|Wikileaks:||View 02TEGUCIGALPA3349 at Wikileaks.org|
|Tags:||KJUS PGOV HO|
|Redacted:||This cable was not redacted by Wikileaks.|
This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 02 TEGUCIGALPA 003349 SIPDIS STATE FOR WHA/PPC, WHA/CEN E.O. 12958: DECL: 12/13/2012 TAGS: KJUS, PGOV, HO SUBJECT: BATTLE OVER CONSTITUTIONAL INTERPRETATION RAGES Classified By: PolChief Francisco Palmieri, Reasons 1.5(b) and (d). 1. (U) SUMMARY: On December 4, the Supreme Court took the first step in analyzing constitutional amendments proposed by Congress that would give Congress unfettered power to interpret the constitutionality of laws they pass. The Constitutional Chamber of the Court asked Congress to explain why it was attempting to alter the Constitution in a manner that ostensibly usurps traditional judicial authority. If the amendments become effective, the judiciary will lose its authority to construe the Constitution, and Congress will be free to interpret the constitutionality of laws with a two-thirds majority vote. Three weeks ago, the National Human Rights Commission filed a lawsuit asking that the Supreme Court declare the proposals unconstitutional and in violation of the "separation of powers" provision in the Constitution. The Attorney General will soon be issuing an opinion regarding the legality of the proposed amendments. END SUMMARY. ----------------------------------------- JUDICIAL REVIEW OF CONGRESSIONAL PROPOSAL ----------------------------------------- 2. (U) On December 4, the Supreme Court took the first step in analyzing a constitutional amendment proposed by the National Congress that would give Congress unfettered power to interpret the Constitution. The Constitutional Chamber of the Supreme Court asked Congress to explain its motives behind the unprecedented attempt to give itself unlimited authority to interpret the Honduran Constitution. 3. (U) On November 13, 2002, the National Human Rights Commission, with the support of civil society, filed a lawsuit alleging that the Congressional move violates the separation of powers provision of the Constitution and thus is unconstitutional. The Court has not yet ruled on the issue, but is expected to do so between now and when Congress reconvenes on January 25, 2003. (Note: The Supreme Court is scheduled to recess between December 15 and January 6. End Note.) ------------------------------------------- ATTORNEY GENERAL AND CIVIL SOCIETY WEIGH IN ------------------------------------------- 4. (U) The Attorney General's Office will soon issue a legal opinion about the legality of the proposed amendments. Attorney General Roy Medina said that his office previously issued an opinion on this subject, and that the previous opinion will be released at the same time as the new one. While Attorney General opinions tend to carry great weight, they do not amount to law and, therefore, do not have to be followed. 5. (SBU) On December 10, 2002, the Coalition for the Strengthening of Justice (made up of several civil society organizations) launched a campaign to increase public awareness and stimulate policy dialogue about the issue. The Coalition staunchly opposes the attempts by the National Congress to usurp judicial review and undermine the separation of powers. Its campaign will focus on defending the Constitution, and will include advertisements on radio, television and in the newspapers. (Note: Civil society helped the Human Rights Commission prepare its legal brief for the challenge before the Supreme Court. End note.) ---------------- ABOUT THE LAW... ---------------- 6. (SBU) There are actually two (2) constitutional amendments at stake. The first amends section 218(9) of the Constitution and eliminates the President's power to veto Congressional interpretation of the Constitution. The section 218(9) amendment was passed last year, presumably in anticipation of more recent attempts to alter the Constitution. The lawsuit filed by the Human Rights Commission is primarily based on the section 218(9) amendment. Congress is in the process of trying to pass an amendment to section 205(10) of the Constitution--a change that would expressly bestow upon Congress exclusive interpretive authority. (Note: The aforementioned lawsuit also refers to the section 205(10) issue, which is arguably not yet ripe for official judicial review. End note.) 7. (SBU) If the amendments become final, Congress would have unlimited power to interpret the Honduran Constitution. The proposed constitutional amendment (205(10)) would permit Congress to construe the Constitution with a two-thirds vote in just one (1) regular session of Congress. Constitutional interpretation of laws is traditionally the role of the judiciary, and such judicial review is an integral part of the "separation of powers" concept in a democratic system. (Note: The Honduran Constitution contains a separation of powers provision. End Note.) Moreover, the President would have no veto power over this type of Congressional action (under the amendment to section 218(9)), meaning that the Congress could make constitutional determinations without any "check and balances." ------- COMMENT ------- 8. (C) The proposed amendments would thwart judicial review of the constitutionality of Honduran laws and represent a clear threat to the concept of separation of powers--which is a cornerstone of a democratic system and judicial independence. Pursuant to Honduran law, the Constitutional Chamber of the Supreme Court is responsible for protecting the integrity of the Constitution. Should Congress succeed in usurping the Court's powers, the stability and independence of the Supreme Court will be seriously compromised as would a basic tenant of democracy. 9. (C) Conventional wisdom suggests that the Supreme Court will likely rule that the amendments should not take effect because they are unconstitutional and improper. It is uncertain what position the Attorney General will take, but more likely than not he will cite the separation of powers requirement in the Constitution and find that the proposed changes are unlawful. End Comment. PIERCE
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