In July 2018, four out of the five magistrates who sit on the Constitutional Chamber of El Salvador’s Supreme Court will have finished serving their five-year terms. The Constitutional Chamber is charged with ruling on matters related to constitutional law, including conflicts between the executive and legislative branches, and thus is a key institution for protecting the fundamental rights and freedoms of Salvadorans. There is no doubt that the selection of the new magistrates by El Salvador’s Congress will have long-term ramifications for the country’s ongoing struggle to improve rule of law.
While the magistrates who make up the current Constitutional Chamber have generated controversy with some of their decisions, they are widely viewed as having defended due process and the rule of law. One of their most emblematic decisions was overturning the 1993 Amnesty Law, which prevented prosecutions of grave human rights abuses or war crimes committed during the country’s 12-year civil war.
The magistrates who will make up the incoming Constitutional Chamber will have to rule on complex and highly charged issues. Their commitment to El Salvador’s Constitution and international standards of justice, and to due process and the rule of law, will undoubtedly be tested. It is therefore crucial that El Salvador’s National Assembly select magistrates who are committed to judicial independence and who meet the highest professional standards.
A problematic selection process
In El Salvador, as has been the case with other countries in the region, magistrates are frequently selected based on political allegiances or favoritism rather than on professional grounds. As a result, El Salvador’s courts have often lacked the independence and commitment to the rule of law needed for an effective judiciary.
Part of this problem is due to the way nominees for the Supreme Court are selected and then presented to the National Assembly, as this process does not strictly follow a procedure based on merit and qualifications.
El Salvador’s National Assembly will select the four magistrates who will serve on the Supreme Court’s Constitutional Chamber from a list of 30 candidates. Half of the candidates will be proposed by the National Council of the Judiciary of El Salvador (Consejo Nacional de la Judicatura, CNJ), an autonomous state institution charged with judicial training and judicial review. The other half will be nominated by the Federation of the Association of Attorneys of El Salvador (Federación de Asociación de Abogados de El Salvador, FEDAES).
The CNJ compiles its list of candidates via a process that includes candidate evaluations, background checks, and aptitude tests. However, in contrast, members of the FEDAES will vote for candidates in a direct election, with little formal evaluation of the candidates. This makes it difficult to establish a process based on merit rather than popularity and backroom dealing.
The CNJ stopped accepting nominations after January 31. After conducting an internal review of the candidates and holding interviews, it will release its final list of candidates, likely in March or April. The FEDAES will name its candidates by March 10.
El Salvador is holding legislative elections on March 4; this means the newly-elected National Assembly will be responsible for forming an ad hoc selection commission in May. This commission will review the list of 30 candidates issued by the CNJ and the FEDAES, and recommend the final set of four magistrates to the entirety of the Assembly.
New guidance for selecting Supreme Court judges
To ensure that the Constitutional Chamber nominees are qualified to perform their duties, it is critical that the selection committees in the CNJ and the national lawyers association (FEDAES) follow proper procedures that adhere to international standards.
In 2017, the board of El Salvador’s CNJ tried to address this problem by creating and adopting a manual that attempts to better define the procedures and standards for selecting high court nominees.
The creation and adoption of this manual by the CNJ was an important step forward towards improving how El Salvador’s Supreme Court judges are selected. The manual recognizes the importance of a merit-based system, defines the principles that should guide the selection process, and establishes stages and procedures.
However, challenges remain. A recent report by WOLA partner the Due Process of Law Foundation (DPLF) analyzes whether this new selection process manual sufficiently draws upon international standards for the selection of magistrates to high courts, according to the international commitments on judicial independence assumed by El Salvador. The report also provides recommendations on guaranteeing an independent nomination process for Supreme Court magistrates, including the Constitutional Chamber. In particular, the report recommends that the lawyers association adopt an evaluation process for candidates (similar to the CNJ process) to ensure that those running for election to the lawyers association slate are suitably qualified.
WOLA has translated the report’s principal recommendations from Spanish to English, available below. While technical, these recommendations are critical to ensuring the professionalism, independence, and impartiality of potential candidates, and ensuring that El Salvador’s highest courts will protect and promote the rule of law.
Recommendations for Selecting Supreme Court Justices
- Perhaps the most important challenge is granting maximum transparency of the selection process to build public trust. To achieve this, it is recommended that the National Council of the Judiciary (CNJ) make all the documents and background information presented in the candidates’ applications publicly available on the CNJ website in a timely manner, as well as other documents collected by the CNJ in order to conduct background checks.
- To ensure consistency in the selection process, it is recommended that the candidates filing their candidacy through the Federation of the Association of Attorneys (FEDAES) abide by the same selection criteria defined in this manual [and adopted by the CNJ]. The review process of the list of candidates selected by the lawyers association should not only consider the formal requirements needed to qualify for the position (nationality, age, law degree, etc.), but also the profile required of the position (a reputation for competency, honorability, suitability, etc.) To do so, the lawyers association must revise its internal processes, so that it can evaluate its candidates according to the same standards as the CNJ, prior to selecting its final list of 15 nominees.
- To effectively evaluate each candidate’s profile, such as an applicant’s degree of independence and impartiality, there must be a reasonable amount of time to allow citizens to review the applications once published online, and thus provide the CNJ and the lawyers association with any relevant information on professional, commercial, and political relationships that can help identify potential conflicts of interests.Kinship relations with public officials should also be examined, as well as aspiring candidates’ compliance with the requirement that they submit asset declarations.
- [As magistrates are supposed to be politically independent], it is also important that political party ties be subject to a reasoned analysis not only based on formal criteria [such as current party affiliation], but also on … history of previous political party membership, degree of linkage, intensity and frequency of party contact.
- Another important aspect to include in the evaluation process, given the high office of the position, is practical knowledge [of the law], which cannot be determined solely by the number of academic degrees that candidates have obtained. The evaluation process should require a written legal essay or legal analysis of a complex judicial decision.