Honduran Supreme Court should clarify resolution that declares MACCIH constitutional

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Honduran Supreme Court should clarify resolution that declares MACCIH constitutional

Captura-analysis fallo2
  • The resolution limits the cases on which the international anti-corruption body is permitted to work, violating the original intent of the agreement and increasing impunity in the country
  • In context of recent legislative actions limiting the fight against corruption in Honduras, the political nature of the ruling is clear

On May 29th, 2018, The Supreme Court of Justice (CSJ) in Honduras emitted a resolution responding to an action of unconstitutionality against the Support Mission against Corruption and Impunity in Honduras (MACCIH), which challenged the mission’s legality. Though this resolution declared the MACCIH to be constitutional, its preamble also seems to limit the scope of the anti-corruption body’s actions. Honduran politicians and public officials have faced increased scrutiny in the months following the November 2017 election, and in response, have taken legislative action to protect themselves. Seen in this context, this resolution leaves open the opportunity for judicial interpretation that privileges the corrupt and sets back the fight against impunity in the country.

Recent judicial action, aided by the MACCIH and the Anti-Corruption Unit of the Attorney General’s office (UFECIC), has challenged powerful political authorities, prompting fierce backlash. On December 11th, 2017, a case referred to as the “Network of Congressmen” was brought against five former Congressional deputies for the misappropriation of 8.3 million lempiras, or about $350,000. In response, the National Congress reformed the country’s Budget Law to require any investigation of misuse of public funds by members of Congress to be reviewed by the notoriously-slow Superior Auditing Court before proceeding to criminal investigation. This reform – known commonly as “the Impunity Pact” – protected officials who served between 2009 and 2017, effectively shielding them from punishment. It shielded the five former Congressmen, whose case is currently archived.

Another emblematic case is that of the “First Lady’s Cashbox”. On February 28th, 2018, the investigative office of the Public Ministry (Attorney General’s office) arrested former First Lady Rosa Elena Bonilla, who was accused of writing checks with public funds to friends and family, who would then give her the cash. Bonilla was also accused of transferring public funds to her personal bank account just days before her husband, Porfirio Lobo Sosa, finished his term as President. The National Congress responded to this case with an attempt to reform the Asset Forfeiture Law, prohibiting the seizure of any assets until a conviction had been reached (current legislation allows for seizure upon arrest). After a public outcry, this reform was vetoed by President Juan Orlando Hernández on April 2nd, 20218.

These two cases, among many others, illustrate a consistent reaction by political officials and members of Congress to anti-corruption efforts, and the risk of investigative bodies such as UFECIC and MACCIH to retributive legislative action.

On March 6th, 2018, an action of unconstitutionality against the MACCIH was presented to the Supreme Court by Juan Carlos Sánchez Cantillano, representing three citizens who claimed to be personally affected by the legislative decree allowing for the installation of MACCIH in the country. It is worth noting that Sánchez Cantillano is also the defense lawyer for the five Congressmen charged in the corruption case above. This action of unconstitutionality claimed that the MACCIH was unconstitutional first for the way its decree affected the sovereignty and independence of the State of Honduras; and second, for the form in which the agreement was approved.

The decision of the Supreme Court to accept this action for consideration, however, showed inconsistency with previous and posterior actions. The Supreme Court had refused to admit on February 13th, 2018, an action of unconstitutionality made on similar grounds against the “Impunity Pact” created by reforms to the Budget Law. Furthermore, when the civil society organizations the Association for a More Just Society (ASJ) and the National Anti-Corruption Council (CNA) presented an action of unconstitutionality against the Impunity Pact, the court denied their “direct, personal, and legitimate interest” in the legislation – just weeks later, they would recognize this interest in the three citizens using similar arguments to make a claim against the MACCIH.

In addition to inconsistencies in the admission of the action of unconstitutionality, the scope of the resolution also goes beyond the mandate of the Supreme Court’s Constitutional Division, who heard the case. The action of unconstitutionality challenged the MACCIH on the grounds of its legal mandate, not on its institutional or procedural aspects; nonetheless, the resolution purports to hold the MACCIH’s future operations to statements laid out in the resolution.

The question of the resolution lies in its preamble and in the recitals that serve to limit the MACCIH. Recital 25, for example, declares that “The processes of training, oversight and analysis that the MACCIH performs… should… be treated in the abstract”. This limits the MACCIH’s work towards general topics, not specific, emblematic cases of corruption such as that of the Network of Congressmen and the First Lady’s Cashbox. Recital 26 claims that, because the MACCIH has integrated itself within the judicial system, it cannot evaluate the performance of judges and prosecutors working within the judicial system. This argument contradicts the precedents of the Inter-American Convention against Corruption and regulations of the Organization of American States.

Several more recitals also weaken and challenge the operations of the MACCIH. These challenges, when seen in the context of coordinated attacks against anti-corruption bodies, show a clear political nature to the resolution, undermining the Supreme Court’s judicial independence and objectivity. The action of unconstitutionality that gave rise to this resolution should not be seen as an isolated act. Overall, if not rectified, this resolution could lead to greater impunity in the Honduran state. Furthermore, members of the Supreme Court’s Constitutional Division may even be guilty of Abuse of Authority, due to an overreach of their positions’ mandate, and an intent to violate the MACCIH’s rights by international treaties and agreements.

In conclusion, the wave of protests that followed revelations of a multi-million dollar theft from the Social Security Institute in 2016, and that led to the formation of the MACCIH, have not yet seen their resolution. Two years later, the reality of political corruption and the theft of public funds persists. It is therefore necessary that the Constitutional Division of the Supreme Court clarifies their resolution, if it truly intends to show itself independent of external interference and faithful to rule of law.

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