Wednesday, December 26, 2012

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

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

First up, the Colegio de Abogados de Honduras (CAH) which called Congress's firing of the Supreme Court Justices "an affront to the constitution" and "illegal".  As lawyers are wont to do, they backed it up with legal reasoning that does not need to be recapitulated here.  At the end of their statement was a call to the four lawyers named as replacement justices, all four of whom are members of CAH:
To our colleagues named in substitution for the legally elected, in support of the constitution and the laws we respectfully ask them to abstain from assuming said positions while the Supreme Court of Justice has not ruled on the appeals presented, otherwise you could be complicit [in the violation of constitutional order].

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

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

Finally, after more than a week, the US Embassy released its statement late Friday.  The Honduran press called it a press release, but it does not show up on the Embassy's website in the list of press releases.  Translating back from the Spanish, it seems to have read:
The Government of the United States shares the desire and efforts of Hondurans to strengthen the institutions responsible for public safety and justice, within the framework of the rule of law.
We are aware that concerns have been raised about the possible violation of the independence of the judiciary by the vote in the National Congress of Honduras on 12 December of the current year, to remove and replace four of the judges of the Supreme Court.

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 25, 2012

Lobo Sosa "Baffles" Taiwan Government

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

We sympathize: he often baffles us, as well.

The Foreign Minister of the Taiwanese government is quoted as saying
The bilateral relationship with Honduras remains “normal” and “solid” and “will not be affected” even if the country moves to develop economic and trade relations with China.

What sparked the comment? A statement published last week on the website of the Honduran Presidential Office. The website published this translation:
President Lobo Sosa confirms intention to open diplomatic relations with China

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

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

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

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

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

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

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

But they thought they had assurances that was all Honduras was contemplating. The Lobo Sosa statement, however, calls for establishing diplomatic ties, and that would mean recognizing the government of mainland China, which is more of a sticking point. As the Taipei Times article puts it
Lin said that Taipei does not consider it acceptable for it’s diplomatic allies to recognize China while maintaining diplomatic ties with Taiwan.
“We don’t think double recognition is acceptable and we don’t think that will happen,” Lin said.
The principle guiding President Ma Ying-jeou’s (馬英九) “flexible diplomacy” has been that Taiwan and China do not attempt to poach each other’s diplomatic allies, Lin said.

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

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

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

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

But it isn't really just the statement posted on Lobo Sosa's website that is at issue: it is what he said to the press about the topic. On December 20, La Tribuna quoted his responses to reporters at a press conference:
“We are free, we can have have relations with any country in the world”

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

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

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

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

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

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

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

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

Thursday, December 20, 2012

Congress Moves to Consolidate Power

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

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

Let's recap:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 17, 2012

Supreme Court Chief Justice Role in Congressional Purge

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

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

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

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

But his actions say otherwise.

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

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

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

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

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

Saturday, December 15, 2012

Ducktatorship in Honduras

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

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

This story was the part of the front page of the web edition and print edition before El Heraldo removed all links to it from their front web page.
What I see is that the next person to occupy the presidency will be a reincarnation of General Tiburcio Cárias Andino.

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

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

Leitzelar asserted that now that he's subjugated the Supreme Court to the Legislative branch,
All that needs to happen for what Edmundo Orellana said is to reform the article that prohibits re-election [of the president] and if you have succeeded in arranging it properly, you have arranged for a constitutional dictatorship.

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

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

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

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

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

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

Lobo Sosa showed his complete disdain for an independent court, as called for in the Honduran constitution, when he told journalists in a Christmas lunch yesterday:
If there is a law there [in review by the court], before issuing an opinion they should at least consult with those who wrote the law, or those who approved the law; I think [what happened to the Supreme Court justices] is totally just because the powers are independent, but complementary.

Lobo Sosa went on to add:
We should understand that here no one is above the people, the first power of the State is the Legislative branch because it is the one elected.

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

The PINU party released a statement Saturday that read in part:
These decisions [of the Congress] are characteristic of dictatorial governments that seek control of the democratic institutions through intimidation and abuse of power.

