SUPREME COURT ROLLS BACK 2001 CONSTITUTIONAL

C O N F I D E N T I A L SECTION 01 OF 03 TEGUCIGALPA 001021 SIPDIS E.O. 12958: DECL: 11/13/2018 TAGS: PGOV KDEM KJUS SOCI HO SUBJECT: SUPREME COURT ROLLS BACK 2001 CONSTITUTIONAL REFORMS; OFFICE OF VICE PRESIDENT ELIMINATED Classified By: Ambassador Hugo Llorens, reason 1.4 (b & d) ¶1. (C) Summary: The Supreme Court ruled on November 14 to turn back 2001 reforms to the Constitution that established the office of the Vice President. The case effectively abolishes the office and returns Honduras to a system with three presidential designates. Those candidates running for president will now have to select two more vice presidential designates to add to their slates. The case is not retroactive and allows Vice President Elvin Santos to serve out his term. The case does not, however, consider Santo's current candidacy, although the media has already interpreted the decision as disqualifying him from running. Santos will take his case to the Supreme Court soon (either November 14 or 17),which could return a decision either before or after the primaries. In the meantime Mauricio Villeda will continue to stand-in as Santos' placeholder until the court decides on Santos' case. The Congress met this morning (November 14) in an emergency session and voted to publish a decree to return the constitution to its original 1982 form---in effect ratifying the courts decision. In a subsequent conversation the Ambassador had with OAS Head of Mission for Election Observation Raul Alconada, both agreed that despite all of the political and constitutional machinations, the key was to stay focused on the holding of free and fair primaries in Honduras on November 30. The Ambassador and Alconada agreed to work in close coordination in support of this key objective. End Summary. Background: Vice President versus Designates -------------- ¶2. (C) Living with a legacy of frequent coups and other extra-legal power struggles, the drafters of the Constitution of 1982 decided that power should not be concentrated in one vice president, who could be seduced by the idea of taking power for him or herself. The drafters thus instituted three presidential "designates" who had assigned portfolios, but had no real power or control over policy. By 2000, political forces decided this safeguard was no longer necessary, and a reform was proposed by a broad group of politicians to create the office of the Vice President. The group included then-President of Congress Porfirio "Pepe" Lobo, head of the Liberal Party caucus, Roberto Micheletti (both currently presidential candidates, and current President Manual Zelaya. The reform of constitutional articles 239 and 240 passed in 2001 and Zelaya was inaugurated with Elvin Santos as his Vice President in 2006. Repeal of the Reform -------------- ¶3. (C) In early November of this year, state Prosecutor Rene Tome, acting independently of the Attorney General (pundits speculate that he was most likely under the instructions of Zelaya),submitted a case to the Constitutional Hall of the Supreme Court contesting the constitutionality of the 2001 reforms. His argument was that article 374 of the Constitution lists which articles can never be reformed -- a list that includes articles 239 and 240. The Constitutional Hall, which consists of five constitutional experts taken from the group of 15 Supreme Court magistrates, considers all cases of constitutionality, and if its decision is unanimous, the case does not pass to the entire court, nor is there possibility of appeal. If the group does not reach a unanimous decision, the case goes to the plenary of the Supreme Court. In this case, the Constitutional Hall issued a unanimous ruling on Tome's case, finding that the reform of the articles was indeed unconstitutional, and repealed the reform, returning the articles to their original state. The decision effectively abolishes the office of the vice president, but it is not retroactive, which means that Santos remains vice president until the end of his term. Ramifications of the Decision -------------- ¶4. (C) The Constitutional Hall's decision forces candidates for the November 30 primaries to add two more presidential TEGUCIGALP 00001021 002 OF 003 designates to their slates to comply with the original constitution. The decision did not, however, address the candidacy of current Vice President Elvin Santos, who has told us he will take his case to the Supreme Court on November 14 or 17. The Supreme Electoral Tribunal (TSE) has said it has already printed the ballots with the photos of the presidential candidates and their vice presidential running mates, and it will not have the time of funding to be able to print new ballots. In the past, the presidential ballots did not show any of the designates, so experts are arguing that reprinting the ballots to add the two new figures is unnecessary. The TSE will most likely announce the additional two presidential designates for each candidate and make that information readily available to voters. Next Steps -------------- ¶5. (C) Following the final decision by the Constitutional Hall, the Congress, which is in recess, was called into an extraordinary session and approved a decree on November 14 to send the Court,s decision for publication in the official register. How does this affect Santos? -------------- ¶6. (C) Although the decision does not directly address Santos' candidacy, the media is saying that Santos has been ruled ineligible. He told the Ambassador on November 13 that he will take his case to the Supreme Court on November 14, but we understand from Supreme Court President Vilma Morales that the court bureaucracy could delay a decision before the primaries are held. From our experience, however, we know that if there is sufficient political pressure, the court could turn around a decision very quickly. If the decision comes after the primaries, and Santos' stand-in candidate, Mauricio Villeda's, wins the primaries, then Santos' case and the accompanying public pressure, would be much stronger. Hondurans have a history of rallying around those they view as martyrs, such as the case of Ricardo Maduro's candidacy in 2004, and if Santos wins the primary through his stand-in and is not allowed to run, Santos could garner more public sympathy and support. If Villeda does not win the primary on Santos' behalf, Santos tells us he would be happy to return to private life at his construction company. The Ambassador advised Santos that his appeal to the Supreme Court should be based entirely on the law and that he should make his case to the public in simple, legal terms that they can understand. The Ambassador counseled that if he loses, Santos should avoid inciting the passions of his supporters to the point that it engenders violence. Santos said that the public was tired of the deception and manipulation by the political class and agreed he would approach the issue in easy to understand, legalistic terms. ¶7. Liberal Party President Patricia Rodas came out strongly in the media to call for the "punishment" of those who illegally changed the constitution (the law allows for jail time and makes those found guilty ineligible for public office for ten years),ignoring the fact that Zelaya himself was a party to the 2000 reform. She singled out both Lobo and Micheletti as people who should be punished, which would leave Mario Canahuati and Eduardo Maldonado as the two contenders for the presidency. Rodas also issued public calls for a constituent assembly to be called in order to draft a new constitution. No other public officials have supported these ideas, although they've gotten echo in some parts of the media. (Comment: We do not believe attempts to castigate reformers will gather any traction, because of the sheer numbers of powerful figures who were involved in the reform. Nor to we believe a constituent assembly likely.) Comment -------------- ¶8. (C) We agree with Santos' evaluation that the events of the last few days were orchestrated in order to hurt his candidacy and also to instigate chaos, on which Zelaya TEGUCIGALP 00001021 003 OF 003 thrives. Our message to our contacts has been to tell them to keep their attention on the November 30 primaries. Nothing is more important then making sure the Honduran people get their opportunity to vote. In response to press questions, the Ambassador has stressed the importance of the November 30 primaries as an opportunity for the people to make a statement and to select the candidates of their choice. The Ambassador also spoke on November 13 to OAS's Head of Mission for Election Observation Raul Alconada, who agreed that despite all of the political and constitutional machinations, the key was to stay focused on the holding of free and fair primaries in Honduras. The Ambassador and Alconada agreed to work in close coordination in support of this key objective. End Comment. LLORENS