December 12, 2012 "Coup" in Honduras: The Constitutional Court Dismissed as Primary Elections are Challenged

Tuesday, January 8, 2013

The December 12, 2012 "Coup" in Honduras: The Constitutional Court Dismissed as Primary Elections are Challenged

By Annie Bird

At 4am on December 12, 2012, the Honduran congress removed four out of the five judges that comprise the Constitutional Court of the Honduran Supreme Court. Honduran legal experts call this a technical coup, a violation by the National Congress of the constitutional order, explaining that the Congress has no legal capacity to summarily dismiss judges. The court and congress immediately went into recess, and upon return on January 3, 2013, the replacement Supreme Court Justices were sworn into office.

Though the Supreme Court had been a key participant in the 2009 military coup that forced the country's elected president out of the country at gunpoint, the movement that emerged in resistance to that coup has largely condemned the December 12 dismissal of judges as an assault on democracy.   The Association of Judges for Democracy (AJPD), an association of hundreds of Honduran judges, called it "a flagrant attack on the principal of separation of powers and judicial independence." Ironically, members of the AJPD's leadership were arbitrarily dismissed by the Supreme Court as a result of their public rejection of the 2009 coup.

Like the 2009 coup, the December 12 technical coup was in many ways a preemptive coup against upcoming elections, scheduled for November 2013. The dismissal of the judges came the same day the Constitutional Court received a challenge from one of the contenders for the conservative National Party's presidential candidacy, demanding a recount of the ballots from the November 18, 2012 primary elections.

Though the movement that emerged in resistance to the 2009 coup largely condemned the December 12 "technical coup," during the January 3, 2013 swearing in ceremony for the replacement judges a splinter of the resistance movement called the Convergence for Justice protested in front of the court. They called for the dismissal of the remaining 12 Supreme Court justices and the Attorney General, while welcoming the new justices and applauding the December 12 actions by congress and Honduran President Pepe Lobo.

The Honduran Committee for Human Rights (CODEH) is a leading force in the Convergence. In July 2012, CODEH's president, Andres Pavon, announced he will be the presidential candidate in an alliance between the Democratic Union party (UD) and the Frente Amplio (FA), a party he founded. The small UD party gained powerful positions in congress from 2010 to 2013 by forming a political alliance with the National Party faction led by current President Lobo after participating in the November 2009 elections that the resistance movement had boycotted.  

A Coup to Uphold "Police Reform"

The debate in the Congress that resulted in the destitution of the judges centered on a ruling the Constitutional Court had made on November 25, in which the four dismissed judges found a recent police reform law to be unconstitutional. The law had been passed slightly over one year before, with strong backing from the U.S. government.  

The "police reform" law had concentrated the power to fire police officers, without any means of recourse, in the hands of the President and his appointed national chief of police, Juan Carlos "El Tigre" Bonilla.  

The law, proposed as a temporary measure to facilitate sweeping reform, had expired days before the Supreme Court ruling, though Lobo had announced his intent to extend it. Conflicting press reports stated that during the year it was in effect only 33 or 99 of county's nearly 15,000 police officers, were fired.

Control the Courts, Control the Elections

However, many Hondurans, like Jari Herrera of the Jurists Association for the Rule of Law, point to control of the Honduran electoral process as the real reason for the judge's dismissal. Hardly independent before December 12, Honduran journalists explain that the Constitutional Court was controlled by a political faction of the National Party competing with the faction that controls the presidency and the congress. Honduras' current President Pepe Lobo supports the National Party presidential candidacy of Juan Orlando Hernandez, the current president of the Congress and the candidate that the Electoral Tribunal declared the winner of the National Party primaries.   The Lobo- Orlando alliance now controls all three branches of government.

During the primary elections, Orlando's National Party challenger was the current mayor of Tegucigalpa, Ricardo Alvarez, backed by former National Party president Ricardo Maduro.   The vote was so close that Alvarez demanded a recount. This led to an audit of the Table Acts, the official act that normally accompanies each ballot box and serves to record the results of the hand count done at each polling station.

