US embassy cable - 02TEGUCIGALPA3349

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. 
 
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JUDICIAL REVIEW OF CONGRESSIONAL PROPOSAL 
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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.) 
 
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ATTORNEY GENERAL AND CIVIL SOCIETY WEIGH IN 
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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.) 
 
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ABOUT THE LAW... 
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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." 
 
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COMMENT 
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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