The selections should be based on clear criteria, and the process should be transparent and allow for civil society participation.
The selection process has just started and is expected to culminate in January 2023.
The final decision on the new justices will be made by Congress, whose president, Luis Redondo, is an ally of President Xiomara Castro. “While the rule of law is falling into pieces throughout Central America, Honduras can stand out by strengthening judicial independence through the selection of new Supreme Court justices based on merit,” said César Muñoz, senior Americas researcher at Human Rights Watch. “President Castro should reject the temptation of selecting a Supreme Court pliant to her own interests and those of political parties, including her own.” Flawed selection of judicial authorities is a key reason behind some of the ills Honduras shares with its neighbors in Central America, such as weak institutions, rampant corruption, and a justice system that has been used to protect the powerful and persecute human rights defenders and journalists. In Guatemala, the government of Alejandro Giammattei has worked with the Attorney General’s Office to block investigations into corruption and human rights violations, and used the justice system against independent judges, prosecutors, and journalists. In El Salvador, President Nayib Bukele has undermined democratic institutions, leaving virtually no checks on his power. And in Nicaragua, President Daniel Ortega has taken control of all branches of government and systematically persecuted critics, opponents, journalists and human rights defenders. President Castro’s November 2021 electoral victory on a pro-human rights platform created enormous expectations for change, but she has been slow to deliver, Human Rights Watch said.
The selection of the new Supreme Court provides President Castro and her allies in Congress with a critical opportunity to strengthen the protection of human rights and the rule of law. Cases on abortion, same-sex marriage, and other human rights issues are currently pending before the court. In addition, the Supreme Court has a very important role in the fight against corruption, as it has jurisdiction over cases involving members of Congress and other high-level public officials. In July 2022, the Castro administration committed to a selection process that guarantees judicial independence, in response to a letter from Human Rights Watch. A political leader, several judges, and representatives of civil society told Human Rights Watch that political parties have traditionally abused the power to appoint Supreme Court justices by splitting the vacancies among them, according to the proportion of seats they held in Congress. Several sources said that when a case involving a political party arrives at the Supreme Court, including corruption cases, the case is typically assigned to a justice who would be sympathetic to that party. This practice has made the Supreme Court a tool of political interest, with terrible consequences for the country, instead of an independent institution that applies the law equally to all, Human Rights Watch said. For instance, in 2009, the Supreme Court issued strong public statements supporting the military coup against the deposed president Manuel Zelaya. It also fired four lower-level judges who opposed the coup.
The Inter-American Court of Human Rights later ordered Honduras to reinstate three of them. In 2015, the Supreme Court revoked the constitutional limit on re-election, arguing that it violated the human rights of officials who wanted to seek another term.
The ruling allowed then-President Juan Orlando Hernández to run for re-election, which he won. In 2021, in an advisory opinion requested by Colombia, the Inter-American Court said that barring unlimited presidential re-election did not violate human rights but rather ensured plurality and prevented the perpetuation of power in the hands of one person. Hernández is currently detained in the US on drug-trafficking and gun charges. Honduras renews the 15 members of the Supreme Court every seven years in a two-tier process. First, a nominating committee made up of representatives of seven entities, the Ombudsperson, the outgoing Supreme Court, the bar association, the private business association, law professors, civil society, and workers’ unions, selects at least 45 candidates for the 15 positions.
The nominating committee started working on September 19. In July, Congress adopted a law regulating the functioning of the nominating committee, which lays out evaluation standards for the selection of candidates; makes sessions and interviews public; and allows for the participation of civil society, media, and UN agencies as observers. It also mandated that at least 7 of the new 15 members must be women.
There are currently 5 female justices. While the law sets broad principles for the selection process, the nominating committee will have to adopt concrete rules regarding its functioning and evaluation criteria.
The content and application of those rules will be crucial to ensure that all candidates are treated equally.
The second tier in the process is the appointment of the justices by Congress, through a vote requiring a two-thirds majority. Honduras’ constitution obligates Congress to choose the Supreme Court and the Attorney General from the list put forward by nominating committees. However, the previous legislature selected the current attorney general, whose term will end in September 2023, from outside the list.
The president of Congress and the opposition should publicly commit to choose justices from the list, as mandated by the Constitution and the July law.
They should choose them for their merits, not any political affinities, through a transparent process, Human Rights Watch said. While the selection of independent and competent justices is crucial for Honduras’ future, it will not be enough to ensure judicial independence. Further reforms are needed to ensure impartial distribution of cases and more transparent and efficient management of the justice system. Currently, the chief Supreme Court justice has ultimate power over selection, promotion, transfer, and discipline of lower-court judges. President Castro should introduce a bill creating a separate body to administer the justice system, Human Rights Watch said. “Impunity, corruption, and violations of human rights are main drivers forcing Hondurans to leave their country,” Muñoz said. “The selection of a new Supreme Court that rules on the basis of the law, instead of political interests, would be an important step to strengthen the rule of law and address the reasons why many people are forced to migrate, and would serve as a positive example for the whole region.”.
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