Constitutional Death Spiral in Honduras

How does a constitution die? In Honduras, it started with a coup in June 2009. Now, fast forward to January 2013: the Chief Justice of the Honduran Supreme Court is unable to seat a panel of five justices to review an appeal of the constitutionality of a law passed by the Congress. The reason? The law under review allowed Congress to remove four justices serving on the Supreme Court itself. The four people appointed to replace them, and a majority of the justices who were not dismissed, recused themselves from hearing the case because virtually everyone either was directly involved or had expressed an opinion in support of the dismissed justices.

How does a constitution die?

In Honduras, it started with a coup. In June 2009, the military forcibly removed President José Manuel Zelaya Rosales from the country. They later claimed to be acting on a warrant issued by Supreme Court justice Tomás Arita. The army’s actions were given a veneer of legitimacy by the Honduran Congress. It voted for the head of Congress to become the new president, ushering in the de facto regime of Roberto Micheletti.

Fast forward to January 2013: the Chief Justice of the Honduran Supreme Court, Jorge Alberto Rivera Avilés, is unable to seat a panel of five justices, from among the 15 justices on the court, to review an appeal of the constitutionality of a law passed by the Congress. The reason? The law under review allowed Congress to remove four justices serving on the Supreme Court itself. The four people appointed to replace them, and a majority of the justices who were not dismissed and still served on the court, recused themselves from hearing the case because virtually everyone either was directly involved or had expressed an opinion in support of the dismissed justices.

For anyone trying to understand Honduras by comparing it to the US constitutional model, the situation there must seem virtually unintelligible. The modern Honduran constitution, ratified in 1982, calls for the familiar division of power between three branches of government: the legislative, executive, and judicial. Congress makes laws; the president and executive officers carry out policies authorized under the law; and the Supreme Court serves to assess when laws are passed that infringe on the guarantees of basic rights enshrined in the Constitution.

However, Honduran governance lacks some fundamental checks and balances necessary to maintain the balance among these branches. The Supreme Court is appointed by the legislative branch– the same branch that creates the laws whose constitutionality the court is charged with judging. Supreme Court justices are appointed for terms of seven years, from a list proposed by a committee representing a wide range of formally recognized social and religious organizations. In practice, the candidates for Supreme Court appointments are politically indebted to those who nominated them and, especially, to the Congress that appointed them.

The congressional role in selecting Supreme Court justices is intended to limit the executive power. In that, it certainly worked: the executive branch of the Honduran government is much weaker than the legislative. Where presidents can serve a single four-year term, congress members can be, and are, re-elected over and over. Congress has the authority to approve the national budget, and so to constrain executive action. And it is congress that appoints the Supreme Court, now beholden to Congressional power. It would take a brave justice to rule that the laws enacted by the patrons who put the justices in office are unconstitutional.

The unbalancing of power among the three branches illustrates an essential problem with the Honduran constitution itself, characterized in 2009 by former Costa Rican President Oscar Arias, attempting to negotiate an end to the crisis that followed the coup, as “the worst in the entire world”. It has been amended over and over due to a procedural peculiarity. With the exception of a few constitutional articles that are “set in stone” (unchangeable), everything else in the Constitution is open to Congressional tinkering. No wide referenda are required to ratify changes Congress proposes to the Constitution: just as long as the same change is passed in two consecutive sessions of congress, it is in. Furthermore, with re-election virtually locked in by a party system that controls who gets nominated for office, the members of a new session of congress will almost always agree with their predecessors, because they will mostly be the same people.

Among the many changes the Honduran Congress has made to the Constitution was one in particular, inserted in 2002 and reiterated by Congress in 2004, that granted itself the right to interpret the Constitution. That peculiar insertion, needless to say, co-opts the place of the Supreme Court in the division of labor envisaged in the three branch model of government. The Honduran Supreme Court declared the proposed change unconstitutional in 2003, a violation of constitutional prohibitions against changing the form of government. In a fit of pique, Congress has refused to allow that decision to be formally published. If the court’s decision were a piece of congressional legislation, lack of publication would mean it was not in force. Supreme Court decisions, however, don’t need to be published to be effective. Still, absent someone bringing a case to the court based on the changed language, it remains in the Honduran constitution, letting the Congress act as if it has some of the powers originally granted to the Supreme Court in the Constitution.

