Tuesday, December 21, 2010

Justice Delayed for Honduras

In light of statements that the Procuraduria General of Honduras is happily poised to appoint a "defender" for José Manuel Zelaya Rosales, so his trial can proceed without waiting for him to actually participate, it is especially timely that today also brought news of a visit to Honduras by a non-partisan international body monitoring the Honduran judiciary.

The news is not good.

La Tribuna reports that the Comisión Internacional de Juristas (CIJ)-- International Commission of Jurists, in English-- visited Honduras between December 6 and 10 of this year. The CIJ concluded that its opinion registered in 2003, that
the Judicial system of Honduras “is permeated with extreme partisan polarization",
still is valid; and that in 2010,
"despite the efforts realized by NGOs and the international community, the advances are few and the majority of recommendations have not been followed."

As we noted during the heat of last summer, changes undertaken in the Honduran legal system in the last decade were intended to shift the Honduran legal system from an inquisitorial to an adversarial system, in which the rights of the accused include, among other things, the presumption of innocence.

These reforms require Honduran judges to change their role from zealously pursuing evidence themselves, to assessing arguments by prosecutors and defenders. Inquisitorial systems do not generally include a presumption of innocence, and in our view, it is this change that has not fundamentally been absorbed in Honduran legal proceedings, which still appear to operate on the until-recently familiar inquisitorial model.

For those of you who don't quite get the distinction-- which, based on reading Mary Anastasia O'Grady's recent wad of words about Honduras, includes columnists for some of our major newspapers-- under an adversarial system there is a presumption of innocence, meaning the accusers or prosecutors have to demonstrate their case.

"Where there's smoke, there's fire" may be a good traditional folk saying-- but it ain't the law of the land, not in the US, and not (anymore) in Honduras.

(O'Grady's problem is confusing the presumption of innocence, which is uniform in US legal practice, with the existence of different standards of proof in criminal and civil cases. Criminal cases use a standard of proof "beyond a reasonable doubt". Civil cases-- which are differentiated from criminal cases because the state is not one of the parties, and the outcome is awarding damages, not jail sentences-- usually use a standard of "preponderance of evidence". As a result, while civil cases also incorporate the common law "presumption of innocence", meaning the accusers have to make a case, once they have done so convincingly, it may be up to the accused to refute the arguments made. The reason why OJ Simpson could be found liable in a civil action is that there was a different, easier to reach, standard of proof-- not that he started out presumed guilty. At least not legally. While expecting anything sane from O'Grady is probably too much to ask, her belief that the trumped-up charges against Manuel Zelaya were not subject to the criminal legal code of Honduras simply shows how little she knows of Honduran jurisprudence. But it beggars belief that she doesn't understand the US legal system.)

Which reminds me, back to the primary topic here: in 2003, the CIJ singled out as an example of extreme partisanship the procedures for the appointment of Honduran Supreme Court justices:
“A clear example of this partisanship can be observed in the election of magistrates for the Supreme Court. While the procedures for selection anticipated the participation of diverse sectors of civil society and the political task, the election of those magistrates had as a result a Court divided along lines of political affiliation, with a majority clearly identified with officialdom and a minority in opposition."

A press release summarizing the current findings of the CIJ can be downloaded (Spanish only) from their website. The CIJ noted that the coup exacerbated previously identified weakness of the judicial system, pointing to an increase in impunity in violations of civil rights and a lessening of judicial independence.

The actual report is worth reading in full. In item 6 it goes to lengths to argue that "the restoral of constitutional order doesn't come about simply by convening and carrying out general elections":
The return to democratic legality demands identifying the responsibility of the authors [of the disturbance of constitutional order], without prejudice to other means necessary for reconcilation as an element of co-existence; in addition, according to international legal doctrine it is impossible to legitimate a coup d'etat by means of de facto measures or the development of apparently constitutional arguments about the de facto doctrine that contradict the same principles of democracy and the International Law of Human Rights.

As we noted last summer, the CIJ has been quite critical of judicial progress in Honduras since it began monitoring the attempts to modernize and professionalize the legal system.

Since nothing has improved, it is hardly surprising that the CIJ concludes that things are bad. But it is heartening to see clear endorsement of the need to address impunity and the targeted killings of women, lawyers, and journalists advanced by an international body that is not afraid to say that a coup cannot be put behind simply by recognizing an election.

It is a message the US would do well to heed.

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