Not Really Model Cities Again

Juan Orlando Hernandez is determined to get new legislation approving Regimenes Especiales de Desarrollo (RED), what people have been calling "model cities", through the session of the Honduran Congress that ends this month.  To that end, he has introduced a new package of legislation.

He says this draft law takes into account the objections raised by the Supreme Court that made the previous law unconstitutional.  Uncommented on is why he did this, since he later got Congress to illegally dismiss the justices that found the law unconstitutional.  Might it be that they were right?  Oh my!

What he proposes is the establishment of 12 special kinds of entities:

international finance centers
international logistics center
autonomous cities
special economic zones
international commercial courts
special investment districts
renewable energy districts
zones with their own legal system
special agro-industrial zones
special tourist zones
mining zones
forest zones.

What Juan Orlando Hernandez has done is change the name, change the function, and keep the acronym.  This is meant to preserve the mental link to model cities, but this legislation is not about model cities.

The proposed entities are nothing like the previous Regiones Especiales de Desarollo proposed under the  unconstitutional law. Nor are these any kind of model city using either Paul Romer's or Michael Strong's definitions.  Forget everything you've read.  This is something very different.

These zones will all supposedly have "functional and juridical autonomy", although later in El Heraldo's brief description of this new system they say that conflicts will be handled either through arbitration or through a new branch of the existing Judicial system.  So that's clear, right?

There's a twist, though given Honduran electoral politics, not much of one: these new entities can only be established by a referendum and once established their charter can only be modified by a referendum of those who live within them.

The law will modify the Honduran constitution, which is why it's urgent to get it passed in the next few days, before this legislative session ends.  In Honduras, constitutional amendments must be passed by two successive sessions of Congress. More or less what Juan Orlando Hernandez plans is to bring this up as soon as January 19, then again right after January 25th when the new Congressional session begins. 

Article 294 of the constitution would be modified to divide the national territory into Departments (the existing administrative units, equivalent to states) and special zones:

The national territory will be divided into Departments and zones subject to special rules in conformity with Article 329 of this constitution.  Their creation and boundaries will be decreed by the national Congress.  The Departments will be divided into autonomous municipalities administered by officers elected by the people, as governed by law.

Also due to be modified is Article 329. It currently gives the government the power to develop economic plans, in consultation with its citizens and to set up whatever mechanisms are necessary to achieve these goals. El Heraldo does not give us the new language of this constitutional modification, but it will be the key to understanding these new special development regimes.  However, later in the day, Tiempo published the proposed language of Article 329 which seems to contain no changes to the existing language.

The new law would modify Article 303 of the Honduran Constitution, changing the rules governing how justice is administered.  The new Article 303 would read:

The ability to impose justice comes from the people and it is offered freely for the state, by magistrates and independent judges, only subject to the Constitution and the laws.  The Judicial branch is made up of a Supreme Court, special jurisdictions in regions of the national territory subject to special rules created by the Constitution of the Republic, by appeals courts, the courts and other dependencies indicated by law.

Again the modification here is to add the reference to special rules zones.  The key will be how justice in those special rules zones articulates with the Judicial branch, which notably is not spelled out in this change.

Along with Hernandez, the new law is being pushed forward by Congressman Rodolfo Irias Navas, a National party member and owner of TV stations (Channel 8 in Tela, Channel 45 in La Ceiba) and radio stations (Communicaciones del Atlantico, Radio El Patio of La Ceiba, Stereo 92 FM, Stereo 102.5 F, and Romantico 103.5 in La Ceiba, Radio Aguan in Colon, 91.5 and 92.7 FM in Tela).

(Irias Navas was also one of the spokespeople for the 2009 coup, who kept saying that the international community wasn't listening and would understand if they would only listen.)

Anyone who can read should see that this is not anything like the previous legislation, and that it's not about real development.  It's a law designed to benefit the monied class in Honduras that's responsible for underdevelopment, the class that sees the government of Honduras as its reliable income stream.

We're not the only ones to see it that way.

