Saturday, June 30, 2012

Constitutional crisis deepens in El Salvador

The battle between El Salvador's legislative and judicial branches continues.   In this fight between the National Assembly and the Constitutional Chamber of the Supreme Court, neither side seems prepared to back down.

logoA little background is necessary.   El Salvador's Supreme Court has different chambers ('salas") which rule on different areas of law like criminal law, constitutional law, etc.  The " Sala de lo Constitucional" or Constitutional Chamber rules on whether laws passed by the National Assembly and acts of the executive branch are unconstitutional.

On June 5, the Constitutional Chamber ruled that votes by the National Assembly to appoint judges to the Supreme Court in 2006 and 2012 were unconstitutional.. The Chamber ruled that El Salvador's constitution requires that one third of the court be elected every three years. The three year cycle matches up to the three year cycle on which deputies to the National Assembly are elected. The Constitutional Chamber decided that for every three year term of the National Assembly, that group of legislators can only vote once. In both 2006 and 2012, the legislature had voted twice to change the make-up of the Supreme Court's judges. In this way, citizens' votes are taken into consideration (theoretically, at least) because they can alter the make-up of the National Assembly and hence alter the votes for judges of the Supreme Court.

(A little background on the selection process for Supreme Court judges:   The association of lawyers in the country votes for a list of possible judges.   The top fifteen names are assembled with another fifteen names selected by the National Judicial Council.   From this list of 30 names, the National Assembly chooses the five judges who will take the bench for the next cycle.   This is not a process which is designed to be a complete expression of popular citizen sentiment.)

Thus two thirds of the judges of the Supreme Court suddenly had their legitimacy removed with the rulings of the Constitutional Chamber.   The Constitutional Chamber instructed the National Assembly to conduct new elections for these positions.   Although the National Assembly could have simply held new elections and placed the challenged judges back in their same positions, the National Assembly will not.  The legislature has refused to go along with this attack on its powers.

The National Assembly instead petitioned the Central American Court of Justice (CACJ) to rule on this constitutional dispute.   The treaty signed by El Salvador which created the CACJ expressly gives it jurisdiction in Article 22(f)  to hear disputes between the branches of government in a member state.  On June 21, the CACJ issued a ruling temporarily nullifying the orders of the Constitutional Chamber.

This prompted the Constitutional Chamber to state that the ruling of the CACJ was a nullity because it contradicted the constitution in El Salvador.   The Constitutional Chamber ruled that the CACJ could not be superior to the chamber in ruling on matters of El Salvador's constitution.

President Mauricio Funes gave a statement on Friday, asking the National Assembly and the high court to abide by the ruling of the CACJ in the interests of institutionality.   Funes indicated that as a signer of the treaty which established the CACJ, El Salvador was obliged to comply with its rulings.  It makes little sense for El Salvador to be party to a treaty which allows for the settling of disputes between different organs of the state if one of those organs can just state that the CACJ rulings are not binding on it.  Although Funes stated that he would not get involved in this dispute between the other two branches of government, by urging the parties to respect the CACJ's role, he was implicitly siding with the National Assembly.

Sunday, July 1, is the next key date in this saga.   The new session of the Supreme Court begins that day and the new judges elected by the National Assembly in 2012 are supposed to take their seats.   Of course, these are the same judges who the Constitutional Chamber has ruled were elected contrary to the constitution.   There has been a belief that president of the Supreme Court, Jose Belarmino Jaime, who is also the chief of the Constitutional Chamber, might not call the court into session to avoid these new judges from being seated.

Meanwhile the National Assembly, with the votes of all parties other than ARENA, voted to reform the organic law governing the Supreme Court to permit the court to call itself into session even if Belarmino, refuses to do so.   President Funes said Friday that he would sign the law.  So when the Court calls itself into session on July 1, the new magistrates, elected by the 2009-2012 legislature may be seated, despite the ruling of the Constitutional Chamber that their election was unconstitutional.  

Also getting into the act is the union for the Supreme Court employees.  The employees have now taken possession of the Supreme Court offices.  The union says that it is peacefully taking control of the  building so that the five new  magistrates of the Supreme Court can take office on Sunday, July 1.  The union which asserts it has problems with Belarmino, the current president, and wants to make sure that the president-elect can take office.

El Salvador's Human Rights Ombudsman Oscar Luna called on the parties to look for solutions rather than forcing a confrontation.  He noted that the National Assembly could easily, and consistently with the Constitutional Chamber's ruling, simply ratify the elections of the magistrates declared invalid.  As usual, Luna seems to be the one voice of reason in these matters.

