'Technical' coup against Supreme Court (Part 3)

Juan Orlando Hernandez (left), President of Congress,
with Porfirio Lobo, President of Honduras
Photo: El Heraldo

What is behind the coup against the Supreme Court?

President Porfirio Lobo and Congressional President Juan Orlando Hernández (JOH) have been at odds with the Supreme Court ever since their administration began. The Sala Constitucional and/or the full Supreme Court have ruled seven times that projects of this administration were unconstitutional, not really surprising since this Congress is known for mentioning a law one day and passing it the next without even allowing its own members time to read and analyze it. Government contracts have been approved without congressmen even being allowed to read them.

Lobo has proposed, among other things, instituting his own judicial review board to review and presumably reverse rulings of the court. Congress has ignored decisions of the court in the past. The 2010 issue of Canal 8 (television channel) [my summary and followup in english] is just one example of the blatant lack of respect for the court's decisions and the executive and legislative branches' use of emotional and nationalistic propaganda to sway public opinion.

The situation has become even more heated in the recent months with the court's ruling that the charter cities law was unconstitutional and in recent weeks with the police purification law. After the decision, in a meeting of his ministers, in front of media cameras, he ominously announced the inclusion of the four magistrates one by one by name on the government's "black list". In addition to public statements that the court was on the side of criminals and against security for 'the people', President Lobo even took to tweeting threats against the court [english]. The court responded by issuing a press release in which they classified Lobo's statements as a direct threat against the court. Pepe wanted to take the purification law to a referendum of the people, but that would have taken too long so he used Congress to fire the judges instead.

Every judge who has spoken about this issue has clearly stated that absolutely no one is against police purification, that it is badly needed, but that any law enacted to do so must not violate anyone's constitutional rights.

Why now?

Cartoon by Dario Banegas, La Prensa

Late on Tuesday night (December 11), La Prensa reported that UD party Congressman Marvin Ponce [article in español] was the first to sound the alarm, stating "There is a real political crisis in Honduras and it is possible that we will go to the middle of the night to make decisions regarding the Supreme Court of Justice". He confirmed that congressmen wanted to fire at least four judges and that with the support of Yani Rosenthal's congressmen, they would have the 86 votes needed.

Congressman Ponce said that at stake is the presidential candidacy of Juan Orlando Hernández, which is being disputed by the other front running Nacionalista candidate Ricardo Álvarez, current mayor of Tegucigalpa. Álvarez disputed the results of the November 18th Nacionalista primary due to numerous irregularities but after receiving no satisfaction from the election commission (TSE), he announced that he would ask the court to rule that a vote by vote recount was needed. "The problem is the division in the Nacionalista party and Juan Orlando believes that the court will keep the party divided. The Nacionalistas seek to avoid that this [Álvarez's] appeal will reach the Supreme Court", explained Ponce. While Ponce exposed this ulterior motive to the media, in the end, he voted for the firing of the justices.




JOH continues to claim that he consulted with Yani Rosenthal three times about the replacement judges, while Yani continues to claim that he had no conversations with him. JOH also refuted Jorge Rivera's (President of Supreme Court) claim that he had no discussions about the firings or had anything to do with the selection of replacements.

Disputed primary election

Ricardo Álvarez, Mayor of Tegucigalpa

Many irregularities were documented during the November 18 primary elections. I'm going to post a separate article about what some of the problems were. Ricardo Álvarez made a formal petition to the Election Tribunal (TSE) for a ballot by ballot recount. He also denounced that he had been offered bribes of government positions [español] including President of the National Congress and a Minister position to drop his candidacy. His petition was denied by the TSE. He continued to complain despite receiving pressure to accept the results from his party and numerous others, including the Organization of American States (OAS). After the TSE announced the official results declaring Juan Orlando Hernández the winning Nacionalista candidate on Sunday night, December 9, Álvarez said he would take his appeal to the courts. Despite the judicial firings, Álvarez filed a complaint with the Supreme Court on Wednesday, December 12.

Fired Justice Rosalinda Cruz [español] and many others have also speculated that the action against the judges might have been taken because of Álvarez.

Who will hear the appeal?

