US embassy cable - 03TEGUCIGALPA1108

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, PREL, PHUM, KJUS, KCRM, SNAR, HO 
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