An Independent Supreme Court in Honduras: The Key to Justice and the Fight Against Corruption

For the first time in a long time, Honduras is facing the possibility of electing independent magistrates to the Supreme Court of Justice. If this happens, the country will take a step that would allow it to clean up its justice system; otherwise, Honduras will remain stuck with courts and laws that do not guarantee judicial independence and that respond to the interests of the criminal networks that characterize a kleptocratic state.

This crossroads is marked by the selection process for the next Supreme Court justices, a fundamental step in the structural reforms needed to guarantee the independence of the Honduran judicial system, as well as a prerequisite for the eventual installation of an International Commission Against Impunity in Honduras (Comision Internatcional Contra la Impunidad en Honduras, CICIH). And, at this moment, the leaders of the Legislative and Executive branches, the Honduran citizenry and the international community play a decisive role in guaranteeing the transparency of the process.

Since her candidacy for the presidency, Xiomara Castro and her political party, LIBRE, emphasized their commitment to fight corruption and promised the installation of a CICIH. Castro reiterated those promises in January 2021 when she was sworn in as president and reiterated them last September before the United Nations General Assembly, from which her government has requested technical, political, and financial assistance to get the Commission up and running. However, several civil society groups have doubts as to whether the political will exists to install the CICIH and whether the government’s negotiations with the UN will culminate in guaranteeing the independence of the CICIH to investigate and prosecute high impact cases. After months of negotiations and many expectations, Castro’s administration is scheduled to sign a memorandum of understanding with the UN to install the commission. 

However, before the installation of the CICIH, the Honduran state must first guarantee the election of an independent Supreme Court of Justice, capable of shaking off the accusations of the past, purging the judiciary of the illicit networks that have co-opted it, and leading a process of reform in an efficient and timely manner.

In this commentary, WOLA analyzes the selection process of the new CSJ, from the legal reforms that establish new mechanisms for the selection of a nominating board of candidates for magistrates to the main political challenges and the current context in Honduras.

Nominating Board Law: A Necessary Reform

With the intention of improving the independence of the Judicial Branch and guaranteeing the suitability of the elected magistrates, the National Congress approved in July 2022 the Special Law for the Organization and Operation of the Nominating Board for the Nomination of Candidates for Magistrates of the Supreme Court of Justice as a legal tool that seeks to limit discretionality and the interference of external interests in the selection of magistrates.

The new law has been an essential step in guaranteeing judicial independence in Honduras and therefore an important element to address the endemic impunity in the country, which in the case of homicides in 2020 was 95 percent. The Central America Monitor  – a collaboration between WOLA, IUDPAS in Honduras, IUDOP in El Salvador and the Myrna Mack Foundation in Guatemala  – monitors seven corruption-related crimes. The table below shows how few complaints advance in the Judiciary in Honduras, and how even fewer end in convictions. 

Abuse of Authority, 2014 – 2021 (Central America Monitor)[1]

[1] Not all complaints reported to the Public Prosecutor’s Office in one year make it to the Judiciary in the same year. However, the calculations give an idea of the average. 

The nomination and election process of the Nominating Board (Junta Nominadora, JN) is regulated by the Honduran Constitution and by the new version of the organic law, approved last July. In general, the JN is made up of seven bodies, each responsible for electing two representatives, one principal magistrate and one alternate. The organizations involved in the conformation of the JN are the Bar Association, the National Commissioner of Human Rights (Conadeh), the Honduran Council of Private Enterprise (Cohep), the Faculty of Legal Sciences, the Confederations of Workers, and civil society.

In August, the organizations accredited their representatives to the JN, who were sworn in in September. In October, the call for candidates to participate in the process was opened. In January 2023, the JN will deliver a list of 45 candidates, from which the 15 new judges of the CSJ will be elected and will integrate the Constitutional, Criminal, Civil-Administrative and Labor chambers for the period 2023-2030.

Currently, the process of selection of magistrates by the JN is in its final stage. Out of 185 people who applied as pre-candidates -53 men and 132 women-, the Board pre-selected 105: the rest were dismissed after going through the first filter of the legal procedure, which included toxicology tests, analysis of the applicants’ documentation, and a knowledge test.