Or as German Leitzelar put it:
When we have an animal that quacks like a duck, has feet like a duck and feathers like a duck, then its a duck

Thursday, December 13, 2012

Congress vs. the Supreme Court: The Power Grab

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

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

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

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

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

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

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

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

EIGHTH. That the complementarity of state powers specified in Article Four of the Constitution be understood or interpreted as the unit of criteria that should exist between the powers about state policies, which must respond to the national interest or common good. Public safety, as state policy, is a responsibility divided between the three powers in the context of their constitutional powers.
We see that things go off the rails here in the eighth paragraph. There is a long standing dispute between Congress and the Supreme Court in Honduras over who has the right to interpret the constitution.  Congress believes it is the sole branch of government that can interpret the constitution, and in 1999 amended article 218, paragraph 9 to give themselves exclusive power to interpret the constitution (also embodied in article 205 paragraph 10).  However, in May, 2003 the Supreme Court ruled that the changes to article 218 were unconstitutional, giving itself the power of judicial review of all interpretations of the Constitution.  Its ruling also invalidated article 205 paragraph 10. 

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

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

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

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

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

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

Having asserted this contested authority, the congressional report goes on to make what we presume Congress thinks is the review of "administrative" actions they claim guided the firings:
NINTH. In seeking to strengthen the National Police and give the Honduran people higher levels of security, the Executive Branch  and Legislature have made diverse ​​efforts, one of which is the process of implementing a reliable, expeditious and feasible method to purge the National Police as the body responsible in its various branches, to prevent, investigate and combat crime, to whose purpose and aim was oriented decree No. 89-2012.

TENTH. The Constitutional Chamber, in a four to one vote, with the dissenting opinion of Justice Oscar Fernando Chinchilla Banegas, decided to grant the appellants' appeal despite it being full knowledge of the members of that Board that the contested regulation was not in effect when issuing the resolution.
ELEVEN. The [finding of] unconstitutionality requires as a prerequisite that the challenged provision is in effect and the main effect is granted when the action is the repeal of that Act.
Here, Congress complains that the Constitutional Branch of the Supreme Court acted after the law had expired. They assert in paragraph eleven that a law must be in effect to be found unconstitutional. 

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

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

In a case that can be considered comparable in the United States, which has similar rules, the US Supreme Court ruled in 1964 that the 1798 Sedition Act, which expired in 1801, was unconstitutional.
TWELFTH. The decision issued by the Constitutional Branch, in our judgement, is not consistent with the security policy implemented by legislative and executive powers and leads to serious damage to the state because it means a setback in the progress made in the fight against crime and exposes the security of people and their property, leaving the State open to the possibility of expense of lawsuits by members of the National Police who have been separated pursuant to the Decree.
This is where Congress treads into reviewing the judicial behavior of the court, not its administrative actions, acting outside the Constitution and law of Honduras. 

The consistency of a decision with the security policy of a government is not a criterion for review of administration; it is a review of the judicial action.  This is pure politics and is Congress overreaching its powers and ignoring the constitution just as it did in 2009, weakening democracy even further in Honduras. 
This special [Congressional] commission in executing the mandate authorized by the National Congress supported by article 205, numbers 20 and 21 of the constitution of the Republic, recommend to this power of state that it analyze and evaluate the above events in their totality as put forth in the present report and proceed according to the criteria of this august body.

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

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

Not signing:
Olman Maldonado
Samuel Martínez
Congress did yesterday what it threatened to do in 2003 with the judiciary, and what it did do in 2009 with the executive branch: it grabbed power, damaging the rule of law and separation of powers in Honduras.

Wednesday, December 12, 2012

Appeal Filed

The Bar Association of Anti-Corruption Lawyers in Honduras has brought a legal appeal of Congress's dismissal of four Justices.  Their lawyer said he brought the action because the people who should have, the Public Prosecutor Luis Rubi, and his deputy prosecutors Danelia Ferrera and German Enamorado, had failed to act.  He asked:
Where is Luis Rubi?  Where is Danelia Ferrera?  And where is the prosecutor for human rights (German Enamorado)?
Luis Rubi demurred that he would do nothing until he had a copy of the Congressional findings and the text of the motion which he would then analyze, and act based on his office's findings.  

