in the GINI index recorded each year for Honduras. We've written about this trend before (here and here).
The Secretary of State will have to certify that the Honduran government is taking effective steps to "create a professional, accountable civilian police force and curtail the role of the military in internal policing".
One could not certify that for Honduras today. Not only is there no viable mechanism for removing corrupt, crime-linked police officers (everything done to date has been inconsequential), and no will to do so, but the current government is expressly in favor of militarizing the police and abolishing the civilian police force by progressively defunding it in favor of increased funding to the militarized police force it is building up from scratch. Honduras is therefore unlikely to take steps under its current government to comply with this condition of funding.
The Secretary of State will have to certify that the government of Honduras is taking effective steps to "protect the rights of political opposition parties, journalists, trade unionists, human rights defenders, and other civil society activists to operate without interference".
In the Honduras of today, reporters, trade unionists, human rights defenders, and members of the opposition party all regularly receive death threats via text messages. Many of those threatened either quit, or get killed. The Honduran police don't have the staff to pursue something as high tech as tracing a text message source. The Honduran military intelligence group probably could do this, since they effectively have a tap on all Internet and telephone connections in the country, but haven't done anything about it. Opposition parties in Congress are shut out of the public debate of bills by the leadership.
The Secretary of State must certify that the governments of these countries, including Honduras, are taking steps to "increase government revenues, including by implementing tax reforms and strengthening customs agencies".
Finally, the Secretary must certify the government of Honduras is taking effective steps to "resolve commercial disputes, including the confiscation of real property, between United States entities and such government."
Given the situation on the ground, it should be difficult for the Secretary of State to certify the Honduras of today is taking effective steps to meet these criteria. Unless it makes changes, Honduras might not have access to the funding it thinks it is going to receive under this program.
Friday, December 11, 2015
Keeping the US border safe...in Honduras?
On November 18, five individuals were detained by Honduran authorities when they tried to enter Honduras with questionable Greek passports. Given the timing, in the wake of terrorist attacks in Paris, the story was widely reported in US media.
The passports contained inconsistencies that raised the concern of Honduran immigration officials who ordered their detention. While it was widely reported from the first that they were Syrians, it was only on the 19th of November that Honduran officials were able to confirm their identities: four college students and a professor, all hoping to seek asylum in the United States.
The group arrived on an Avianca flight from San Jose, Costa Rica, to Tegucigalpa, on the evening of November 17. Some of the biometric data in the passports did not match the individuals, raising the concern of Honduran immigration officials, who then detained them. Greek officials reported that passports for people with those names had been stolen in Athens. Representatives of the Greek embassy of Honduras confirmed that none of the five spoke a word of Greek.
After these five were detained, Honduran immigration officials reported that one other individual, who tried to enter Honduras with a false Greek passport the previous Friday, had been denied entry and deported. Three days after the group of five were detained, three more people, reportedly a Syrian woman and two Pakistani men, were arrested after entering Honduras without proper documents, arriving over land from Nicaragua.
All this made it seem for a short while as if Honduras was a weak point in potential terrorism in the US, invoking fears that ISIS was sending people to infiltrate the US via the border with Mexico.
Never mind that getting to the US-Mexican border from Honduras is a daunting prospect, with Mexico responding strongly to US persuasion to stop refugees coming from Central America from reaching the US border. Even without the recent crack down, the route from Honduras to the US over land was hardly ever easy.
Within a week of the detentions in Honduras, it became clear to most international media that these five men were not the first wave of some subtle terrorist strategy.
Most English media dropped the story entirely. In an exception to this rule, the BBC reported on November 24 that the Syrians arrested at the Tegucigalpa airport had applied for asylum, "because their lives were at risk in their home country".
On December 1, Reuters reported that the men had been freed, and charges dropped, after they paid a fine equal to $450 each for falsifying documents, and that they were expected to be granted permanent refugee status on February 22, quoting a Honduran official saying
How the group reached Honduras is a fascinating illustration of the routes taken by those fleeing Syria.
