Thursday, March 1, 2012

Cat and Mouse With the Supreme Court

There's a cat and mouse game going on in Honduras between the Executive Branch and the Legislative Branch on one side, and the Supreme Court on the other.

The Executive and Legislative branches have teamed up to exert political pressure on the Court to reverse several of its findings of recent Honduran law.

That the Supreme Court is political should surprise no one. As we wrote in an earlier post, Heather Berkman's scholarly article on the subject makes it abundantly clear how politicized the judiciary is.

This is also manifest in the analysis of the Initiative For Peacebuilding of the European Union. Their Reform Without Ownership study in 2010 detailed the problems with the existing justice system in Honduras and how the International community could constructively engage with the current Honduran government to reform it.

Author Julia Schüneman wrote (p. 10):
An efficient justice system requires adequate resources, personnel selected based on merit, adequate structures and procedures to deliver services, sufficient intra-institutional coordination and a minimum of political interference. Honduras’ justice system does not fulfill these criteria.

Honduras’ judicial system is extremely politicized and not transparent. Its independence is severely undermined by pressure from the executive and the two main political parties.... The highest judicial instances are divided along partisan lines. There is strong political interference in the selection of judges for the Supreme Court (and other judges), with each administration changing a significant number of judges according to political preferences and bargaining over judge positions as “compensation” for electoral favours.

The recent history of governmental proposals to somehow stop the Supreme Court from making decisions the Executive and Legislative branches don't like exposes this politicization at its worst.

The Supreme Court decision on the Ley de Seguridad Poblacional is what concerns Honduran politicians the most. That law, passed in April of 2011, introduced a security tax retroactive to January 1 of that year. At stake is a lot of money already collected and sitting in the treasury.

The Honduran constitution (Article 96) is very clear that backdating of laws is illegal except in carefully defined cases. The Consejo Hondureño de Empresa Privada (COHEP) appealed the constitutionality of the law with the Supreme Court.

On January 31, 2012 the five justices of the Sala Constitutional initially found the law unconstitutional. The government appealed the decision and is awaiting the ruling of the full court's fifteen justices.

In the meantime, Lobo Sosa and Juan Orlando Hernandez are using public declarations to try and pressure the court to reverse the previous finding.

Marvin Ponce (Vice President of Congress) commented:
The security tax is the prized child of Pepe Lobo and Juan Orlando Hernandez to be able to take money and look for a solution to the problems of the country.

Because of this, Ponce tells us, Juan Orlando Hernandez has had Congress draft a law for a Constitutional Court which would be above the Supreme Court. Ponce continued:
The technicians of Congress are on this subject. There's a text written to present to the full [Congress] by a legislator as a law and we are working with it now.

Congressman Oswaldo Ramos Soto crafted the law, which would create the new Constitutional Court.

Juan Orlando Hernandez, head of Congress, went further, essentially putting the Supreme Court on notice not to make decisions against his desired legislation:
We are preoccupied because there has circulated a story that the Supreme Court wants to declare the security tax unconstitutional; this would be a terrible blow to the country in terms of the fight against delinquency. They also say that they wish to declare unconstitutional the last decree which is about the cleanup of the police, and that seems serious to us, also the model cities. I hope that these are nothing more than rumors because the country needs to move forward.

Rigoberto Chang Castillo, Secretary of Congress, assured La Tribuna that Congress has the authority to create an institution to watch over the Supreme Court:
Yes, we can, remember that when we approved the reform to the Ley de Seguridad Publica, we placed in it the creation of an institution that would supervise judges and magistrates.

At the same time, Lobo Sosa has been talking about how he'll appoint a commission of jurists to review the legal determinations of the Supreme Court to see if they're based in law.

"If we don't like your rulings, we'll supersede you" is what Lobo Sosa and Juan Orlando Hernandez are saying.

Now to see if the Supreme Court yields to the political pressure...

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