The Bar Association of Anti-Corruption Lawyers' appeal is based on the law, on the fact that Congress does not have the authority nor was ever granted the right under the constitution of Honduras to remove justices from the Supreme Court.  They wrote that the Congressional resolution separating the four justices violated the Constitution of the republic.

The Four Justices Respond

This afternoon the four justices that Congress voted to dismiss responded with a written statement, which they read.  The four justices, José Antonio Gutiérrez Navas, José Francisco Ruiz Gaekel, Gustavo Enrique Bustillo Palma and Rosalinda Cruz said Congress lacks the authority to remove them from office.  They called the process that Congress used "illegitimate, illegal, and unjust".  The justices said it was clear from the language of the 5 page report submitted by Rigoberto Chang as head of the commission to investigate the justices that the charges were based on their judicial rulings, not their administrative conduct, and that as such, this was a political maneuver.

They defended their rulings, the ones Congress took issue with, as made in accord with legal precepts, the Constitution, treaties and international agreements and the Constitutional Justice Law and that their rulings were made in a reasonable fashion with no pressure from anyone.

They noted that the legal argument that Congress pretended to use to dismiss them had no legal validity.  They point out that in 2011 Congress gave to the Chief Justice the power and right to do all administrative reviews of the court.  Oops.

They said:
Congress violated the principle of separation of powers contained in the Constitution of the Republic and has abruptly burst the jurisdictional function of the Judicial Branch and that has produced a change in the constitutional order because they do no have the authority to do so.
It does no good for our beloved country
They announced that the would resort to the courts for justice because their constitutional rights to due process, to be heard, and to a defense, among other guarantees nationally and internationally recognized, had been violated.

Congress Votes to Dismiss Four Justices

At 4 am this morning the Honduran Congress voted to dismiss four justices of the Constitutional Branch of the Supreme Court, finding "administrative cause" for them to be dismissed.  

The cause?

The report of the congressional commission indicated that the decision of the Sala Constitucional of the Supreme Court that the law to cleanse the police was unconstitutional was "not in line with the the security plans of the Executive and Legislative Branches".

Thus does the principle of separation of powers suffer its next blow. If anyone is unaware of the imbalance in Honduran governance, where the Congress already claimed unconstitutional power to replace the president and now has claimed such power over the legislative branch, this should be the wake-up call.

In a floor speech congress member Jeffrey Flores called the actions of the four justices "negligent" and called their dismissal "patriotic".

As if that was not illegal enough,  Congress named German Vicente García, Silvia Trinidad Santos, Victor Lozano, and Elmer Lizardo as replacement justices and swore three of them in. Congress plans to swear the fourth in next Monday when he returns from his ranch in Olancho.

Supreme Court judges in Honduras are selected by Congress from a list of candidates put together by a nominating committee constructed to represent all sectors of society (in theory).

The four people named as replacement judges were reportedly on the initial list of 45 candidates proposed by the last nominating committee.

There is no reported reaction from the Supreme Court or the Executive Branch so far.  Ramón Custodio, the Human Rights Commissioner for Honduras, said
It is sad that the National Congress legislated this morning to break the constitutional order in the country.

Tuesday, December 11, 2012

Honduran Congress Moving to Dissmiss Supreme Court Justices

Rumors are flying tonight in Honduras. 

El Heraldo reports that the military have been called in by president of Congress Juan Orlando Hernandez to guard Congress in an extraordinary session this evening while it debates a report from the commission appointed yesterday to make recommendations about the Supreme Court in Honduras. 

El Heraldo reports that the commission recommended removing 4 to 7 of the justices.

Marvin Ponce, vice president of Congress, told the press that the removal of justices is the starting point of the discussion this evening. 

The decision to proceed, according to Ponce, comes from an imminent political crisis resulting from the primary elections carried out a month ago, combined with the Sala Constitucional's declaration that the Police Purification Law is unconstitutional.

Ponce's understanding is that "there is conflict at the highest levels...I understand that the vacant justice positions will be divided between Yani [Rosenthal] and the National Party.  In play is the subject of the recent elections, powerful groups that want to move pieces to stop the process." 

