Roatan’s Beauty, Truth & Wisdom

The Honduran Notaries Controversy

The March 12 elections for president of the local chapter of the Bar Association for Roatan received some national news. In fact, the turnout was so great and elections so controversial, the powers that be in the capital didn’t send enough ballots for the 218 attorneys registered to the island chapter.

These elections are especially important in context of the 15 Honduran Supreme Court appointments that are coming up. The candidates to the Supreme Court are nominated by the Honduran bar association and vetted by congress. The sitting government politicos were pushing their candidates and the tensions ran high. There was an alliance formed against the national party and it won big.

Now the party of Xiomara Castro will control both Congress and the Supreme Court along with the executive branch of government. The new Attorney General will also be nominated and appointed by this government. While the justices will begin their terms in February 2023, this year is decisive in their nominations.

The nomination and appointment of the Honduran Supreme Court justices will have a trickle-down effect. All lesser courts have judges appointed by the judicial system under the Supreme Court. The courts under the Supreme Court are nine Courts of Appeals, 66 Courts of First Instance and 325 Justices of the Peace. That is a huge legal influence.

Xiomara Castro will control both Congress and the Supreme Court.

The new justices will also examine attorneys for their notary exequatur. The battle to control the Honduran Bar association and ethics board is likely to begin soon.

In Honduras and most Latin American countries, all notaries are attorneys, but not all attorneys are notaries. The notaries in Honduras play a greater role that in the US. Up North the only requirement seems to be not having a criminal record and filling out the application.

To become a notary, you have to submit a formal petition before the Supreme Court requesting an examination, which may be granted or not. The procedure takes about two years to be granted. It is a bit speedier procedure if you know the right people.

If you are lucky enough to get the call and be given a date for the exam, you will present yourself before the Supreme Court Secretary. You are to wear formal black attire and will be questioned orally for around two hours and forty-five minutes on Notarial Law and any subject over which Notaries have jurisdiction in Honduras. If you pass you get to be sworn in by the President of the Supreme Court and you are named a Public Minister of Oaths for the Republic of Honduras.

A Honduran notary can then marry people just like a justice of peace can, and he may authorize uncontested divorces, probate wills and a bunch of other non-litigious procedures.

The most enviable right of a notary public, the Holy Grail if you will, is the exclusive ability to authorize title transfers. Only notaries can transfer titles in Honduras. Thus, all real estate transactions must by law in Honduras be done before the offices of a Notary. To do otherwise is illegal.

The new penal code article 472 is loosely translated as “professional intrusion. Whoever exercises acts of a profession without possessing the corresponding academic title, or the corresponding qualification in accordance with current legislation, must be punished with a prison sentence of one to three years.”

There are maybe six notaries permanently on Roatan. Some others fly in for closings, but don’t live here. Other off-island notaries unethically “lend” their official stamp and legal paper to local attorneys to use while having permanent addresses elsewhere.

So far no-one has been charged criminally for impersonating a notary public, but it’s just a matter of time. The cave to of the matter is: with a criminal charge you can’t apply to become a notary so an attorney charged with such an offense could never be a notary public in Honduras.