Wednesday, March 26, 2014

Hernández Packed Court Goes Political

The Honduran Supreme Court, or more properly, the Constitutional Branch of the Supreme Court, packed with National Party supporters while Juan Orlando Hernández was head of Congress, paid a dividend yesterday by issuing a blatantly political opinion, with no legal argument to back it up.

The case has its origins in the November, 2013 elections for Mayor of San Luis, Comayagua.  Leny Flores Suazo of the Liberal Party was running against Santos Iván Zelaya Chacón of the National Party. 

Both candidates declared themselves the winner, forcing the Tribunal Supremo Electoral (TSE) to recount the votes.  But recount in Honduras does not mean what you think it means.  A "recount" in Honduras entails just re-tallying the votes already recording on the tally sheets, not recounting each vote.  The Tribunal Supremo Electoral has maintained that this is the only recount mechanism allowed under its regulations. 

After the recount, the TSE declared the election a tie. 

The candidates then both voluntarily agreed to flip a coin, and whoever won the toss would assume office.  This procedure is called for under Honduran law, if both candidates voluntarily agree to it.  Leny Flores Suazo won the coin toss, and the TSE formally declared him the winner of the election.  He was given paperwork by the TSE naming him the winner.  He was sworn in to office on January 27, 2014.

More than a month later, the National Party candidate appealed to the TSE to declare the election null and void and call for a new election. 

After the TSE turned him down, he appealed to the Supreme Court alleging there was no transparency in the recount process. We tend to sympathize with Zelaya Chacón, because the "recount" is actually pointless, unless you believe a simple math error, rather than the original vote counting, is the problem. But it isn't particularly impenetrable: the TSE adds the numbers a second time.

The Constitutional Branch accepted the case, and following usual procedure solicited an opinion from the Public Prosecutor, Oscar Chinchilla. He is a former Supreme Court justice himself, and the only justice that Hernández kept in the Constitutional Branch when he replaced the other four. 

Despite these ties, Oscar Chinchilla actually concurred with the TSE, arguing that what it did was correct and in accordance with the Electoral Law and the Law of Political Parties, which called for the the coin toss in the case of a tie if both parties agreed to it. There is no dispute of their agreement to abide by the results of the coin toss.

The Constitutional Branch, however, unanimously rejected the Public Prosecutor's opinion and found against the TSE. 

They ruled that the TSE violated the transparency requirements by not immediately consulting the original ballots themselves, rather than the tally sheets, and this failure violated Zelaya Chacón's rights to due process even before the coin toss happened. 

They reportedly wrote, in part:
It is clear to this Constitutional Chamber that the Supreme Electoral Tribunal has violated the political rights of the complainant, adopting resolutions lacking sufficient motivation, lacking the accuracy of the procedure.

But this is where the train left the tracks.  Rather than order the TSE to reconsult the ballots, or to hold a new election for mayor if the original ballots were no longer available (which is likely), they wrote:
Because of all the reasons previously cited, the appeal placed by Mr. Eneas Portillo Cabrera for Mr. Santos Iván Zelaya Chacón, should be granted with the effect that it restores to him full possession and exercise of his political rights, in such a manner that he can exercise for the rest of the time allowed, the job of Mayor of the town of San Luis, department of Comayagua.

The court simply declared Zelaya Chacón the winner, with no constitutional or legal basis provided for such a ruling, and awarded him the election.

Flores Suazo is reported to have said:
So far, it looks like in Honduras, the Supreme Court imposes Mayors [on towns] and sets aside the resolutions of the Election Tribunal.

This is exactly what happened.  Neither every one's due process rights nor the people's votes to determine the outcome of the election were preserved by this ruling.  Why even bother to hold elections?

But that's not the end of this story.  Flores Suazo called on Mauricio Villeda, his party's head of its Congressional delegation.  He has received the unanimous support of the Liberal Party congressional delegation.  Villeda told the press:
The Liberal party was surprised and is angry by the legal decision handed down by the Constitutional Branch of the Supreme Court concerning the case of the Mayor of San Luis.  This election was a tie and was decided by a coin toss.  Afterwards the Constitutional Branch got involved; listen well to what I am saying:  concerning election law, where the highest authority is the Supreme Election Tribunal.   This has surprised us and we don't want a precedent like this to exist in Honduras.

When asked who might have pressured the court, Villeda said:
Possibly various people from the National Party because they have replaced a Liberal Party Mayor.  Sufficient corruption exists already in this National Party government for there to also be corruption in election business.  We must make it clean and only the social communications media can help...

Villeda went on to indicate that this will become an issue in the alliance in Congress between the National and Liberal parties, saying that what the Liberals enabled in Congress, they can just as easily make impossible by breaking the alliance.

The Liberal Party has indicated that once they have had time to study this decision, they will appeal it to the full Supreme Court, but in the meantime, that court has imposed a mayor who was not elected on San Luis, Comayagua, for political, not legal, reasons.

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