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Cable reference id: #03TEGUCIGALPA1108

“All of them, those in power, and those who want the power, would pamper us, if we agreed to overlook their crookedness by wilfully restricting our activities.” — “Refus Global“, Paul-Émile Borduas

Hide header C O N F I D E N T I A L SECTION 01 OF 02 TEGUCIGALPA 001108 SIPDIS STATE FOR WHA/CEN, INL/ENT, DRL/PHD, AND EB STATE PASS AID FOR LAC/CEN E.O. 12958: DECL: 05/12/2013 TAGS: PGOV [Internal Governmental Affairs], PREL [External Political Relations], PHUM [Human Rights], KJUS [Administration of Justice], KCRM [Criminal Activity], SNAR [Narcotics], HO [Honduras] SUBJECT: HONDURAN SUPREME COURT RULES IT HAS AUTHORITY TO INTERPRET CONSTITUTION; CONGRESS VOWS A FIGHT REF: 02 TEGUCIGALPA 3349 Classified By: Ambassador Larry L. Palmer Reasons 1.5(b) and (d). ¶1. (U) SUMMARY: On May 7, in a unanimous 15-0 decision, the Honduran Supreme Court declared its authority to interpret the Constitution by ruling on a controversial constitutional amendment passed by Congress in 1999. The Court's decision struck down as unconstitutional Article 218(9) which provides that interpretations of the Constitution by Congress are not subject to presidential veto or presidential approval. By exercising its constitutional prerogative of judicial review, the court's decision firmly established the body as final arbiter to interpret the Constitution. However, Congress has exercised its political supremacy historically to interpret the Constitution. The court's decision has put the body squarely on a collision course with Congress, which may act, possibly as early as tomorrow, to thwart the court's ruling. END SUMMARY ¶2. (U) On May 7, in a unanimous 15-0 decision, the Honduran Supreme Court declared its authority to interpret the Constitution by ruling on a controversial constitutional amendment passed in 1999. The Court's decision struck down as unconstitutional Article 218(9) which provides that interpretations of the Constitution by Congress are not subject to presidential veto or presidential approval. ¶3. (U) On November 13, 2002 Human Rights Commissioner Dr. Ramon Custodio, with the support of civil society, filed a lawsuit alleging that the Congressional amendment violated the separation of powers provision on the Constitution and was thus unconstitutional (reftel). (Note: Historically, Congress has exercised its political supremacy to interpret the Constitution. End Note.) On January 10, 2003, the Public Ministry issued an ambiguous opinion that ultimately concluded that the claims of the Human Rights Commissioner were incorrect and that Article 218(9) was not unconstitutional. The Court's May 7 ruling, however, affirmed the position of the Human Rights Commissioner, putting the body squarely on a collision course with Congress over which body has the ultimate authority to interpret the Constitution. ¶4. (U) The issue has received significant press coverage over the last few days as speculation mounts over what move Congress will make next. Many Honduran NGO's are mobilizing over the issue, with most favoring the Court's decision and opposing any congressional action. Post notes that neither President Ricardo Maduro or any other senior GOH official has issued any statements on either the Supreme Court's ruling or possible congressional action in response to the ruling. ¶5. (SBU) Pepe Lobo, President of the Congress, told the Political Section May 12 that he believed the press was over-blowing the issue. He confirmed that he would be meeting with other congressional leaders later in the day to discuss possible congressional action, but indicated he believed that nothing "drastic" was in the works. However, some observers feel Congress might act to pass proposed legislation authorizing the body to remove any sitting government official it had confirmed, including Supreme Court Justices, thus giving Congress the ability to manipulate further court proceedings. Some press articles have speculated that Congress might act to impeach the five members of the constitutional chamber of the Supreme Court. ¶6. (C) Ambassador met May 12 with Custodio at Custodio's request to discuss the issue. Custodio termed the situation "an unnecessary scandal." He noted that of the five judges on the constitutional chamber, three are considered to be Nationalists and two are considered to be Liberals. Custodio said that Congress does not currently have the power to remove judges merely for displeasure over a ruling. However, if Congress passes the proposed legislation authorizing the body to remove any sitting government official it had confirmed, it will have the power to do exactly that. Custodio said he does not think that Congress will remove the five judges. He noted that the Supreme Court's ruling on Article 218(9) in turn also invalidates Article 205(10), which Congress passed August 8, 2002 but has yet to ratify. Article 205(10) would explicitly grant congress the power to interpret the Constitution through a single two-thirds majority vote in one session (reftel). Custodio urged the G-15 to discreetly raise its views with Congress and the public to make it clear that international donors were watching the situation closely. ¶7. (C) COMMENT: The Supreme Court's ruling marks a watershed in Honduran jurisprudence. By exercising its constitutional right to interpret the Constitution, the Court has established itself as an essential check-and-balance on congressional excesses. Congress, however, is unlikely to simply accept the Court's ruling. Post is wary that Congress may act rashly and retaliate with actions that could greatly harm the rule of law and separation of powers in Honduras. EmbOffs are quietly raising Post's concerns with NGOs, the GOH, and Congress. Post is also pushing the G-15 to make a joint statement supporting the Supreme Court's ruling and urging the Congress not to try to overturn the ruling or take other misguided steps. END COMMENT Palmer