The Supreme Court is in limbo now, with four judges fired, and four new judges who most say were illegally appointed. As of last week, before the judicial vacations, the fired judges were still in their offices and rumor has it that the newly appointed judges were present in President Lobo's offices. The court has not received any sort of official notification of either the firings or the newly hired judges. The President of the Supreme Court stayed behind closed doors for the rest of last week and has not given any official notification of the happenings to any of the other judges.

Raúl Antonio Henríquez Interiano

Supreme Court Justice Raúl Antonio Henríquez Interiano (from the Penal Chamber) has been extremely outspoken about the illegality of the firings. Sunday night on a popular talk show, Henríquez said he will not attend any sessions in which the new judges participate because any ruling resulting from these sessions would be invalid. He also sent a message to foreign diplomats and international organizations, "If you want to hear the dirty version, meet with the President of the Supreme Court, but if you want listen to a "clean face", meet with all of the Supreme Court justices. He asked if Congress was justified in firing any judges based on administrative delays or backlogs (to which he does not agree), why didn't they fire the fifth judge (who has a history of voting with the administration's wishes)? He also pointed out that the fifth Magistrate of the Constitutional Chamber, Oscar Fernando Chinchilla Banegas, was responsible for scheduling hearings so he would have been as much or more responsible than the others for any backlog of cases.

Judge Henríquez said that the court will have difficulty in getting a quorum on any appeals. He asked who could decide the appeal of the fired judges? They can't rule on their own appeal. The new judges are illegally appointed and obviously biased. Constitutional Judge Chinchilla has avoided any involvement and has given no statements.

Referring to the judges refusing to attend sessions with the new judges, Congressman Marvin Ponce threatened that any judges doing that will incur civil and criminal penalties. Mentioning Judge Henríquez by name, Ponce said, "He said he is going to resign, so if he is going to resign, we are waiting for his resignation." He made the crude comment that he knows it is not easy to leave behind a salary of L.200,000 per month.

Path to dictatorship?

If one believes that the Supreme Court's rulings are based on politics or directed by organized crime rather than the constitution as President Lobo and JOH say, what is a better solution than firing those judges and appointing more friendly or easily manipulated judges? No one would benefit more than JOH who, if he is elected president in 2013, could benefit from the decisions of an intimidated court whose independence has been dealt a severe blow. Some say that Pepe's intention is to fire the entire Supreme Court and in fact, the request from Congress asked for a report on the judges of all four chambers of the Supreme Court [español]. JOH has firmly stated that the decision to fire the justices is irreversible.

The judges argue that Congress only has the right to review the administrative actions of the court not the rulings, and that the only member of the court with administrative responsibilities is the president, Jorge Rivera Avilés. They say that in no instance does the Congress have the right to fire a judge. Article 317 of the Constitution seems to confirm that: "Those Judges and Magistrates can not be separated, suspended, transferred, demoted, or retired without causes and with the guaranties provided under the law." One might assume that 'causes' refers to proven legal causes, not merely rulings that the current administration's projects are unconstitutional.

The Catholic Church issued an official statement [español] saying that Juan Orlando Hernández and Porfirio Lobo seem to be interested in attaining absolute power. Honduran political analyst Juan Ramón Martínez said, "If one listens to Juan Orlando Hernández, who talks and says what he is going to do, the country is on a path to a dictatorship....this dictatorship is going to provoke the economic destruction of the economy" [español]. He went on to say "Never in the history of Honduras has there been a man so open, so explicit in his ambition....we note that Hernández is doing the same as Zelaya in 2009". Others have made similar statements [english]. The international community has only made vapid comments about resolving the dispute constitutionally, just as they did when Mel Zelaya was defying the Supreme Court.

Cartoon by Congressman Dario Banegas, La Prensa

On Tuesday, December 18, after much discussion and a few changes, Congress reformed the 2008 organic (administrative) police law to permanently include 'police purification' procedures [both in español]. The law still includes polygraph testing as a "measure of evaluation" but not as a direct reason for firing. The reformed law also provides for the right of due process, the right to defend themselves against administrative charges, instead of automatic firing as was included in the temporary law [draft decree in español]. It also limits the period of administrative investigation to four months when previously an 'investigation' could conceivably continue, with pay, through infinity. Whether or not these changes sufficiently correct the reasons for the unconstitutional ruling of the previous temporary law is not known.

See the previous parts here:
Part 1
Part 2