Authorities said that the group that reached Honduras traveled from Syria to Lebanon, Turkey, Brazil, Argentina, and Costa Rica before trying to enter Honduras. Honduras' El Heraldo reported that the five fake Greek passports were acquired in Brazil, specifically because Greeks do no need a visa to enter Honduras, but Syrians do.
At least six people traveling on Greek passports, including the five detained in Honduras, entered Costa Rica on a flight from Argentina on November 11. The sixth person, a woman, was detained in San Jose, Costa Rica for questioning.
Costa Rica and Honduras worked with Interpol to identify these individuals.
A check with Interpol found none of them had a criminal background.
On December 1, a Honduran court ordered their release after a plea bargain was reached. The five Syrians signed a document in which they admitted to the crime of forging government documents (their fake passports) and were fined. They were freed from prison, and the government of Honduras agreed to rule within the next 90 days on their application for refugee status.
The Syrian and Lebanese Christian community in Honduras that is supporting their application are descendants of immigrants who themselves came to Honduras as refugees from the Ottoman empire in the late 19th and early 20th centuries.
None of these developments have been enough to stop the exploitation of the story, minus the actual outcome and the exoneration of the Syrians held in Honduras from any terrorist ties, by right wing media and politicians in the US.
Arguing against accepting any Syrian refugees in the US, just this week one state senator wrote
"Imminent danger".
From students and a professor fleeing violence, welcomed as refugees by one of the poorest nations in our hemisphere.
The passports contained inconsistencies that raised the concern of Honduran immigration officials who ordered their detention. While it was widely reported from the first that they were Syrians, it was only on the 19th of November that Honduran officials were able to confirm their identities: four college students and a professor, all hoping to seek asylum in the United States.
The group arrived on an Avianca flight from San Jose, Costa Rica, to Tegucigalpa, on the evening of November 17. Some of the biometric data in the passports did not match the individuals, raising the concern of Honduran immigration officials, who then detained them. Greek officials reported that passports for people with those names had been stolen in Athens. Representatives of the Greek embassy of Honduras confirmed that none of the five spoke a word of Greek.
After these five were detained, Honduran immigration officials reported that one other individual, who tried to enter Honduras with a false Greek passport the previous Friday, had been denied entry and deported. Three days after the group of five were detained, three more people, reportedly a Syrian woman and two Pakistani men, were arrested after entering Honduras without proper documents, arriving over land from Nicaragua.
All this made it seem for a short while as if Honduras was a weak point in potential terrorism in the US, invoking fears that ISIS was sending people to infiltrate the US via the border with Mexico.
Never mind that getting to the US-Mexican border from Honduras is a daunting prospect, with Mexico responding strongly to US persuasion to stop refugees coming from Central America from reaching the US border. Even without the recent crack down, the route from Honduras to the US over land was hardly ever easy.
Within a week of the detentions in Honduras, it became clear to most international media that these five men were not the first wave of some subtle terrorist strategy.
Most English media dropped the story entirely. In an exception to this rule, the BBC reported on November 24 that the Syrians arrested at the Tegucigalpa airport had applied for asylum, "because their lives were at risk in their home country".
On December 1, Reuters reported that the men had been freed, and charges dropped, after they paid a fine equal to $450 each for falsifying documents, and that they were expected to be granted permanent refugee status on February 22, quoting a Honduran official saying
they had been warmly received by Honduras' Arab community, and were planning to stay in the Central American country.
How the group reached Honduras is a fascinating illustration of the routes taken by those fleeing Syria.
Authorities said that the group that reached Honduras traveled from Syria to Lebanon, Turkey, Brazil, Argentina, and Costa Rica before trying to enter Honduras. Honduras' El Heraldo reported that the five fake Greek passports were acquired in Brazil, specifically because Greeks do no need a visa to enter Honduras, but Syrians do.
At least six people traveling on Greek passports, including the five detained in Honduras, entered Costa Rica on a flight from Argentina on November 11. The sixth person, a woman, was detained in San Jose, Costa Rica for questioning.
