Caribbean & Central America - March 2012 (ISSN 1741-4458)

 The executive and the legislature are scheming against the highest court in the land for its unwillingness to co-operate with the government led by President Porfirio Lobo.  Critics contend that the Lobo administration is leaning towards the creation of a parallel power in order to bypass supreme court decisions it does not like, and warn that this is an assault on the already weak state institutions in Honduras. Lobo, like his ousted predecessor Manuel Zelaya (2006-2009), has toyed with the idea of calling a constituent assembly for a broader constitutional overhaul, but with a general election looming in November 2013, it is probably too late for that.

On 6 March the president of the unicameral congress, Juan Orlando Hernández of the ruling Partido Nacional (PN), announced that the legislature would set up a commission of jurists to analyse rulings handed down by the supreme court. The move by the PN’s would-be presidential candidate for 2013 comes exactly two weeks after President Lobo said that his office would create its own oversight commission for the same purpose - to examine whether the supreme court is acting within the bounds of the Honduran constitution.

There is no doubt that the conservative supreme court is highly politicised, but Lobo and his administration are potentially erring in favour of political brinkmanship with the court. That attitude landed the former president Manuel Zelaya (2006-2009) in hot water with the court, which eventually ordered his removal (an order carried out by the military on 28 June 2009).

Since he took office in two years ago (January 2010), Lobo has become increasingly peeved at the supreme court’s obstinate refusal to play ball with the executive and the PN-dominated legislature. Not only did the court refuse to go along with the Lobo-led – and internationally-mandated  – national reconciliation efforts in the wake of the June 2009 coup (it still maintains that Zelaya’s removal was legal), but it has also handed down consistently negative decisions on the government’s flagship initiatives, most notably: a proposed security tax; the legislative framework for Lobo’s novel model cities scheme; and latterly, a new law providing for the official recognition of the Evangelical Church.  In each case, the court has ruled the framework legislation unconstitutional.

Like Zelaya, Lobo has precious little room for manoeuvre when it comes to institutional reform. The 1982 Constitution, written by a retreating military regime, is bound up so tightly in certain areas that it is almost impossible to revise. Yet it is unclear and open to interpretation in other areas.  With congress at his back, Lobo is certainly in a better political position than Zelaya ever was to challenge the court. He also draws on the findings of the Truth and National Reconciliation Commission that reported on the coup against Zelaya; it recommended the creation of a new constitutional court to remove constitutional matters from the supreme court’s remit altogether.  However (and again just like Zelaya), Lobo is nonetheless risking the country’s precarious institutional stability in seeking to tacitly undermine the highest court in the land. 

What the constitution says:

1.         Lobo and Hernández want the new oversight commissions to examine the constitutional validity of supreme court rulings. Hernández suggested on 6 March that congress could in fact debate such rulings. In fact under Articles 184, 185 and 316, the constitution is clear that constitutional matters are the exclusive remit of the supreme court and that once the court rules a bill or law unconstitutional the congress must comply by reading out the ruling in parliament and then publishing it in the official gazette without further ado. Nowhere does it allow the congress to challenge the ruling.

2.         Lobo and Hernández also argue that congress has the power to sack supreme court magistrates. The constitution is a little unclear on this. On the one hand, under Article 205 (20) the congress is authorised to “approve or disapprove of the administrative conduct” of the executive and “the judicial power “.  Some coupsters used this Article to justify the removal of Zelaya, however to approve or disapprove of the administrative conduct is presumably just a first step in a longer evaluative process and not a tool in and of itself.

3.         Under Article 313 (8), the supreme court is authorized to nominate and remove magistrates and judges on the basis of a proposal by the council for the judicial profession.  It is not explicitly stated whether this refers only to lower court judges (though that is the presumably the intended meaning). In theory, the executive and congress could amend the selection process for the 15-member supreme court. This itself, set out under Articles 311 and 312, is highly politicised and for years has been divvied up, effectively, between the two traditional parties, the PN and the Partido Liberal (PL).

 A local constitutional professor, Rigoberto Espinal  Irías, who advises the attorney general’s office (led by Luis Alberto Rubí, who, like the TSJ, has a conservative bent) told the daily El Heraldo on 7 March that the proposed oversight committees risked being “in open violation of the constitution”. 

He said it was positive that the executive and legislature proposed such committees, but he recommended that they be used solely to take advice prior to submitting a bill.  “These studies should be undertaken with sufficient time in advance…so as to determine that any draft legislation submitted to congress is in harmony, first with the constitution and secondly with other laws”, he commented.

• More cabinet changes

Lobo has been implementing a piecemeal reshuffle since September 2011, when he removed three ministers, including his foreign affairs and security ministers. The changes reflect the president’s frustration with his government’s failure to deliver on almost every front. Finance Minister William Chong Wong resigned on 13 February, citing the pressures of his job and hinting that he could not meet the conflicting demands of the public for additional social spending and of the International Monetary Fund (IMF) to meet stringent fiscal targets as part of its loan agreement with Honduras. He was replaced by Hectór ‘Tito’ Guillermo Guillén, the head of the congressional budget commission.

  President Lobo also accepted the resignation of Francisco Zelaya, his industry and commerce minister, amid a scandal over 4,000 tonnes of illegally imported rice. José Adonis Lavaire replaced him.

  On 27 February Lobo swore in Marlon Oniel Escoto Valerio as the new education minister, possibly the most poisoned chalice in the cabinet. Escoto hails from the national agricultural university of Honduras at Catacamas, where, as rector, he suspended classes in the wake of the June 2009 coup so as to allow students to protest against the coup. Escoto admits to taking part in the protests and told journalists after he was sworn in that President Lobo “knows full well my positions”. Escoto replaces Alejandro Ventura, removed in January. Despite his labour union background, Ventura proved unable to resolve the longstanding pay and pension disputes between teachers’ unions and the cash-strapped government, resulting in strikes. Latterly, the teachers have also reacted tepidly to a new education reform law introduced by the Lobo government. Escoto said his first task would be to meet teachers to discuss their concerns over the new legislation. Ramón Arturo Escobar was appointed the new deputy agriculture minister, replacing Juan Angel Artica.

   Finally, Emil Mafhuz Hawit Medrano is the new managing director of the national electricity company (ENEE). He replaces Roberto Martínez, who resigned on 23 February amid a row over the shape of an emergency energy supply contract with a foreign company (Westport). 

• No to the morning-after pill

On 13 February the supreme court upheld an absolute ban on emergency contraception, thereby criminalising the sale, distribution and use of the morning-after pill. Under Honduran law, the provision of the morning-after pill  is considered the equivalent of an abortion and the punishment is the same, ranging from three to 10 years in prison. Women who seek an abortion face three to six years in prison. Under the latest decision, being found with an emergency contraceptive pill would be considered an abortion attempt. A ban on emergency contraception was first passed by congress in April 2009. President Manuel Zelaya vetoed the ban a month after it was passed –adding to his woes with the supreme court. The de facto government that replaced Zelaya after his removal in June 2009 re-instated the ban in October 2009.

• Pre-primary campaigns get under way

On 11 February Manuel Zelaya’s wife, Xiomara Castro, began her campaign to become the 2013 presidential candidate for Zelaya’s new party Libre. Castro is the only nominee for the spot after the five factions that make up Libre agreed to back her unanimously. Juan Orlando Hernández of the ruling Partido Nacional will launch his campaign in mid March. Hernández received President Lobo’s official backing in September 2011.