Ponce went on to tell El Heraldo that to not dismiss the justices would be to imperil the candidacy of Juan Orlando Hernandez, the head of Congress.

But wait a minute. Ponce has spread wild rumors before that had no basis in reality, so we need to take his information with a grain of salt.

First, Congress does not actually possess the power to remove a justice of the Supreme Court, who can only be removed for legal cause. 

Mauricio Villeda, newly elected presidential candidate of the Liberal Party, agrees that Congress hasn't got a legal leg to stand on. 

Roy Utrecho, of the Public Prosecutor's office, says what Congress is trying to do is an act of treason. 
Finally, Yani Rosenthal denies any involvement.

Ramon Custodio, commissioner of Human Rights in Honduras, commented that
The abuses that they are committing in the name of the people of Honduras from the National Congress are a terrible example for Rule of Law where you have an independence of the powers and things are worked out within the framework of institutionality.
Wenceslao Lara, Congressman for the Department of Cortes said:
We are the most corrupt [country] in Central America right now and one of the most corrupt in Latin America.  They're the incompetent ones, they're the ones doing harm; they're putting us in a situation that the people of Honduras don't want......
I call on the President of the Republic to reflect, and on Congress to stop this diabolical attempt that they are making against Honduras.  They are the ones who are incapable of governing the country at this time.
As of midnight in Tegucigalpa Congress was still in session.

Congress To Censure Supreme Court

Late yesterday evening the Honduran Congress approved a bill that authorizes them to "investigate" the conduct of the four justices of the Constitutional Branch of the Supreme Court that ruled that the Law for the Purification of the Police was unconstitutional.  The motion was presented by National Party Congressman Rodolfo Zelaya, a member of president of Congress, Juan Orlando Hernandez.  Zelaya wrote:
"[I] formally present a motion to appoint a special commission to investigate the effect of the administrative conduct of the judges of the Supreme Court, particularly the Constitutional Branch on all matters relating to its administrative behavior in the area of public safety, complementing the efforts that Congress has done on the Constitution, issuing special laws to give greater security to the citizens.  It should present a detailed report to the plenary [of Congress] and other legal effects."

Zelaya cites Article 205, paragraph 20 as authorizing the investigation.  Article 205 lists the functions of Congress.  Paragraph 20 grants it the power to approve or disapprove of the administrative action of the Executive and Judicial Branches of government.  Notably lacking is the power to investigate the actions of either of the other two branches as they act within their purview, which is what this motion calls for.  Even paragraph 21, which authorizes Congress to appoint commissions to investigate matters of national interest does not contemplate investigating the other branches of government.

Not all of Congress liked the motion.  The head of the Liberal Party, José Alfredo Saavedra said:
This is a bad message both to the nation and internationally, where Congress wants one branch of government to submit to others; this flagrantly violates what is set in the Constitution of the Republic and specifically with the independence of powers.....This is flagrant intimidation against another branch of the government called the Judicial Branch.

German Leitzelar bluntly told Congress that his party, PINU, would not support the law because it was transparently about investigation the court's judicial conduct, not its administrative conduct, and that was improper.
Another Liberal Party Congressman, Wenceslao Lara, recommended that instead of passing the motion, Congress appoint itself better lawyers so that they don't approve such poor quality laws.

Roy Urtecho, attached to the Public Prosecutor's office said that the Congressmen that approved the motion were in danger of commiting the crimes of treason, abuse of authority, and interfering with the operation of a government official.
The [Constitutional] Branch is the final and definitive interpreter of the of the Constitution, and it is the branch which exclusively determines unconstitutionality....In consequence, you should understand that whatever pronouncement, indication, or objection the other branches of government have, on these juridical positions, interference in the exercise of the powers given by the Constitution breaks the constitutional principle of separation of powers."
To approve the review of the conduct of the Judicial branch with respect to things that have nothing to do with the conduct or administrative function [of the Judicial branch] implies opening the door to a kind of political judgement...which is not contemplated in the actual Constitution.
Urtecho goes on to say that such conduct puts Congress at the edge of illegality.