Costa Rica and Honduras worked with Interpol to identify these individuals.
A check with Interpol found none of them had a criminal background.
On December 1, a Honduran court ordered their release after a plea bargain was reached. The five Syrians signed a document in which they admitted to the crime of forging government documents (their fake passports) and were fined. They were freed from prison, and the government of Honduras agreed to rule within the next 90 days on their application for refugee status.
The Syrian and Lebanese Christian community in Honduras that is supporting their application are descendants of immigrants who themselves came to Honduras as refugees from the Ottoman empire in the late 19th and early 20th centuries.
None of these developments have been enough to stop the exploitation of the story, minus the actual outcome and the exoneration of the Syrians held in Honduras from any terrorist ties, by right wing media and politicians in the US.
Arguing against accepting any Syrian refugees in the US, just this week one state senator wrote
Throw in the five Syrian nationals on their way to the U.S. that were apprehended two weeks ago in Honduras with fraudulent passports and we have a clear picture of imminent danger.
"Imminent danger".
From students and a professor fleeing violence, welcomed as refugees by one of the poorest nations in our hemisphere.
Separation of Church and State?
The Honduran constitution establishes Honduras as a secular nation, and calls for its elected and high government officials to be secular.
So why are candidates for the Honduran Supreme Court using religious, not secular, grounds to make legal arguments in their public job interviews?
The Honduran Constitution is quite clear about the separation of Church and State. It states in Article 77 that
Leonidas Rosa Suazo points out in his essay "Religion and the Contemporary Judicial System" that this principle has thus been encoded in a variety of Honduran laws, including the Ley de Codigo Penal (articles 210-213), the Ley de Policia y Convivencia Social (especially article 145, 149).
Likewise, there is clear juricial prohibition on the interaction of political parties and religion. Parties or movements within them cannot advocate for a particular form of religion.
There's clearly a tension between law and practice here. The Lobo Sosa government established, and later was forced to abolish, a Ministro de Culto as a cabinet level position. Lobo Sosa appointed the pastor of a specific evangelical church, Carlos Portillo, to the post. The Honduran Supreme Court ruled unconstitutional both that position, and an associated rule establishing what a "religion" was to be. Lobo Sosa was forced to fire his Minister.
As Rosa Sauzo points out, the Honduran state fails spectacularly when it comes to refraining from placing religious obligations on its citizens. The state assumes at times, that everyone is Catholic, or at least Christian, in the establishment of government holidays like Holy Week, and in the constant benedictions given at government and especially military ceremonies. Public national prayer meetings are common, both in the government, and in the military.
What Rosa Suazo doesn't address is the degree to which religion is the template and justification for legal reasoning, as manifest in the candidate interviews held this week.
The Nominating Commission, which will eventually give 45 names to the Honduran Congress to select 15 new Supreme Court Justices, held public hearings where it, and members of the public, questioned candidates for 20 minutes each on their ties to political parties and a variety of legal issues.
The list of candidates currently stands at 97 candidates. That list of 97 was whittled down from a larger list. Many didn't pass the lie detector and financial investigation portion of the preliminary investigation into candidates. Surprisingly, 10 candidates who failed that portion still are on the 97 person list. Of the 11 current members of the Honduran Supreme Court who are seeking re-election to the court, only 4 passed the first stage of screening.
The US government has intervened heavily in the selection process.
During the first phase, the US gave Honduras a list of 20 of the candidates that it argued needed to be eliminated from the list. They were.
During the current phase of candidate evaluation, the US government gave Honduras a list of 24 candidates that needed further investigation. The Nominating Committee has not decided what, if anything, it will do about the latest US intervention. Those candidates will be interviewed with the others remaining on the list.
In this context the public 20 minute interviews began. On the first day, 11 candidates were interviewed. The interviews were structured so that the candidate was given 3 minutes for an opening statement, 12 minutes to hear and answer questions from the Nominating Committee, and 5 minutes to hear and answer questions from the sparse audience.