It is not clear where this clash between branches of El Salvador's government is going to end up.   There are a number of themes which can be seen in this dispute.    One is the continuing actions of the Constitutional Chamber to flex its muscle and challenge El Salvador's political parties and the National Assembly.   This trend started with the Chamber's rulings on independent political candidates last year and the battle over Decree 743 which tried to limit the Chamber's actions.   These actions of the Chamber have opened it up to charges of being activist judges who do not simply apply the constitution and laws, but are exceeding their authority under the guise of "interpreting" the constitution.

A second theme is a lack of consensus in El Salvador on who has the final word.   If there are two possible interpretations of how judges must be elected by the National Assembly, does the Constitutional Chamber have the final word?   If so, the other branches of the government do not seem to recognize it.    If not, who does have the final word?   Is it the Central American Court of Justice?    If it is the CACJ, that has implications for how El Salvador understands its own sovereignty.

A third theme rests in the idea that this whole crisis could have been avoided by some better legal drafting of the constitution.   If the election of judges to the Supreme Court were placed in the middle of the three year terms of the National Assembly, there would never have arisen the situation of questioning whether the outgoing legislature could vote twice.

Finally, all actors in this drama might do well to recognize that a constitutional crisis should be avoided and not provoked.   The Constitutional Chamber, for example, could have made its ruling prospective only and only apply for future elections of judges or only for the 2012 elections and forward rather than throwing into doubt the legitimacy of judges who have sat for 6 years.   The National Assembly could simply re-elect the sitting judges and the Supreme Court could return with the mix of judges the National Assembly voted for previously.   The Constitutional Chamber could look for a way to acknowledge the binding nature of treaties which the country has signed and not simply reject the rulings of the CACJ out of hand.

Right now, the parties involved are focused primarily on protecting their own turf.   This turf battle is far from over.

My thanks to Magistrate Rosa Maria Fortin Huezo who graciously assisted me in understanding the complexities of this subject.    She is the head of the Criminal Law Chamber of El Salvador's Supreme Court and is one of the magistrates elected in 2006 whose legitimacy has been thrown into question by the rulings of the Constitutional Chamber.    You can read her analysis disagreeing with the Constitutional Chamber (in Spanish) here.



Tim, perhaps another theme moving under the surface of this crisis is the question of whether El Salvador is an outlier or whether it will go along with the increasing internationalization of the law. In this regard, conservative sectors and the Supreme Court itself have resisted, for example, the efforts of Spanish courts to put El Salvador's war crimes on trial. So, here, these same institutions are being consistent in saying we will take care of our own business and Pres. Funes is echoing the stance taken by progressive groups that say we must bow to international legal standards. That's not a direct corrolation, of course, this is a rather different case, but it does seem to put Salvadoran sovereignty directly on a crash course with Central American integration goals. You are right that the CACJ's charter claims "competence" (but not specifically "jurisdiction"--the two things are different in Latin American civil law) to hear intramural conflicts within each state. The charter seems less than clear on whether the CACJ's findings would be binding on El Salvador (Art. 24 identifies as binding only those decisions that relate to Central American integration matters). The Salvadoran constitution, on the other hand, is not ambiguous in its reservation of jurisdiction over constitutional matters to the Supreme Court. Art. 183 states that constitutional matters are the exclusive province of the Supreme Court. Art. 146 states that no treaties that undermine national sovereignty or independence will be valid, and Art. 145 says no treaties that subvert the constitution are valid. Art. 149 says the Supreme Court can hold a treaty to be unconstitutional. So that would be game set and match, except that the Salvadoran Supreme Court apparently acceded to the creation of the CACJ and the preface to the CACJ Statute states that the member countries are giving up some of their sovereignty in creating the CACJ. By the way, we have been this road before. Costa Rica balked at ceding its sovereignty to CACJ, a result I think should seem reasonable to American lawyers, as that's where we would likely end up in the U.S. if Congress attempted to ratify a treaty subverting our constitutional order.


Footnote: In addition to Costa Rica, Panama also has rejected the jurisdiction of the CACJ. In 2010, SICA tried to drag Panama into court over its resignation from the Central American Parliament (another of the Central American integration bodies), but Panama refused to acknowledge the jurisdiction of the court over it, reiterating that it was acting as a sovereign nation.


An investigation by the independent online magazine EL FARO found that a never implemented 2004 revision of the court's jurisdiction signed the Central American presidents and by Pres. Saca on behalf of El Salvador stripped the Central American Court of its power to hear conflicts between the branches of the constituent states; that this power was always disputed from the court's inception (leading to the 2004 "clarification"); and that international law experts consulted by EL FARO doubted that the Central American Court could trump the Salvadoran Constitutional Court on the interpretation of El Salvador's constitution.

BolivarianaCanuck said...

Tim - thank you for this intricate and unbiased explanation of the background to this issue - I have searched far and wide ....