Responses to the Coup d'etat in Honduras on Sunday June 28, with special emphasis on producing English-language versions of commentaries by Honduran scholars and editorial writers and addressing the confusion encouraged by lack of basic knowledge about Honduras.

Friday, September 18, 2009

A Supreme Exit?

Several of you have asked why the US State Department included the entire Supreme Court in the list of people whose visas were revoked. Many Americans have failed to grasp the nature of the Supreme Court in Honduras. This is not anything like our Supreme Court. This is first, and foremost, because the Supreme Court is political as much as it is judicial in Honduras.

A committee approved by Congress nominates, and then Congress selects from the nominees and approves a slate of 15 justices who serve a seven year term. This procedure was changed from the original Constitutional procedure (see below); it places a great deal of power over the composition of the court in the hands of Congress.

The nominating committee is made of of 7 people. For this court, the nominating committee consisted of Ramón Custodio (human rights commissioner), Rolando Bú (representing civil society), Israel Salinas (representing unions), Emilio Larach (representing business) , Óscar Garcia (representing lawyers) , Omar Casco (representing the current Supreme Court), and Yolanda Irias (civil society??).

The nominating committee was deeply divided about all but 21 of the candidates it advanced to Congress. The La Prensa article cited above notes the intense political pressure being exerted on the nominating committee by the "political powers" of the country. The article also notes that this time there was some pressure in Congress to include some of the then currently serving justices in the list in addition to the 45 nominees the committee was to return, a conflict which centered attention on Omar Casco, who supported it. "But if Congress decides to respect the list, those interests [the political powers] will shift to the nominees to offer them the judgeships if they will obey the orders [of the political powers], " said Congressperson Victor Cubas. He added:

"they will tell them that they will be selected but that they must follow the dictates of the groups of power, same as last time..."

By Congress, I mean the President of Congress, who was Roberto Micheletti this January, when the current court was appointed.

The Supreme Court justices named are usually distributed evenly between members of the Nacionalist and Liberal parties, with a slight edge given to the party whose President is in power.

Remember that, under the only constitutional reform procedure that Congress wants to have available, it was Congress that amended the Constitution to gain control of both the nominating and approval process for the Supreme Court. Previously, the President of the country nominated the candidates, and the Congress then approved the nominations.

It is widely recognized by international observers that the Honduran Supreme Court is highly politicized, which is an inevitable consequence of being appointed to terms, rather than having the lifetime appointments which have allowed US Supreme Court justices to take surprising positions after appointment.

Each of the present justices represents a particular political faction within the country. The factions in turn make up the political parties. For example, Tomas Arita Valle, the justice who signed the backdated detention order for Zelaya, for example, is a loyal member of Carlos Flores's faction.

This Supreme Court, made up of members of factions that support the coup, has also done its part in supporting the coup, from backdating the detention warrant for Zelaya to approving blatantly trumped up charges from the prosecutor, as we've previously examined, to issuing a legal opinion about the constitutional impediments to the San Jose Accords that's used by the de facto government to support its continued intransigence.

So pressuring this Supreme Court is appropriate political action on the US part.

So it comes as something of a surprise that they are also doing legal work that works against the de facto regime.

This is largely not covered in the Honduran press. Today's Tiempo has an interesting article that indicates a way that the Supreme Court could provide an exit out of the political crisis in Honduras.

The article is about an appeal lodged with the Supreme Court in August by lawyers for Manuel Zelaya asking the court to rule Congress's actions illegal and thus completely reverse its appointment of Micheletti as President.

Back in early August, the Supreme Court gave Congress a week to produce all of the documentation around the case, including the decree appointing Micheletti President and removing Manuel Zelaya. Congress ignored the request (didn't they charge Zelaya with ignoring a court order?!). On September 7, lawyers for Zelaya submitted a request for a summary judgment because Congress has not produced the required paperwork.

Today the Constitutional bench of the Supreme Court gave Congress 24 hours to produce the requested documentation. If Congress does not produce it, the Supreme Court can move to summary judgement. A summary judgment could declare null and void the acts of Congress removing Zelaya and appointing Micheletti, and could order the restitution of Zelaya.

Could this be a way out? This is why the State Department pressure on the Supreme Court makes sense.


rns said...

TJM writes to correct the name of one member of the nominating committee. La Prensa, in the article I cited, called her Yolanda Irias. TJM says its actually Olga Suyapa Irias, Representante de los Claustros de Profesores de las Escuelas de Derecho. This doesn't change the substance of this post and the correction of the error in the Honduran source appreciated.

TJM goes on to say "the Court analysis of the illegality of the San Jose Accord is not a position easily refuted". We have previously reviewed the Supreme Court statement on the San Jose Accord, which has been widely reported as "rejecting" the accord as "unconstitutional". But that is not precisely accurate, and as with every one of the Supreme Court's documents, it pays to read these carefully. TJM characterizes the document issued by the Supreme Court as "a legal decision", which it is not. This is another problem with much of the debate about the role of the Supreme Court in the coup; describing charges presented by the Public Prosecutor as a ruling of guilt by the court, for example, is a common way that coup supporters try to argue that Zelaya could not return (because he was found "guilty" when the discovery phase had not yet even taken place).

TJM says that no one addressed the substance of the Supreme Court's commentary on the San Jose Accord. We did. TJM claims the San Jose Accord raises issues of Honduran constitutionality. Our earliest commentaries on the San Jose Accord considered those issues in detail (e.g. the proposal to place the Armed Forces under the command of the Electoral Tribunal, the proposal, now moot, to move up elections and thus the campaign). In our comments on the Supreme Court document about the San Jose Accord, we consider in detail their note-- which they say is technically outside their competence-- about the apparent restraint on who the restored President would have in his cabinet.

rns said...

What TJM seems to be most bothered by, however, is our analysis here of the politicization of the Honduran Supreme Court. It is unfortunately necessary to sketch out the reasons why the international community has not been impressed by the court as an independent authority. As we noted, there are serious concerns, of long standing, about the politicization of the Honduran court system. Many of the people using Supreme Court statements to bolster their arguments in favor of the coup gloss over the facts about how deeply the court is indebted to political patronage.

Nor is the US action in revoking visas for the present court just about-- or even primarily about-- their mild opinion on the San Jose Accord, which really does not rule out accepting a revised version, including the return of President Zelaya, who they simply note "faces charges" in Honduras-- the court, at least, knows the difference between facing charges (which might be dismissed, reduced to lesser charges, or, with a fair trial on the presumption of innocence, end in acquittal) and having been found guilty of any crimes.

Pressuring the Supreme Court is as much, or more, about their complicity in the original events of June 26-28. This blog has covered these topics in detail. We will not recapitulate all of this here. It does matter if the court produced back-dated documentation on June 29 to retroactively justify what happened on June 28. But even if the legal documents they posted on their website on June 29 were actually filed the Friday before the coup, their are many legal errors pointed out by constitutional law professors with their proceedings. That these proceedings-- with the apparent approval by one justice of an early-morning raid by the armed forces, rather than the constitutionally mandated national police-- resulted in the expulsion of a Honduran citizen from the country, is bad enough. But the Supreme Court's acceptance of the National Congress' action in voting in Micheletti to "replace" the constitutional President-- based on a forged resignation letter; a vote by a congress convened without proper notice and thus without all delegates eligible; and without any legal basis in either the constitution or the processual legal code-- are the actions that the US is sanctioning.