First up was Celino Aguilera, currently a member of the Judiciary Committee, the committee that reviews judicial behavior and punishes Justices and Magistrates. Asked about same sex marriage, he replied that religious and juridical precedents establish that marriage is between a man and a woman.
Candidate Servando Alcerro Saravia, a lawyer with a masters degree in theology and a doctorate in divinity, was asked how he would resolve a hypothetical case in which the Honduran Congress had approved same sex marriage and it was being challenged in court.
He replied that the Honduran constitution doesn't allow same sex marriage, which is true. Article 112 establishes that a man and a woman have the right to contract marriage and be equal under the law. It specifically prohibits same sex marriages and excludes recognizing such marriages legally constituted in other jurisdictions that allow them.
However, he also said that he would have to take into account the universal guide that God established that marriage is between a man and a woman. Asked if being a minister was compatible with being a judge, he replied that "Jesus Christ was chief lawyer (abogado de los abogados)" and "Lawyering comes out of Christian principles".
We don't know how many of the other candidates were, or will be, asked about same sex marriage.
The prohibition was only put into the constitution in 2004-2005, so this is an issue that seems to have emerged in parallel with the global move towards legalizing marriage equality.
In the two cases where testimony was published in Honduran media, however, questioning about the issue is more illuminating the degree to which separation of church and state, called for in the Honduran constitution, has been eroded. It's one thing to cite Honduran law in support of a hypothetical legal decision. It is quite another thing to cite religion as the basis for possible action as a future Supreme Court justice.
And no matter what Servando Saravia thinks, the practice of the law in Honduras is not supposed to be based on "Christian principles". It is supposed to be based on legal precedent.
So why are candidates for the Honduran Supreme Court using religious, not secular, grounds to make legal arguments in their public job interviews?
The Honduran Constitution is quite clear about the separation of Church and State. It states in Article 77 that
"[The Constitution] guarantees the free exercise of all religions and beliefs without the pre-eminence of any one of them, when not contravening the laws and public order. Ministers of the various religions may not hold public office or engage in any form of political propaganda by invoking religious motives or basing themselves in it, to the religious beliefs of the people.
Artículo 77. Se garantiza el libre ejercicio de todas las religiones y cultos sin preeminencia alguna, siempre que no contravengan las leyes y el orden público.
Los ministros de las diversas religiones, no podrán ejercer cargos públicos ni hacer en ninguna forma propaganda política, invocando motivos de religión o valiéndose, como medio para tal fin, de las creencias religiosas del pueblo."
Leonidas Rosa Suazo points out in his essay "Religion and the Contemporary Judicial System" that this principle has thus been encoded in a variety of Honduran laws, including the Ley de Codigo Penal (articles 210-213), the Ley de Policia y Convivencia Social (especially article 145, 149).
Likewise, there is clear juricial prohibition on the interaction of political parties and religion. Parties or movements within them cannot advocate for a particular form of religion.
There's clearly a tension between law and practice here. The Lobo Sosa government established, and later was forced to abolish, a Ministro de Culto as a cabinet level position. Lobo Sosa appointed the pastor of a specific evangelical church, Carlos Portillo, to the post. The Honduran Supreme Court ruled unconstitutional both that position, and an associated rule establishing what a "religion" was to be. Lobo Sosa was forced to fire his Minister.
As Rosa Sauzo points out, the Honduran state fails spectacularly when it comes to refraining from placing religious obligations on its citizens. The state assumes at times, that everyone is Catholic, or at least Christian, in the establishment of government holidays like Holy Week, and in the constant benedictions given at government and especially military ceremonies. Public national prayer meetings are common, both in the government, and in the military.
What Rosa Suazo doesn't address is the degree to which religion is the template and justification for legal reasoning, as manifest in the candidate interviews held this week.
The Nominating Commission, which will eventually give 45 names to the Honduran Congress to select 15 new Supreme Court Justices, held public hearings where it, and members of the public, questioned candidates for 20 minutes each on their ties to political parties and a variety of legal issues.
