The independence of the judiciary must be guaranteed by the State and enshrined in the Constitution or the law.{{1}}
Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.{{2}}
The separation of powers is provided for in the Constitution of Honduras{{3}}: judges are to be independent and entitled to protection against unlawful dismissals, suspensions, transfers or retirements.{{4}}
Pursuant to article 27 of the 2011 law on the Council of the Judiciary and Judicial Career Service, judges are also entitled to form professional associations entrusted of defending their professional interests. There are currently two active judges’ associations in Honduras: “Asociación de Jueces y Magistrados de Honduras (ASOJMAH), founded in 2002, and the “Asociación de Jueces por la Democracia” (AJD), founded in 2006.
Notwithstanding these provisions, there is concern about the lack of respect for the separation of powers and in particular the lack of respect for the independence of the judiciary.
For example, a legislative decree enacted in 1999 (No. 161-99) purported to amend article 218 of the Constitution to prohibit the judiciary or president from reviewing Congressional interpretations of the Constitution. A challenge to the legislative decree, brought in 2002 by a member of the National Commission of Human Rights, resulted in a finding by the Supreme Court that the purported amendment violated several provisions of the Constitution, on grounds of, inter alia, the separation of powers and the form of government.{{5}} However, the amendment has never been formally repealed by the Congress.
The Inter-American Commission on Human Rights (IACHR) in its 2013 annual report expressed concern with the situation of the judiciary in Honduras, particularly in relation to the body responsible and the procedures for appointment and removal of judges; interference by state and non-state actors with the judiciary; and unlawful dismissals of judges.{{6}}
As will be described in greater detail below, the 2011 Law on the Council of the Judiciary and Judicial Career Service, though praised by many as a step forward, fell short in addressing the main issues affecting the independence of the judicial system.{{7}}
These, and other issues will be addressed in the following paragraphs.
[[1]]1. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 1.”]
The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
[/expand] See also Inter-American Commission of Human Rights, Guarantees for the Independence of Justice Operators, pp. 31 and 33, further noting that the State must be organized in a way that guarantees judicial independence, and that any principle of mutual cooperation between branches of Government, as provided in some constitutions of the region, cannot justify undermining the independence of the judiciary, for example by expecting that its decisions or actions are taken only in accordance with the policy of the government. And see Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), [expand title=”Article 2.”]
The other powers of the State and, generally speaking, all the national or international authorities, institutions and organisms, as well as the various groups and social, economic and political organisations, must respect and make the independence of the Judiciary efficient.
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[[2]]2. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 9.”]
Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.
[/expand] The Statute of the Iberoamerican Judge explicitly recognizes that “[t]he impartiality is compatible with the recognition of freedom of judges association apart from the exceptions established by the Constitution or legislation of each country” (Article 36).[[2]]
[[3]]3. Constitution, [expand title=”Article 4.”]
The government is republican, democratic and representative. It is composed of three branches: legislative, executive and judicial, which are complementary, independent, and not subordinate to each other.
Alternation in the exercise of the Presidency of the Republic is obligatory.
Violation of this provision constitutes a crime of treason against the fatherland.
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[[4]]4. Constitution, [expand title=”Article 303.”]
The administration of justice emanates from the people and shall be administered for free on behalf of the State, by independent magistrates and judges that shall be subject only to the Constitution and the laws. The Judicial Power shall be composed of a Supreme Court of Justice, the Courts of Appeal, the Courts, the courts with exclusive jurisdiction in areas of the country subject to special regimes established by the Constitution of the Republic and other government departments established by law.
No trial may have more than two instances; the judge or magistrate that exercised jurisdiction in any of these instances cannot have jurisdiction in the other, not even in the case of an extraordinary recourse in relation to the same case, without incurring in liability.
The spouses and relatives within the fourth degree of consanguinity or second degree cannot judge the same case.
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[[5]]5. Constitutional Chamber of the Supreme Court of Justice, judgment of 7 May 2003, last accessed 27 October 2014. See also X Ibero-American conference on Constitutional Justice, “La normative de la Constitucion: jurisprudencia constitucional”, 12-15 March 2014, p. 16-17 (last accessed 27 October 2014).[[5]]
[[6]]6. Inter-American Commission on Human Rights, 2013 Annual Report, page 444, para. 273, 278-288, 289-298 and 299-304. Constitution, [expand title=”Article 314.”]
The term of the Magistrates of the Supreme Court of Justice will be seven (7) years from the date on which they take the oath of Law, [and] they may be reelected.
In case of death, incapacity that impedes him from performing his office [cargo], substitution for legal causes or of resignation; the Magistrate who fills the vacancy, will occupy the office for the rest of the term and will be elected by the National Congress, by the favorable vote of the two-thirds part of the totality of its members. The substitute will be elected from the remaining candidates proposed by the Nominating Board at the beginning of the term.
[/expand] Magistrats Européens pour la Démocratie et les Libertés (MEDEL), “Deep concern for Honduras” (28 February 2012), last accessed 21 July 2014. See also Organization of American States, “In View of Situation in Honduras, IACHR Stresses Importance of Principle of Independence of the Judiciary” (3 January 2013), last accessed 22 July 2014.[[6]]
[[7]]7. Inter-American Commission on Human Rights, 2013 Annual Report, para. 279-283.[[7]]