WOLA: Advocacy for Human Rights in the Americas

(AP Photo/Salvador Melendez)

21 Dec 2018 | Commentary

El Salvador Makes Mixed Progress in Strengthening Rule of Law

El Salvador has seen its share of corruption scandals this year, with an arrest warrant issued of one former president and the sentencing of another for embezzlement charges. Despite a general climate of impunity, continuing  violence, and weak institutions, the country has repeatedly rejected recommendations that it should request an international commission—such as those present in Guatemala and Honduras— to help support the government’s efforts to fight corruption and impunity.

This makes it worth asking what, exactly, has El Salvador done—via its police, attorney general, courts, and other branches of government—to effectively investigate, prosecute, and sentence those guilty of high-level corruption or serious human rights abuses?

The struggle to fill the Constitutional Court

El Salvador’s National Assembly was supposed to fill four (out of five) empty seats in the Supreme Court’s Constitutional Chamber by the end of July 2018. Instead, the country’s highest court stayed empty for nearly four months.

The makeup of the next Constitutional Chamber was an especially critical one for El Salvador, given that the preceding court is widely viewed as having generally demonstrated commitment to due process and rule of law. One of the Court’s most important decisions was striking down the 1993 Amnesty Law which shielded former members of the military from investigation for wartime atrocities, paving the way for the reopening of major human rights cases. Others compelled the executive branch and the Assembly to respect constitutionally mandated procedures they had long flouted. While decisions by the Court generated controversy, there’s no question that the next magistrates would strongly impact El Salvador’s prospects for a more functional, independent judiciary.

However, the resulting selection process for the four new magistrates was a troubled one. Legislators were supposed to vote on candidates drawn from a list of 30 people, all screened and evaluated by the country’s national bar associations and by the National Council of the Judiciary (Consejo Nacional de la Judicatura, CNJ), a state agency that handles judicial training and judicial review. The screening process for candidates was highly problematic and ultimately fell short of meeting recommended standards of integrity and professionalism. Nevertheless, in some ways it did represent an improvement from past selection processes, as many of the most openly partisan and least qualified candidates were removed from consideration.

None of the country’s three major parties had the Assembly majority needed to push through their favored picks. However, instead of making the judgement based first and foremost on integrity and professional competence, or looking at the candidates who’d received the highest ratings from independent experts, legislators openly admitted that the months of negotiations were meant to ensure that each party got someone they felt served their interests. “It’s not a question of picking the best [candidates],” one member of Congress told news outlet El Faro. It’s little wonder that the process ended up dragging on for months given the parties’ competing interests, as well as the numerous pending corruption investigations involving the same legislators charged with picking the new Constitutional Court judges.

Legislators finally selected new justices in mid-November. While the evaluation process probably prevented tainted and unqualified candidates from advancing, as they might have in the past, ultimately the process deserves the criticism it received for being unduly politicized. The impact will likely be felt in El Salvador for years to come: the court that has emerged is likely to be far less assertive than the preceding court in terms of upholding judicial independence, and less likely to advance the separation of powers.

Picking the next attorney general

The next fight on the horizon is selecting El Salvador’s new attorney general. As in the United States, El Salvador’s attorney general is the country’s top law enforcement official, one who will steer the government’s response to acute problems of corruption, violence, and other issues. However, as recently asserted by Salvadoran civil society groups and the Due Process of Law Foundation (DPLF) in a letter to El Salvador’s National Assembly, similarly to the selection process for Constitutional Court magistrates, so far the attorney general selection process is demonstrating a lack of transparency and is failing to meet international standards.

By early November, the Assembly final list of attorney general candidates consisted of 33 men. By December 13, that list was narrowed down to eight people. As of publishing this commentary, the National Assembly commission responsible for vetting candidates has not publicly disclosed the criteria used to evaluate the candidates, nor disclosed each candidate’s qualifications.

Similarly to what happened with the selection of the Constitutional Court magistrates, the National Assembly’s lack of transparency in this process raises serious concerns about what backroom political deals are taking place. Many of the legislators on the selection committee are under investigation themselves for possible illicit enrichment. It would be up to the next attorney general to push those investigations through.

It’s becoming increasingly urgent that El Salvador’s National Assembly address these concerns. Legislators could demonstrate their commitment to having a transparent, rigorous selection process by releasing the candidates’ applications to the public, and conducting all remaining interviews in public, using a strict set of criteria that emphasizes professional qualifications.

Other progress and setbacks

El Salvador’s outgoing Attorney General Douglas Meléndez has made some important progress in terms of strengthening rule of law in the country. With his term set to end in early January, Meléndez is currently a candidate for re-election as attorney general, with some reports that he already has secured enough votes in the National Assembly. However, the outcome remains far from certain.

Meléndez has had notable achievements. Most recently, his office created a special unit to investigate historic human rights crimes, and established a transitional justice policy, developed in dialogue with human rights groups, to guide the unit. His office opened high-level corruption cases and secured the conviction of two former presidents and the previous attorney general.  In another move atypical for a country where the armed forces have long benefited from impunity, under Meléndez the Attorney General’s Office moved to pursue a case involving torture by the military, despite significant pushback from military leaders.

The Attorney General’s Office has been less successful in reigning in cases of police abuse and gender-based violence. Additionally, Meléndez has earned criticism for moving too cautiously on another major human rights case: the alleged extrajudicial killing of eight people by police in 2015. In a country where police violence and disappearances have soared, the so-called San Blas case was an opportunity for El Salvador’s justice system to show it was willing to hold the police accountable for abuses. However, the Attorney General’s Office only moved forward with prosecuting officers for the death of one of the eight victims. The apparent unwillingness to prosecute this crime to the fullest extent sent a troubling message about tolerance for extrajudicial executions (the case recently ended in an acquittal).

Looking forward

Strengthening the rule of law is critical to addressing El Salvador’s many security and development challenges. In a recent survey, 55 percent of Salvadorans responded that they believe that insecurity and violence is the principal issue facing El Salvador and 90 percent agreed that respect for human rights in the country has remained the same or worsened. This follows the release of final homicide statistics for the year which indicate that El Salvador is expected to continue to be the deadliest country in Central America with an average of 51 homicides per capita. Nonetheless, perhaps the biggest test facing El Salvador’s institutions over the next year is securing the progress attained so far and preventing backsliding. Both the U.S. government and the international community should continue to play an important role in supporting these efforts.