The list of candidates currently stands at 97 candidates. That list of 97 was whittled down from a larger list. Many didn't pass the lie detector and financial investigation portion of the preliminary investigation into candidates. Surprisingly, 10 candidates who failed that portion still are on the 97 person list. Of the 11 current members of the Honduran Supreme Court who are seeking re-election to the court, only 4 passed the first stage of screening.
The US government has intervened heavily in the selection process.
During the first phase, the US gave Honduras a list of 20 of the candidates that it argued needed to be eliminated from the list. They were.
During the current phase of candidate evaluation, the US government gave Honduras a list of 24 candidates that needed further investigation. The Nominating Committee has not decided what, if anything, it will do about the latest US intervention. Those candidates will be interviewed with the others remaining on the list.
In this context the public 20 minute interviews began. On the first day, 11 candidates were interviewed. The interviews were structured so that the candidate was given 3 minutes for an opening statement, 12 minutes to hear and answer questions from the Nominating Committee, and 5 minutes to hear and answer questions from the sparse audience.
First up was Celino Aguilera, currently a member of the Judiciary Committee, the committee that reviews judicial behavior and punishes Justices and Magistrates. Asked about same sex marriage, he replied that religious and juridical precedents establish that marriage is between a man and a woman.
Candidate Servando Alcerro Saravia, a lawyer with a masters degree in theology and a doctorate in divinity, was asked how he would resolve a hypothetical case in which the Honduran Congress had approved same sex marriage and it was being challenged in court.
He replied that the Honduran constitution doesn't allow same sex marriage, which is true. Article 112 establishes that a man and a woman have the right to contract marriage and be equal under the law. It specifically prohibits same sex marriages and excludes recognizing such marriages legally constituted in other jurisdictions that allow them.
However, he also said that he would have to take into account the universal guide that God established that marriage is between a man and a woman. Asked if being a minister was compatible with being a judge, he replied that "Jesus Christ was chief lawyer (abogado de los abogados)" and "Lawyering comes out of Christian principles".
We don't know how many of the other candidates were, or will be, asked about same sex marriage.
The prohibition was only put into the constitution in 2004-2005, so this is an issue that seems to have emerged in parallel with the global move towards legalizing marriage equality.
In the two cases where testimony was published in Honduran media, however, questioning about the issue is more illuminating the degree to which separation of church and state, called for in the Honduran constitution, has been eroded. It's one thing to cite Honduran law in support of a hypothetical legal decision. It is quite another thing to cite religion as the basis for possible action as a future Supreme Court justice.
And no matter what Servando Saravia thinks, the practice of the law in Honduras is not supposed to be based on "Christian principles". It is supposed to be based on legal precedent.
Wednesday, October 28, 2015
Why the OAS MACCIH Will Likely Fail
Multiple articles (here and here, for example) appeared in the press Wednesday echoing what we have been saying in for some time: that the OAS proposal for a Mission de Apoyo Contra la Corrupción y la Impunidad en Honduras (MACCIH) seems designed to fail, given Honduras's, and more particularly Juan Orlando Hernández's, history of meddling in the judicial system.
The indignados marches formed the context and motivation when Juan Orlando Hernández proposed the Sistema Integral Hondureño de Combate a la Impunidad y Corrupcion (SIHCIC). He made the proposal as an attempt to shut the indignados protests down.
At the same time he proposed a "national dialogue" to open up the process to improvement, but no part of the SIHCIC process involved actually generating concrete suggestions from the dialogues, and there was no actual legislative proposal or even a report resulting from them.
Hernández chaired the first several meetings, with groups usually allied politically with him, then turned the entire process over to a congressman to oversee.
The SIHCIC proposal has five basic components:
The proposal suggests nothing about judicial independence. It keeps the existing balance of power, tilted extraordinarily strongly towards the executive branch, and in fact, would reinforce it.
The indignados rejected this proposal precisely because it did nothing to further judicial independence. They continued to call for the establishment of a CICIH along the lines of the CICIG which has been successful in Guatemala.