Congress voted 63 - 2 with two abstentions to approve the motion, only half of Congress having been present.  Congress then named a 9 person commission, consisting of 4 National Party members, 2 Liberal Party Members, 1 Christian Democrat, 1 PINU Party member.  German Leitzelar, who was appointed as the PINU party representative, said that 5 of the commission members are supporters of Juan Orlando Hernandez, the National Party presidential candidate for the 2013 elections.  Leitzelar said that he would not be part of the Congressional commission.

The commission will return a motion of censure today.

Saturday, December 8, 2012

Honduran President Threatens Supreme Court: Court Fires Back

Porfirio Lobo Sosa is sending little "love messages" to the Supreme Court via twitter, accusing the court of being on the side of criminals.

In a stylish move, he did this by reference to Romans 13:3. For those less familiar with the New Testament than the Honduran president, here's what it says:
For rulers are not a terror to good works, but to evil.  Wilt thou then not be afraid of the power?  do that which is good, and thou shalt have praise of the same....
In case anyone is unclear on the implications, here's what Lobo Sosa tweeted:
Romans 13:3 Why the justices are not there to instill terror in those who do good, but rather those who do bad? Do they want to not fear authority?

Tweeting not being enough to get his way, Lobo Sosa is pushing forward in his quest to get around the Honduran Supreme Court, which has outraged him by ruling preliminarily that his Law of Police Purification was unconstitutional

Lobo Sosa has asked Juan Orlando Hernandez, the president of Congress, to fast-track legislation written by the Executive Branch that would approve Plebiscites and Referenda under a simplified system.  Once that is in place, he says, he will take the question about the purification law directly to the people.

Procedurally, because this would require amendments to various clauses of the Honduran constitution, Lobo Sosa has to have initial passage of the law fast-tracked before Congress adjourns in late December. That would allow time for the law to be voted on a second time in the next session of Congress, as required in the Honduran constitution, before Lobo Sosa leaves office. Juan Orlando Hernandez says it is ready to go next week.

While the text of the law is not public, César Ham, head of the cabinet ministry dealing with agriculture, says the law is all written and ready to go. 

According to Ham, the proposed law would allow recall of Supreme Court Justices by plebiscite or referendum, once it's proven they acted contrary to the interests of the state (Lobo Sosa's preferred standard, rather than acting to safeguard constitutional guarantees).

This would mean that a law sponsored by the Executive Branch would allow for recall of a sitting Supreme Court Justice based on popular vote in a plebiscite or referendum, which can be initiated by Congress, the Executive Branch, or a critical mass of voters.

César Ham already has called on citizens to demonstrate in front of the Supreme Court building to protest the Constitutional Branch's preliminary ruling against the police purification law. He called into question the patriotism of the four justices who decided the police cleanup law was unconstitutional.

In a press release, the Supreme Court reacted by calling on Lobo Sosa to curb his criticisms aimed at the Judicial Branch and respect the separation of powers:
We observe with particular preoccupation the statements made in recent days by both the President of the Republic, Porfirio Lobo, as well as the director of the National Agrarian Institute, César Ham, which constitute a direct threat against the full Supreme Court, and intend to induce this jurisdictional entity should declare without merit the appeal of unconstitutionality interposed against the confidence tests in the Ley de Depuración Policial, because the Executive branch believes that if the Supreme Court does not resolve it this way, we would be acting in favor of the criminals.

The Association of Judges for Democracy also called on Lobo Sosa to cease his attacks and respect the separation of powers.  So did the Catholic church.

And then there's the most surreal moment: the endorsement of Lobo Sosa's position by former President Manuel Zelaya, who explicitly compared the current situation to the Supreme Court's opposition to the "cuata urna", the conflict that triggered the coup of 2009.

Mel isn't the only one seeing echoes of 2009 here: in a rambling reaction to press coverage, Lobo Sosa hinted that there was a conspiracy against him.

Lobo Sosa took objection to El Heraldo's coverage of the court's statement, which included a lesson on Article 4 of the constitution, which enshrines the separation of powers.

