HONDURAN SUPREME COURT RULES IT HAS AUTHORITY TO

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