However, some of the indignados, including a leader, Tomás Andino, believe that even a CICIH might not work. Andino said:
Because the indignados and other groups refused to participate in Hernández' dialogue, given its closed nature and lack of a mechanism for incorporating any results of the dialogues into legislation, Hernández eventually asked both the OAS and UN for mediators and facilitators.
The OAS sent John Biehl del Rio who met with many of the same groups that Hernández had, then met in turn with the indignados and other groups that had not participated in the dialogues. However, he was partisan from the start. He openly rejected the indignados' call for a CICIH and dismissed the opposition in Honduras in inappropriate ways.
As a result of his recommendations the OAS instead proposed, and Juan Orlando Hernández accepted, the Mission de Apoyo Contra la Corrupción y la Impunidad en Honduras (MACCIH), designed to take another two years to perform studies and make recommendations.
MACCIH, not unsurprisingly given John Biehl's antipathy for the indignados, parallels and expands on the SIHCIC proposal of Hernández. It calls for the formation of a set of international judges and lawyers to advise the Public Prosecutor's office and provide technical support to the investigative services. It uses the Centro de Estudios de Justicia de las Americas (CEJA) to write a series of reports and recommendations on the justice system in Honduras. It invokes the OAS's Mecanismo de Seguimiento del Implementación del Convención InterAmericana contra la Corrupción (MESICIC) to evaluate and recommend legal changes necessary to fight corruption and bring Honduras into line with the Inter-American Convention against Corruption. It also calls for the establishment of an observatory of the judicial system to monitor its progress.
A Woodrow Wilson Center report authored by Eric Olsen and Katherine Hyde pointed out nine weaknesses of the MACCIH proposal that, they say, "must be addressed if this and other efforts are to be more than mere window dressing".
For us the most relevant and pressing of their questions is this one, which we also have been asking:
We would go further and suggest that Juan Orlando Hernández himself, while head of the Honduran Congress, was one of those who "failed to act on the vast majority of recommendations" for judicial reforms. While head of Congress he initiated questionable procedures to remove four sitting Supreme Court justices because he didn't like their ruling on Model Cities. Why does anyone, including the OAS, think that suddenly this will change, that the Honduran government will now act to implement the suggestions?
The MACCIH proposal has won support from James Nealon, US Ambassador to Honduras, who immediately after its announcement tweeted his approval. But Foreign Policy magazine called it "more like a tool to appease the masses rather than an effective tool for reform." Carlos Ponce of Freedom House said recently:
Meanwhile, Judicial independence in Honduras and Corruption in Honduras were the topics of two hearings last week at the Inter American Commission on Human Rights (IACHR in English and CIDH in Spanish).
The government of Honduras boycotted the hearings. That should give those supporting the MACCIH pause; is there any will to examine these basic questions?
The indignados marches formed the context and motivation when Juan Orlando Hernández proposed the Sistema Integral Hondureño de Combate a la Impunidad y Corrupcion (SIHCIC). He made the proposal as an attempt to shut the indignados protests down.
At the same time he proposed a "national dialogue" to open up the process to improvement, but no part of the SIHCIC process involved actually generating concrete suggestions from the dialogues, and there was no actual legislative proposal or even a report resulting from them.
Hernández chaired the first several meetings, with groups usually allied politically with him, then turned the entire process over to a congressman to oversee.
The SIHCIC proposal has five basic components:
- first, a support committee for the Public Prosecutor's office to include both Honduran and international jurists that would audit the actions of the Public Prosecutor's office and aid in the pursuit of corruption
- second, a similar support committee to oversee the Consejo de la Judicatura, the group that disciplines judicial misbehavior
- third, a group responsible for the security of judges and their families
- fourth, an observatory of the judicial system involving academic and civil society members
- fifth, a business integrity group that would promote transparency and ethical standards for businesses and could propose rules and legislation to support them.
The proposal suggests nothing about judicial independence. It keeps the existing balance of power, tilted extraordinarily strongly towards the executive branch, and in fact, would reinforce it.
The indignados rejected this proposal precisely because it did nothing to further judicial independence. They continued to call for the establishment of a CICIH along the lines of the CICIG which has been successful in Guatemala.
