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?
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.