By Katharine Valencia
Program Officer at DPLF
Next week, the Congress of Honduras is expected to select Justices for the highest court in the land – the Supreme Court. The process for getting to this stage, however, has been a long one. Under the Honduran Constitution and other relevant law, a new Supreme Court is elected every 7 years, via a temporary selection body called the Junta Nominadora (JN). The JN is made up of 14 representatives of the country’s workers, professors, civil society organizations, the private sector, the Bar Association, the national Human Rights Ombudsman’s office, and the Supreme Court itself. To briefly summarize a complex process: the JN representatives are selected during the summer and fall, via direct appointment and/or voting by their peers. Once formed, the JN begins to accept and evaluate dozens – this time, close to 200 – nominations from a specific subset of attorneys (notaries). After the first round of review, the JN cut this list in half. Its final task was to further narrow this list down to 45 finalists to send to Congress, which it completed on Tuesday. The legislature now has until January 25 to pick 15 of these finalists to form the new Supreme Court. (According to the relevant law, the JN had until January 23 to submit its final list, but as this would only have given Congress 2 days to evaluate the candidates, it was under pressure to try to do so ahead of schedule).
At first glance, the selection process seems like it has a lot of positive aspects, despite its complexities. One might have hoped that the diverse composition of the JN would ensure that the body was representative of Honduran society, but instead the lack of gender and ethnic diversity of the JN has been criticized. In particular, it has been argued that civil society from outside of Tegucigalpa, such as those representing Afro-descendant and indigenous groups, faced undue obstacles in participating in the selection of their JN representative. It is also striking that there is only one woman among the 14 current JN members.
Moreover, the process has been reportedly subject to intense politicization. Both this time and last (in 2009), the composition of the JN has been analyzed mostly through the lens of the political affiliation of its members (see more). Rumors of political horse-trading and pressure from the Executive and the legislature abound, although they are hard to prove. For its part, the current JN has insisted that it operated without concern for politics and that it did the best it could with limited resources and time.
In any event, there can be little disagreement that the JN has had to tackle a formidable task in evaluating 200 candidates over several months. Civil society organizations, including DPLF, urged the JN to conduct as exhaustive a review as possible, including by examining the candidates’ written work and analytical abilities, and conducting an inquiry into their commitment to the judiciary as a public institution (Guidelines for a transparent and merit-based system for the appointment of high-level judges). As indicated by the need for a special internationally-backed Mission against Corruption and Impunity in Honduras (MACCIH), which is currently being established, it is also crucial to examine whether candidates have ties to organized crime and/or whether they have received bribes. A truly merit-based selection, which is vital to ensure a properly functioning judiciary that earns the public’s trust, can only occur via such a thorough and objective analysis.
In this regard, the JN developed criteria that went beyond what its predecessors have done, but still left gaps. For example, the JN required a long list of documents proving negatives – that is, that a candidate has never been sanctioned by the bar association, and that s/he has never been convicted of domestic violence. While these are clearly important minimal criteria, they do not demonstrate whether a candidate has the legal mind and temperament necessary to be an excellent Justice of the Supreme Court. In response to this critique about the limitations of their initial requirements, the JN solicited additional materials including written works from candidates, such as selected judicial opinions. Some of these opinions were inquired about in interviews, which is a positive step forward – as is the public nature of the interviews themselves. Throughout December, candidates who made it to the second round (more on this below) were required to be interviewed by the Junta Nominadora. Interviews were webcast and open to all. The quality of the answers – and questions – varied widely. While the interview stage is to be commended for its transparency, the brevity of the interviews (only 20 minutes per candidate) was a major shortcoming. Further information about the interview process is available here.
DPLF and other organizations also urged the JN to be as transparent as possible, and we were pleased that the JN was receptive to meeting with DPLF and other observers, incorporating concrete suggestions into their process, and publishing at least some information about candidates and the JN methodology on its website. However, a major critique of the process is that when the JN made the first round of cuts from the candidate list, they failed to explain how or why they arrived at this result. Rather than publicize if the candidates had received points and were ranked accordingly, the JN indicated that candidates moved to the second round on the basis of secret voting. This aspect unfortunately undermines the process as a whole, because it is raises suspicions that the candidates were not selected purely on their merits but rather according to political calculi.
While it will be important to thoroughly analyze the JN’s performance now that its duties have been completed, the focus for now turns to Congress and its mandate to select the final 15 to sit on the Supreme Court. (There has, however, been some concern that this final selection could be delayed. Because Congress has an active role in the process for only a few days, while the JN was active over the course of several months, it is understandable that the focus of the public thus far has been on the latter rather than the former. However, it is Congress that must make the final decision as to who will take up the position of Justice. As such, much more attention should be paid to its role. Congress should establish and publicize its own selection process and methodology for choosing the final 15, with consideration of candidates’ demonstrated abilities as well as with a view to ensuring the Court is representative of Honduras’ diverse society. Individual Congressmen and Congresswomen should explain their votes to their constituents in good faith. Accordingly, their constituents should demand that selection be merit-based and hold their elected representatives accountable for their decisions. Looking ahead to the next selection process, which will commence in 2022, it seems desirable to consider reforming the relevant legal framework. The amount of initial candidates that the JN must review is clearly unwieldly, as evidenced that even when the number is cut in half, it is virtually impossible to conduct the intense and thorough interviewing that should be required of serious candidates for such high office. One also wonders whether the experiment of having so many actors formally involved in the selection process has been successful. For example, some have argued that civil society can be most effective when it is monitoring and reporting on the process from the outside, rather than as an official actor within the system. Finally, the role of Congress warrants closer examination. The legislature should have a more significant period to review candidates – indeed, the short time frame currently allotted suggests that most Congress members conduct little to no review of candidates on their own, which begs the question of how exactly they will make their decision.
MACCIH may be particularly well-positioned to make recommendations along these lines, as its mandate includes forming recommendations regarding structural and institutional reforms. MACCIH should also monitor and report on the integrity of the judiciary, in part because such information about individual judges’ ethical conduct can help inform future selection processes. It is anticipated that MACCIH will commence operations within a few weeks, and while the timing is not coincidental , this unique institution can seize the moment to keep the Supreme Court selection process on the agenda and support the development of a more independent judiciary in Honduras.