When will Honduras have a Supreme Court? (And why it matters)

Ever since the 2009 coup in Honduras, the Supreme Court has played a starring role in some of the most important political controversies in that country, and this year is no exception. According to the Honduran Constitution, by January 25^th of this year, the Honduran Congress should have selected 15 members of the Honduran Supreme Court, to serve together for a seven-year term (2016-2023).  These 15 should be chosen from a slate of 45 candidates, presented by a nominating board with a diverse make-up of political actors.  However, up until now, and following what observers have referred to as a flawed process, the Honduran Congress has been able to agree only upon eight justices. The fourth session to attempt to complete the roster will be held today, and El Heraldo is reporting that is some likelihood they will come to an agreement on the remaining seven justices.

The reason for the delay has everything to do with electoral politics, and how much has changed since the 2009 coup, but particularly in the last two years since the congressional make-up evolved from an essentially two-party system (with power divided between Liberals and Nationals) into a multi-party system (with two major opposition parties, LIBRE – headed by former President Manuel Zelaya – and the Anti-Corruption Party, or PAC, headed by Salvador Nasralla).  In the 2013 elections, the Liberals and Nationals fell three votes shy of a 2/3 majority – the amount required to elect the Supreme Court -- for the first time since the early 1980s.  So when it came time for Congress to a vote on the 15 justices agreed upon between the Nationals and Liberals, they could not muster votes for the entire package.

Until now, the opposition parties have been firm in resisting the imposition of the remaining candidates, basically protesting two major issues: (1) the fact that all of the candidates are only from the two traditional parties and (2) that many are incompetent, at best, or corrupt, at worst.  LIBRE has refused to negotiate at all, whereas the PAC has agreed to sign off on six candidates they think are relatively good, and conceding one other that was nominated by the government, according to a report last week in La Tribuna.  The PAC also conditioned its support on two longstanding electoral reform demands:  to include the four major parties in an Executive Electoral Council that would supervise the overhaul of the electoral system, and that a second round in the presidential race be required.

But just how reasonable are those demands? On the first point, it’s worth noting that the current Supreme Electoral Tribunal is run by authorities from the Liberals and Nationals, despite the fact that LIBRE is now the second largest party, but those authorities were hastily and prematurely elected before the current, more diverse Congress assumed power.  And on the second point, in fact it is no different than what all of the political parties agreed to before the last elections, and that included the assent of then-president of the Congress, Juan Orlando Hernandez (who took office on the first round with 37% of the vote). (See further details in the most recent Congressional Research Service report.)

Nevertheless, the Liberals and Nationals only need three votes, and El Heraldo is reporting this morning that it seems they will have two votes each from the PAC and LIBRE parties, giving them a safe margin of victory by one vote.  If this turns out to be the case, you might be asking yourself, just what kind of shenanigans took place behind the scenes to get these two legislators to vote for the National/Liberal package of justices?  

Well, the answer may well be found in recent allegations -- surfaced by Radio Globo reporter David Romero Ellner (and cited yesterday by the invaluable Honduras Culture and Politics blog) – that the National Party has been funneling money to a trade association, which in turn has paid off legislators to support various National Party projects, including for their Supreme Court candidates.  While this is excellent fodder for the yet-to-be-installed MACCIH (international anti-corruption commission), it remains to be seen if these charges will get any traction from the Attorney General’s office.

So why does all of this matter?  One can think of many reasons not to let the opposition into the hallowed chambers of the Supreme Court, but none more important than staving off any attempt to reverse the prior, illegal ruling by the current constitutional court made last year in favor of presidential re-election. (And that ruling could only come about because Congress had, in 2012, illegally dismissed four of the five justices on the constitutional court – the lone justice left untouched was later rewarded with the post of Attorney General, Oscar Chinchilla, who continues to this day.)   Prior to this vote, which it appears the opposition parties might lose, a year ago they had been successful in defeating the President’s attempt to raise the status of the new military police in the Constitution.  But there will be only so much they can do if the Supreme Court elected for the next seven years remains beholden to the two traditional parties.