The process has not been free of controversy. For example, in the first pre-selection round, some candidates included were identified as having been the subject of administrative or criminal investigations or having close links to political parties. In mid-November, there were also allegations that the JN had leaked some of the questions on the knowledge test to which the candidates had to submit themselves, something that the body said it was investigating.

In October 2022, the Inter-American Commission on Human Rights of the OAS (IACHR) joined civil society organizations in calling on the Honduran state to guarantee respect for the processes for the selection of an independent court in January 2023. An International Observation Mission (MIO), chaired by Peruvian jurist Juan Jiménez Mayor, requested on December 11 that the JN publish on its transparency portal the profiles of all persons shortlisted as candidates to integrate the new CSJ.

About the Nominating Board Law

The first step in this process was the approval of the new law to elect the members of the Nominating Board, which was a positive sign of the intentions of the new Honduran political order to lead legal-institutional reforms and to create the conditions for the election of the Supreme Court of Justice to be more transparent and based on professional and academic merit. The law approved in July for the selection of nominators has, undoubtedly, positive elements:

• Parameters of Suitability: by establishing specific guidelines regarding the profile of the members of the Nominating Board as well as the professional and ethical merits of those who will choose the candidates for magistrates, which were not verified before.
• Participation of diverse actors and civil society: It includes in the selection process of nominators institutions that had already done work on anti-corruption in Honduras, such as the Specialized Prosecutor Unit against Corruption Networks (UFERCO), and others recently created, such as the Secretariat of Transparency of the Executive Branch. This is important because it provides an opportunity to present appeals when a candidate does not meet the requirements or has been accused of acts of corruption or links with criminal networks. On December 19, this complaint process opens.
• Promotes gender equity: the new law introduces regulations to guarantee the equal participation of men and women in both the list of candidates and final integration of the court. The list of candidates must have a minimum of 23 women and 22 men and the CSJ’s final makeup must include at least 7 women.

The Nominating Board must send the list of candidates to the National Congress no later than January 23 and with 86 votes, the members of congress will be responsible for electing the new court. 

Irregularities

Even with the positive elements of the new law, some critics point out that the law did not establish all the necessary blocks to avoid the inappropriate influence of political elites. For example, by eliminating three clauses proposed in Article 15 which prohibited candidacies of persons who had family ties with members of the Nominating Board itself, Congress, or with high level public officials, or who were members of political parties. According to an investigation by the independent media Contracorriente, at least 9 officials and former officials identified with the parties have run as candidates for magistrates. In addition, several postulants who have already passed the first filter do not meet the necessary suitability and independence requirements due to their links to drug trafficking and to former President Juan Orlando Hernández. Some examples:

César Pinto Pacheco: Alternate for Congresswoman Lissi Cano of the National Party, Pinto Pacheco is alleged to have links to the Rivera Maradiaga family of the gang known as Los Cachiros, a criminal organization dedicated to drug trafficking that has operated in Honduras for several years. 

Erika Cálix: Judge accused of issuing judicial rulings that favor drug traffickers, including her brother Mario José Cálix Hernández, whom the United States requested for extradition. Journalistic and civil society reports revealed that in 2013, Judge Cáliz favored two Colombian drug traffickers, Rubén Darío Pinilla and Jester Orlando Miranda, by releasing them without complying with legal procedures. Pinilla and Miranda were captured while guarding a drug lab linked to Juan Antonio Hernández, brother of former president Hernández and sentenced to life imprisonment in the United States for drug trafficking.

Carlos Gómez: Indicted for possible political ties to the current administration due to his relationship with former President Manuel Zelaya. Between 2002 and 2009, Gómez had ties to Sonia Marina Dubón, wife of Enrique Flores Lanza, who was benefited by an amnesty law and sanctioned in 2022 by the U.S. State Department as a corrupt and undemocratic actor under section 353(b) of the Foreign Operations and Related Programs Appropriations Act.

Iván Martínez and Rosa Elena Bonilla: Defense attorneys for Juan Orlando Hernández in his extradition proceedings.

Luis Padilla: Former prosecutor of the Public Prosecutor’s Office, lawyer of the firm Antúnez & Asociados and who has defended members of the National Party.