According to press reports, a recount was only carried out of about 1,900 out of a total of over 38,000 ballot boxes, those in which the Table Acts were missing or flawed. In the weeks following the elections, social media was rife with complaints of alteration of table acts and a U.S. solidarity delegation in Honduras during the vote received similar complaints.

On December 11 the Electoral Tribunal declared the final results of the November 18 primary elections, without having carried out a ballot by ballot scrutiny of all boxes, and Alvarez immediately announced his intention to present a constitutional challenge demanding a count of each vote.

At 4am on December 12, just hours after the Electoral Tribunal's decision, the Constitutional Court was dismissed by the Congress, which is controlled by Alvarez's opponent Juan Orlando. Later that same day, Alvarez presented the Constitutional Court with a challenge to the TSE's decision not to carry out a full ballot recount, though the Court was already under the control of his opponent.  

Failed Primary Elections Foreshadow Failed General Elections

The final results of the primary elections were published on December 15 in the Official Gazette, making them binding. The day before, on December 14, the LIBRE party announced its intention to challenge the results, explaining their concern was not related to the count for any particular candidate in their primaries, but rather that the flagrant abuses during the primaries made it clear that the system in place could not guarantee the validity of the November 2013 general elections. In particular, LIBRE demanded the implementation of an electronic voting system. Shortly after the elections, LIBRE had complained that the Electoral Tribunal was not counting the results of its ballots.

A 34 member delegation of the Organization of American States observed the November 18, 2012 elections. Their report on the primaries is scheduled for early 2013, and the electoral observation team has not yet received an invitation to observe the 2013 elections. The effectiveness and political neutrality of OAS observation in other recent elections has been called into question, particularly 2010/ 2011 presidential and legislative elections in Haiti. One OAS observer in Honduras, after the scrutiny of table acts had been completed, explained that the OAS had not received any denouncements of alteration of acts.

A Coup Conspiracy before the Judicial Coup

On December 7, just a few days before the technical coup, another public scandal related to the apparent battle between conservative political factions occurred. President Lobo, accompanied by the Commander of the Honduran Armed Forces, held a press conference denouncing the existence of a coup conspiracy against him, naming Honduran businessman and newspaper owner Jorge Canahuati Larach as it's promoter. Canahuati Larach is believed to have been a principal force behind the 2009 military coup.

Pepe Lobo started his presidency on shaky ground. Anti- coup activists denounced the elections as illegitimate; not only did clear signs of fraud emerge from the elections that brought him to power but they were carried out during a defacto government that violently clamped down on protesters and closed media outlets.

On several prior occasions Lobo had denounced conspiracies against him organized the business elite, which some analysts dismissed as a tactic to shore up support from the U.S. Embassy against the 'real hard liners.'  

Was the Charter Cities Ruling Part of the Problem?

Reporting on the debacle in the Supreme Court also raised questions about the role of the Court's ruling against the Charter Cities law as a prior source of tension between the Court and Lobo, a proponent of proposal to concede city sized portions of Honduras to be autonomously governed by corporations of foreign governments. Many found the Courts ruling to be legally sound, and in line with findings by the Attorney General's office. However given the Supreme Court's history of placing the economic interests of their political patrons above the law, Honduran legal experts challenging the proposal felt certain that the ruling was politically motivated.

Before the December 12 "Technical Coup", the Constitutional Court was understood to be composed of the political agents of the 'hard line' faction of the National Party, dominated by former president Ricardo Maduro. Yet Maduro was a supporter of the Charter Cities proposal; it had first been brought to President Lobo's attention by Maduro's former Secretary of the President (the equivalent of Chief of Staff) Xavier Arguello Carazo. Later, Maduro sat on the Model City Advisory Committee.