What does this lead to? Among other things, to a court that is beholden to Congress for its very existence producing a post-facto rationalization of the forcible removal of a president from office, as well as a ratification of the usurpation of power by a member of that same Congress. That kind of acquiescence sets up an expectation on the part of the Congress: the Court exists as a partner, not as a separate office balancing the exercise of power.

Which brings us to the crisis unfolding today. When the Honduran President and Congress, under pressure from the US to clean up a corrupt and violent police force following a string of well-publicized murders, passed a law in 2012 to purge the police, they got it wrong: they suspended basic legal guarantees of due process for those under suspicion. The “Sala Constitucional“, a subgroup of the Supreme Court, heard an appeal of the law, and ruled that it was unconstitutional for that reason. Under Honduran legal procedure, the decision had to be reviewed by the entire court, because it was not unanimous: four justices saw the law as unconstitutional, while one approved.

This was not the only decision taken by the court recently that went against the president and Congress. As in previous instances, Honduran President Porfirio Lobo Sosa spoke angrily against the court, accusing them of failing in a duty to support the rest of the government in its righteous mission. Not coincidentally, on the day the Sala Constitucional issued its opinion, the Lobo Sosa administration had announced it was going to seek congressional extension of the police cleanup for another six months. The court clearly presented the Honduran President and Congress with opposition they found unacceptable. Lobo Sosa stated the position most clearly: the different branches of government, he said, “are independent, but complementary”, and “the first power of the State is the Legislative branch because it is the one elected”.

Leave aside whether the Honduran police should be reviewed, and the worst offenders removed. Leave aside whether those under review should have the same rights to due process as any other Honduran citizen is promised in the Constitution. For Lobo Sosa, and for the head of Congress and close political ally Juan Orlando Hernández, the court wasn’t doing its job in a system of checks and balances: it was being insubordinate in an imagined hierarchy.

In retaliation for this independence, on December 12, Congress heard a hastily manufactured “report” accusing the court of administrative error. Among other points, the report argued that the opinion of the Sala Constitucional of the Supreme Court “is not in keeping with the security policy implemented by the Executive and Legislative powers”, making it clear that for the congressional authors, the role of the court is to go along, not to act as a balancing branch of government.

As they deliberated, the Honduran armed forces and police surrounded the congressional building. At the end of the night, congress members, led by the National party of Lobo Sosa and Juan Orlando Hernández, passed a law giving Congress the power to fire Supreme Court justices. As soon as the congressional measure was passed, the four justices who opposed the police purification law were removed from office, and four replacements were sworn in.

Many justices who remained on the court spoke out in favor of their ousted colleagues. An appeal of the statute created to allow the firing was launched– in the Sala Constitucional of the Supreme Court, the body from which the four had been removed. It was thus destined to be heard by the four justices appointed in their place (plus the sole justice who kept his job by agreeing with the president and Congress).
The newly appointed justices promptly declined to rule on the legality of the law that led to their own appointment.

The head of the Supreme Court, Rivera Avilés, then formally designated four other Supreme Court justices to hear the appeal. They promptly recused themselves as well, because they had already expressed an opinion against the firing, and in favor of justices who had been dismissed.

The third time around, Rivera Avilés was forced to reach outside the actual sitting Supreme Court justices, because he had run out of sitting Supreme Court justices. His choices for the new panel were the three remaining Supreme Court justices who were available; an appeals court justice; and the legal counsel for the Supreme Court. The Supreme Court counsel had at least been on the long list of candidates for the court proposed by a mandated citizen commission, from which Congress originally appointed the fifteen Supreme Court justices. Their decision is expected within 72 hours (three days).