Commenting on that, Lobo Sosa announced that the paper's owner, Jorge Canahauti, was part of conspiracy to stage a coup d'etat against him:
There's a conspiracy and I invite you to read El Heraldo and look at La Prensa, read them, that of yesterday and today, the front page, and I'm not disrespecting anyone, I am saying the truth, on the front page, and don't think Don Jorge Canahauti that I don't know who you're meeting with, and with whom you're meeting, I'll only tell you the following:  what you are doing is dangerous for the nation and will generate a problem that we don't already have which we might have.
I will only say the following:  It won't work, it will be seen as very bad.  Why? because in the end, look, over there are the citizens, it is they who will judge, and this question Are they in accord, the people, or not with the police cleanup?  That's where it's going, and nothing will keep this question from the Honduran people; many thanks my friends, and the Congress of the Republic will grab the glory and give the right to the people to be consulted YES or NO, it must follow the plebiscite...if they are in favor or not with the police cleanup.

So what comes next? the full Supreme Court still has to rule on the constitutionality of the law. If Lobo Sosa thought he would intimidate them, that seems to have failed. So his henchman, Juan Orlando Hernandez, will push forward with a law on referenda and plebiscites that is recognizably close to what brought the court and Zelaya into conflict in 2009, explicitly so that Lobo Sosa can get the people to impeach justices who issue rulings he dislikes.

Or, Juan Orlando Hernandez could take the advice of Mel Zelaya and convene a constitutional assembly. Seems like a lot quicker way to rewrite the constitution than the current administration's patchwork of unconstitutional laws.

Sunday, December 2, 2012

Lobo: Supreme Court Is Enemy of the State

Porfirio Lobo Sosa said over the weekend that the Supreme Court, whose Constitutional branch recently concluded that the police cleanup law is unconstitutional, is an enemy of the state. 

Speaking after the ruling, Lobo Sosa said:
"This is like fighting for a way, but there is an enemy of Honduras there, and everything that we do it overturns, as in the case of the Regiones Especiales de Desarrollo or model cities; it's like the court is playing against the country....The police cleanup will continue despite the opposition of the Supreme Court."
 OK, the finer points of constitutional separation of powers seem to be beyond the Lobo Sosa administration's grasp, but that's hardly news for any of our gentle readers. But there is more to this story, and the more is one word: intimidation.

What Lobo Sosa is attempting to do is to shame the whole Supreme Court, which must still vote on the police cleanup law because the Constitutional branch's vote was not unanimous.  In theory they have 10 days to do so.  Until they vote, the cleanup goes on.

After calling the court out as enemies, he later said that he was confident that Chief Justice Jorge Rivera Avilés would give the Executive branch time to remedy the parts of the law that affect the accused's due process rights.

This is, of course, a tacit admission by Lobo Sosa that the law as written actually is flawed.

As if to underline his willful ignorance of the separation of powers, Lobo Sosa told HRN radio later in the day that he was urging the president of Congress, Juan Orlando Hernandez, to push through the Referendum and Plebiscite law so that the people can decide if the government should continue with the police cleanup or not. 

Lobo Sosa doesn't seem to be acknowledging that an unconstitutional act passed by plebiscite or referendum would still be unconstitutional and subject to court review under the Honduran constitution.

(This is a situation not unlike the one that led to the coup d'etat overthrowing ex-President José Manuel Zelaya. Then, based on Zelaya's interpretation of existing laws, he wanted to put in place a public poll-- much less than a referendum or "plebiscite"-- about whether or not to convene a constitutional convention.) 

The current Executive Branch (under Lobo Sosa) and Legislative Branch (led by Orlando Hernández) have had particular problems with writing legislation that preserves people's constitutional rights. 

No one, not even the Honduran Supreme Court, would argue that there isn't corruption in the police, and that it must be removed.  Instead of doing things the easy, unconstitutional way, the Lobo Sosa administration is being urged to do it in a legal, somewhat harder, fashion. 

After all, lie detector tests are fallible, drug tests can record false positives, and someone accused of corruption must be able to defend themselves against the charge, if it's false.

So says the Honduran constitution. That's the opinion of the Sala Constitucional of the Supreme Court.

Which the President of Honduras says makes the Supreme Court the enemy of Honduras.