Military Policing

The Honduran constitution spells out the role of the military: what they can and cannot do.

Juan Orlando Hernandez, head of the Honduran Congress with presidential aspirations, wants to change that. He assigned a committee of legislators (Mario Pérez, Oswaldo Ramos Soto, German Leitzelar, José Alfredo Saavedra, Augusto Cruz Asensio y Marvin Ponce) to formulate an "interpretation" of the constitution that will use Article 274 of the constitution to grant policing power to the military.

There's a real problem with this.

Its unconstitutional.

When Congress wrote a constitutional modification that granted it the sole power to interpret the constitution, which is what is proposed here, the Honduran Supreme Court ruled that change unconstitutional. The decision said that the Supreme Court itself is the final authority on the interpretation of the constitution. In retaliation, for years Congress has delayed publication of that decision, but it nonetheless is law. Three Justices of the Supreme Court chose to speak out and remind Congress of the law on Tuesday.

Articles 272 and 274 of the Honduran constitution define the role of the military. Article 272 reads:

The Armed Forces of Honduras is a National Institution of permanent character, essentially professional, apolitical, obedient and non deliberative. It is constituted to defend the territorial integrity and the sovereignty of the Republic, to maintain the peace, the public order, and the dominion of the Constitution, the principles of free suffrage and the alternation in the exercise of the Presidency of the Republic.

To cooperate with the National Police in the conservation of public order to the effect of guaranteeing the free exercise of suffrage, the custody, transport, and vigilance of the electoral materials and all the other aspects of the security of that process, the President of the Republic shall place the Armed Forces at the disposition of the Supreme Electoral Tribunal, from one month before the elections, until the decision of the same.

Article 274 expands on other missions that the Armed Forces can have. These include education, agriculture, environmental protection, road building, health, and agricultural reform. Under this article, the military may cooperate with the institutions of public security (aka, the police).

All of these additional missions require a request from the appropriate Minister of state for the military to assume the role. In the case of cooperating with the police, they must be asked to do so by the Security Minister. They cannot act as police, only in conjunction with police.

In the United States we have a strong tradition, indeed a legal mandate, that says the military may not be used for civilian law enforcement except where expressly authorized by the Constitution or an act of Congress. In the debate over the ratification of the US Constitution, the Federalists argued that the military should not be used against the civilian population, ever. The legal foundations are embodied in the Posse Comitatus Act of 1878.

In 1985, in Bissonette v. Haig, the US 8th Circuit Court wrote:

Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights.

Honduras has no such tradition. Civilian rule of the military is an aspiration in Honduras, one that was emergent over the two decades before the 2009 coup. Certainly the changes introduced with the 1982 constitution were an attempt to subject a strong military to a weak civilian rule, but the 2009 coup has brought this power struggle back to the limelight.

A change like the law proposed by the Honduran Congress would be step backwards, reinforcing the erosion of civilian control over the military that was set in motion by the Honduran coup. It is one among many continuing impacts of a coup that has not really ended.

Taxes-gate

A new omnibus tax law (decreto 17-2020) was published Monday in La Gaceta, the official organ whose publication makes laws legal. La Tribuna reports that on reading the published law, which they passed just before their Easter break, Congress was astonished to see changes in no fewer than nine articles. La Tribuna tells us that those most amazed were the committee that assembled the final version of the bill after all the changes and amendments were collated. The revision committee ("comisión de estilo") , consisting of German Leitzelar, Oswaldo Ramos Soto, and Rigoberto Chang Castillo, denies it made these changes in the version of the bill it sent to the President.

Earlier today, Secretary of Congress, Rigoberto Chang Castillo, said the only difference is in Article 15, where they left off the exoneration of payment for raw materials imported for the manufacture of medicines. Chang said of the publication of the new law in the Gaceta:

"Any doubts, any error, or omission there is in the publication of this law, the only person responsible is Rigoberto Chang Castillo, and we are willing to clarify the doubts, errors or omissions....There was no ill will nor manipulation, nothing like that, what happened was that a paragraph was left out of Article 15 and that will be rectified."

However, in later stories, La Tribuna quotes Congressman Marco Antonio Andino as finding errors in Articles 15, 16, and 19. Marvin Ponce, fourth Vice President of Congress and a UD party member, said,

"It's deplorable that at least three articles were disrupted...one of them is the revision presented by Congressman Marlon Lara so that supplies to produce medicines by Honduran companies would be exonerated, including, we said here (in chambers), that medicines for animals would be exonerated, but in the publication it's different and the exoneration isn't included."

Also missing was a motion that exonerated those owing back taxes of the fines and surcharges on them, and the tax on rental units was supposed to be five percent, starting with luxury rentals of 15,000 lempiras, but was printed as a 10 percent tax. Ponce indicated that the printed version also left out exoneration of fines and surcharges for those with a debt to the agricultural development bank, BANADESA.

Ponce continued,

"There is no confidence of that approved by the members in open session, the true law has been disrupted by the revision committee or by the people who sent this document to the Executive or in those instances."

German Leitzelar, a member of the revisions committee said

"we are reviewing La Gaceta and saw that the document of ours does not agree, there are errors in copying and changes in the working, and the members of the revision committee need to present a decree to amend by addition and correction things based on what we submitted."

His list of changes needed includes Articles 1, 7, 15, 16, 19, 20, and 21. As the Liberal Party Congressman Jose Simon Azcona said,

"laws should be published as they were approved in the National Congress, if there is a group that is not in agreement with this, they can submit a law to amend the existing law, but no one should change things outside of Congress."

Oswaldo Ramos Soto, another member of the revisions committee, urged people to wait until the committee has fully compared the document they sent to the Executive branch for signature with that published in La Gaceta.

Despite these objections, the new tax law goes into effect as published in 20 days from its April 22, 2009 date of publication. It will be up to Congress to approve revisions and amendments to the version published, to correct any errors in the published version. Supposedly the committee on revisions is working on such a set of amendments now.

These changes to the law aren't minor, if we go by the comments on the scope of changes in the various La Tribuna articles. The revision committee members seem to be trying to calm the waters, portraying the changes as minor copying errors, rather than deliberately introduced changes. Interestingly, only Marvin Ponce of the UD party called for an investigation into how and more importantly, where, the changes were introduced. I doubt he'll get his investigation.