Why did Congress react so strongly to the ruling by the Sala Constitucional on the law to clean up the police? It was not the first post-coup law that the court found was flawed. Earlier in 2012, the Supreme Court also ruled that a proposed law allowing the creation of “model cities”, a pet project of President Lobo, violated sections of the Constitution dealing with territoriality and sovereignty. The rhetoric after that incident was heated, with President Lobo calling the justices who ruled against the law “traitors”. But the justices kept their positions.

So what was different in December? First, the national elections had entered the scene, with the selection by parties of their candidate slates for the contest that will take place in November of this year. The primary voting was, by almost all accounts, deeply flawed. In the ruling National Party, candidate Ricardo Alvarez, mayor of Tegucigalpa, was denied his party’s nomination. Instead, it went to the current head of Congress, Juan Orlando Hernández. Alvarez protested the decision to the Supreme Election Tribunal—the government commission overseeing election law—and, when his protest was rejected took it to the Supreme Court. One theory is that the disruption of the court was, at least in part, intended to delay or even permanently defer the review of this matter, which could cast doubt on Juan Orlando Hernández’ candidacy.

As a less byzantine motivation, the opinion of the Sala Constitucional was not final because it was not unanimous. The next step mandated under Honduran law was a hearing by the entire Supreme Court. The full court has, understandably, not gotten to this hearing, what with having to try to empanel a Sala Constitucional that can hear an appeal about the makeup of the Sala Constitucional. So effectively, no decision has legally been ratified in the case of the police law.

But then again, that is really a moot question. The author of the Congressional “report” argued that the court should never have ruled on the original appeal because the offending statute was no longer in force. The congressional act suspending parts of the police legal code (and thus denying reviewed officers due process) was put in place through an expansive use of the constitutional power to take emergency actions, which must be for strictly limited periods of validity, in this case six months, ending November 25, 2012. Such expansive use of emergency power is another legacy of the coup of 2009: in the wake of the coup, the de facto regime used this power repeatedly to try to limit the exercise of rights of assembly and protest by civilians. While President Lobo had declared his intention to ask that the emergency measure be extended, technically the decree had ended and that apparently should have led the court to set the matter aside. Presumably, the Chief Justice could simply have used that technicality to avoid what he clearly did not and does not want to do: offend his congressional patrons. Since then, Honduran press reports note that the procedures found objectionable have been extended through a new legal decree.

Which brings us back to the big question: why the exercise in brinksmanship by the Congress, which has reduced the Supreme Court to being unable to act? The debate in Congress produced some of the most blunt statements about the institutional weakness of separation of powers seen since the 2009 coup. Editorial writers and members of congress alike worried out loud that this crisis will usher in a period of dictatorship equal to that of Tiburcio Carías Andino, who controlled the country for decades in the first half of the twentieth century.

We see two possibilities. First, that an appeal of the outcome of the primary election in the Nationalist Party was so threatening that it had to be stopped. Or second, that Juan Orlando Hernández used Congress as his personal political machine to stabilize his own route to the executive office.

But maybe the answer is not so complicated. Ever since the Honduran Congress flexed its muscles in June 2009, removing the president and demonstrating that the Supreme Court was its tool and not an independent branch of government, Honduras has been living with a legislature that appears to recognize no boundaries to its ambitions. The Sala Constitucional contradicted that imperial body. The justices who did not toe the line were disciplined.

As a result, who now expects the Supreme Court to ever try that again?

Rosemary Joyce is Professor of Anthropology at the University of California, Berkeley. Russell Sheptak is a Research Associate at the University of California, Berkeley, specializing in historical anthropology. Together and separately, they have conducted anthropological and historical research in Honduras for more than thirty years. At the time of the 2009 coup, they were collaborating with the Ministry of Culture of Honduras on cultural heritage programs that were part of the Zelaya administration’s commitment to citizen participation.