However, some of the indignados, including a leader, Tomás Andino, believe that even a CICIH might not work. Andino said:
Guatemala has a relatively greater independence of powers than Honduras, which does not function as a democratic state...Here, a U.N. commission would be embedded in a corrupt system.
Because the indignados and other groups refused to participate in Hernández' dialogue, given its closed nature and lack of a mechanism for incorporating any results of the dialogues into legislation, Hernández eventually asked both the OAS and UN for mediators and facilitators.
The OAS sent John Biehl del Rio who met with many of the same groups that Hernández had, then met in turn with the indignados and other groups that had not participated in the dialogues. However, he was partisan from the start. He openly rejected the indignados' call for a CICIH and dismissed the opposition in Honduras in inappropriate ways.
As a result of his recommendations the OAS instead proposed, and Juan Orlando Hernández accepted, the Mission de Apoyo Contra la Corrupción y la Impunidad en Honduras (MACCIH), designed to take another two years to perform studies and make recommendations.
MACCIH, not unsurprisingly given John Biehl's antipathy for the indignados, parallels and expands on the SIHCIC proposal of Hernández. It calls for the formation of a set of international judges and lawyers to advise the Public Prosecutor's office and provide technical support to the investigative services. It uses the Centro de Estudios de Justicia de las Americas (CEJA) to write a series of reports and recommendations on the justice system in Honduras. It invokes the OAS's Mecanismo de Seguimiento del Implementación del Convención InterAmericana contra la Corrupción (MESICIC) to evaluate and recommend legal changes necessary to fight corruption and bring Honduras into line with the Inter-American Convention against Corruption. It also calls for the establishment of an observatory of the judicial system to monitor its progress.
A Woodrow Wilson Center report authored by Eric Olsen and Katherine Hyde pointed out nine weaknesses of the MACCIH proposal that, they say, "must be addressed if this and other efforts are to be more than mere window dressing".
For us the most relevant and pressing of their questions is this one, which we also have been asking:
The priority of the MACCIH seems to be assessment and recommendations for institutional reform. There is little question that institutional reforms are needed, but I know of at least two internationally sanctioned, highly credible assessments of Honduras's law enforcement institutions and justice system in the last four years, and their findings and recommendations are very sound. Yet the government of Honduras (both current and previous) failed to act on the vast majority of these recommendations. The question is whether it is really necessary at this point to carry out additional costly assessments and evaluations and again develop reform proposals when much of the work has already been done. Why not adopt the recommendations that have already been made by international bodies -- including ironically, the OAS just six months ago -- and get to work now.
We would go further and suggest that Juan Orlando Hernández himself, while head of the Honduran Congress, was one of those who "failed to act on the vast majority of recommendations" for judicial reforms. While head of Congress he initiated questionable procedures to remove four sitting Supreme Court justices because he didn't like their ruling on Model Cities. Why does anyone, including the OAS, think that suddenly this will change, that the Honduran government will now act to implement the suggestions?
The MACCIH proposal has won support from James Nealon, US Ambassador to Honduras, who immediately after its announcement tweeted his approval. But Foreign Policy magazine called it "more like a tool to appease the masses rather than an effective tool for reform." Carlos Ponce of Freedom House said recently:
"The solution is not making more reports, but bringing change to Honduras. We’re not talking about India or Brazil but a small country with lots of potential — but a lack of will to change. The families in power are in bed with factions in the government that also control the media. Corruption is linked directly to political parties, so you have to change the power structure."Nothing in MACCIH even seeks to addresses this fundamental problem. Without a demonstrated "will to change" there is no reason to expect MACCIH to bring about meaningful change in Honduras and more than previous studies cited in the Wilson Center report have.
Meanwhile, Judicial independence in Honduras and Corruption in Honduras were the topics of two hearings last week at the Inter American Commission on Human Rights (IACHR in English and CIDH in Spanish).
The government of Honduras boycotted the hearings. That should give those supporting the MACCIH pause; is there any will to examine these basic questions?
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