While the ruling may have stemmed from infighting between factions of the National Party, also may have been a response to the overwhelming rejection of the proposal by Hondurans, who presented dozens of constitutional court challenges and even formal accusations of treason against members of the Honduran congress who voted for the law.   Even the most powerful in Honduras are careful in confronting nationalism.

Police Reform: Another Front in the Battle of the Political Bosses

Recent declarations by Lobo's Police Chief, "El Tigre" Bonilla, indicate he believes he can push through with 'police reform' even without the law. The law was overturned by the Supreme Court, the ruling that spurred the justice's December 12 dismissal, on November 25, just the day before the visit by the National Security Council Deputy Denis McDonough, the most high- level U.S. visitor to Honduras since the 2009 coup.

The visit came as the State Department was looking for ways to move past the suspension of all U.S. assistance to Honduran police by the U.S. congress pending credible investigations into internal Honduran police reports of Bonilla's participation in death squad activity between 1998 and 2002.

Yet on December 17, Honduran authorities announced that 700 new police officers are set to join the force. An Inter American Development Bank loan backs Honduran "police reform" through a State Department spearheaded regional security initiative funded principally by IDB loans, part of a group of national and multinational donors, in quantities that far outpace suspended State Department resources.

Bonilla has been a star in the Honduran press in a series of apparent crack downs. While US backed IDB funds allow Bonilla and Lobo to push ahead on "reform," media discussion of the State Department suspension allows Bonilla to take on the persona of the underdog doing everything it takes to fight crime while bucking attempted control from the United States.

But beyond the infighting between the nation's political bosses, the 'police reform' process is feared by critics to be simply a struggle between rival organized crime networks to control the police. Control of agencies of the government, be they congress, the courts or police, is of critical importance to criminal networks. It is part of the "permanent coup."

The Court challenge by police officers dismissed at the end of October is believed to have been supported by high ranking officers that are key players in networks of influence in the police controlled by a political faction that rivals Lobo's political allies who are also believed to have criminal influences. In an interview with the El Salvadoran investigative publication El Faron, a former Honduran Police Chief of Internal Affairs indicated the alleged death squad activities by Lobo's 'reformist' police chief, which resulted in the suspension of State Department funds, were not simply "social cleansing" of criminals, but rather appeared to have the objective of eliminating witnesses that could tie criminal bands to higher ups in organized crime.

Real Intrigue or a Red Herring?

Both National Party candidates are considered right wing and both were assisted in their primary campaigns by the new generation of Latin American 'King Makers', campaign strategists with Miami connections. J.J. Rendon, a Venezuelan resident of Miami and die-hard anti-Chavez activist, and Spaniard Antonio Sola have ushered right wing candidates into presidencies from Chile to Haiti to Guatemala to Mexico all since 2006, in some cases amidst fraud and corruption scandals. In the National Party primaries, Antonio Sola advised Ricardo Alvarez and J.J. Rendon, who had worked for current President Lobo, advised Juan Orlando.

Both 'strategists' are backed by powerful interests, and have managed extremely expensive and not at all transparent campaigns, replete with intrigue. Interpreting the real configuration of power behind them is tricky, as is understanding the apparent infighting among Honduras' ruling class and political party bosses through reports in the press they control. It is impossible to know what really may be going on, and what may just be an elaborate distraction.  

There is fear in Honduras that as the 2013 elections are increasingly scrutinized and challenged by the movement that arose in resistance to the 2009 coup, traditional political bosses may resort to fabricating a governability crisis and averting the elections entirely, possibly even convoking a manipulated, anti-democratic Constitutional Assembly organized by an interim government.

What is clear about recent events is that they illustrate why Hondurans are so distrustful of the electoral process as a whole, and why social movements have mobilized to end corruption, promoting a functional justice system (even if that means criticizing the unconstitutional manner in which a corrupt court was dismissed), and advancing a genuine alternative to politics as usual.

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