Analyst Raul Pineda pointed out that the reason this law is being rushed through is the urgent need for some in the oligarchy who owned or speculatively purchased lands they expected to be appropriated under the unconstitutional model cities law, to sell those properties for financial reasons.

Or as he put it: it's because a few people need to do business.

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.

Model Cities Law Unconstitutional

The law enabling Regiones Especialles de Desarrollo (RED) sometimes referred to as Model or Charter Cities, has been found unconstitutional by the Constitutional Law branch of the Supreme Court in Honduras.  Justices  José Antonio Gutiérrez, José Ruíz, Gustavo Enrique Bustillo, and  Edith María López voted to sustain the legal challenge brought in 2011.  Only justice Oscar Fernando Chinchilla voted to reject the legal challenge.

Justice Chinchilla traveled to southeast Asia to visit Korean economic development zones with President of the Senate Juan Orlando Hernandez and refused to recuse himself from the case.

Because the decision was not unanimous, Chief Justice Jorge Rivera Aviles will have to assemble the full court of 15 justices and get their votes over the next 10 days before there is a final determination.

Legal Challenges to Model Cities Law Proliferate

The law in Honduras that enables the Regiones Especiales de Desarrollo (RED), better known in English as model cities, is facing increasing opposition from Honduran citizens. 

The constitutionality of the law was first challenged in October, 2011 by the Asociación de Juristas para la Defensa del Estado de Derecho (Association of Jurists for the Defense of the Rule of Law).

Fourteen challenges against the model cities enabling law were filed on September 18, 2012. These fourteen challenges were filed on behalf of 14 separate individuals, including Miriam Miranda Chamorro, head of Organización Fraternal Negra Hondureña  (OFRANEH), a Garifuna organization.

On September 18, the Public Defender of the Constitution, a prosecutor with the Public Prosecutor's office, filed a brief with the Supreme Court on an October 2011 case challenging the constitutionality of the law. The Honduran Supreme Court solicits the opinion of the Defender of the Constitution whenever there is a constitutional challenge present in a case before the Supreme Court.  A legal countdown clock has now started, that by law gives the Supreme Court's Constitutional group of five judges just 20 days to render an opinion in that first legal challenge from October, 2011.

Nine more challenges to the constitutionality of the law were filed with the Honduran Supreme Court on September 21, 2012.  Eight of these were filed by the Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (COPINH, the Civic Council of Popular and Indigenous Organizations) and the nineth by Father Fausto Milla, a Catholic priest in the Lenca region of Honduras.

On September 25, the LGBT community filed 30 more challenges to the constitutionality of the Regiones Especiales de Desarrollo law.

On September 26, a further 22 challenges against the law were filed.  One of these was by the Colectivo de Mujeres Hondureñas (Collective of Honduran Women), and the rest by individuals challenging the legislation.

For those of you keeping score, that's 76 separate challenges to the constitutionality of the RED legislation.

And that's not the only bad news. The Honduran Congress apparently agrees that the law, as written, is unconstitutional.

Oswaldo Ramos Soto, who drafted the existing RED law and is  Juan Orlando Hernandez's go-to guy for writing legislation, is preparing to introduce an amendment which will "fix" the unconstitutional parts of the law.

Ramos Soto wants to change Article 1 of the RED law to make it clear that the judicial system in the RED is still answerable to the Supreme Court, which is the court of last resort in Honduras.

Ramos Soto also wants to strip away the treaty-making power granted the model city in the existing law.  He proposes changing Article 18 to remove any mention of treaties, and to give to Congress the power to appoint judges in the model city. 

Ramos Soto also proposes changing Article 19 to make the legal system in a RED part of the Honduran judicial system, under the authority of the Supreme Court.

The net effect of Ramos Soto's proposed changes would be to gut one of the key features of Paul Romer's model cities: their judicial independence from the host country.

Both Romer and Michael Strong have argued that it is the legal systems in the host countries that are in part responsible for the poverty in them and the lack of economic development.

The experiment seems to be on the way to being over before it even began.