Congress also eliminated another provision in the original law that prohibited people with criminal charges of domestic violence, failure to pay child support debts, or other crimes from running for office. Although there was an attempt, largely pushed by civil society, to ensure that candidates indicted for such crimes would not participate in the process, in the end Congress validated the prohibition only in cases of final sentences; however, given the historical level of impunity in Honduras, this does not seem sufficient.

As the case of Guatemala has shown, even with legal blocks and with nomination mechanisms based on suitability and transparency, if the processes established both in their literality and in the spirit of the law are not complied with, these selection mechanisms can be violated by political elites and corruption networks, so that the common interest does not prevail over that of sectors that have previously enjoyed impunity.

An Independent Court: Guaranteeing the Rule of Law

This attempt to guarantee the independence of the Honduran judicial system comes after a decade and a half in which networks of political corruption and organized crime, especially drug trafficking, were able to co-opt a decent part of the institutions of the Honduran state, to the point of turning it into a kleptocratic state.

The penetration of drug trafficking, for example, reached the highest spheres of political power, including Hernández’s presidential palace. This was evidenced by the criminal investigations carried out by U.S. agents in the framework of several judicial processes opened in the U.S. against drug traffickers and high-ranking officials, including former President Hernández, who was extradited to New York in April 2022.

The networks of impunity grew in Honduras and came to co-opt, in addition to the Executive branch, important sectors of the Legislative branch, local political power, and the security forces.

Although at the end of 2015, at the initiative of the Hernández government, the Organization of American States (OAS) accompanied the creation of the Support Mission Against Corruption and Impunity in Honduras (MACCIH), a supranational mechanism with a mandate to support the Public Prosecutor’s Office in white-collar investigations, its work was limited during the years of its mandate.

For example, in 2019, in part at the behest of the same Supreme Court and the Legislature, both branches then dominated by Hernández’s National Party, Congress approved a set of reforms that lowered penalties for corruption and drug trafficking, which hindered investigations by the MACCIH and a special prosecutor’s office created to investigate and prosecute cases of grand corruption.

One of the most important lessons learned from the MACCIH experiment is that without independent judicial and oversight institutions, a supranational body such as the one now being proposed in the CICIH ends up being very weak. Even the national mechanisms and institutions that already exist in Honduras, such as the Specialized Prosecutorial Unit Against Corruption Networks (UFERCO), which has already litigated cases involving former presidents, members of Congress, and other officials, end up being damaged by the obstacles imposed on them by the high courts or Congress.

That is why the election of the 15 new Supreme Court justices in the National Congress takes on greater relevance: if, next January, the Nominating Board fails in its mission to nominate honest candidates who are not marked by commitments to corrupt political sectors or those related to organized crime, Honduras will lose a great opportunity, which is now open, to take steps towards a more transparent, democratic, and effective justice system.

What is happening in Honduras, in terms of the democratic quality of its new Supreme Court and the renewal process it may undertake, will also be important for Central America, especially for the so-called Northern Triangle, also formed by Guatemala and El Salvador, two countries now marked by the authoritarian tendencies of their leaders, the dismantling of efforts to combat corruption, and the little or complete absence of independence of their judicial bodies.

Recommendations

Honduran civil society and the international community should continue to keep a close eye on the CSJ selection process in order to accompany Honduran institutions in their attempt to straighten out the judicial system as an essential element for building a true rule of law.

To this end, WOLA makes the following recommendations:

• Support for social oversight. Although the approval of the Nominating Board and the election of its members marks a positive step in this process, it does not guarantee that the proposed candidates meet the minimum requirements of suitability, therefore it is essential to maintain social and political oversight from civil society and the international community until the end of the process.
• Accompanying Honduran civil society. In the end, the participation of civil society was limited in the drafting of the law of the Nominating Board, so it is necessary that its role be more decisive in the future and that mechanisms to strengthen and protect the people and organizations that fight against corruption can be generated.
• Encourage a public discussion on the basic institutional steps that should follow the selection of the new Supreme Court of Justice and that deepen, for example, the question of the priority that should be given to the legislative counter-reform to adapt laws such as the Penal Code and the law that governs the Superior Court of Accounts, among others.