WOLA: Advocacy for Human Rights in the Americas
29 Jun 2011 | Commentary | News

El Salvador: Troubling Attacks on the Independence of the Judiciary

On June 2, a constitutional crisis erupted in El Salvador. The Salvadoran Legislative Assembly approved Decree 743, which mandates that the five members of the Constitutional Court must rule unanimously instead of with the previous four-person majority. The legislation was approved with the votes of the ARENA Party, the GANA coalition – which has split off from ARENA –, the National Conciliation Party (PCN), and the Christian Democrats (PDC). At the time of the vote, the FMLN and the small Democratic Change Party abstained. Salvadoran President Mauricio Funes signed the bill into law the day it was approved.

The vote was an apparent response to a series of decisions by the Court over the last two years. Four of the five magistrates were named by the Legislature shortly after President Funes came into office in 2009, and since then, the judges have displayed remarkable independence, delivering rulings that have angered representatives of a variety of political interests. They have upset all the political parties by ruling that candidates for the Assembly can run independently rather than having to be part of party slates, and they have angered members of the PDC and the PCN by ruling that they failed to meet the eligibility requirements for electoral re-inscription. They upset President Funes with a decision that limits his use of discretionary Presidential funds. They angered conservatives linked to the previous Salvadoran government’s security apparatus when they ruled that there was no constitutional basis for an Assembly committee’s review of an important corruption investigation carried out by the Police Inspector General. Furthermore, a rumor (probably untrue) that the Court would overturn the long-standing amnesty law worried a variety of politicians who do not want to see wartime human rights cases re-opened.

Many civil society groups began protesting the decree almost immediately, noting that the legislation is a direct attack on the independence of the Judiciary and the separation of powers. The law only lasts until the end of the four magistrates’ term, essentially rendering the Court powerless until these members are gone.

The partisan politics behind the attack on the Court are complicated and difficult to discern. It is unclear why left-of-center President Mauricio Funes, whose party had supported four of the five magistrates when they came to office and who had applauded a number of their decisions, so rapidly signed a decree that undermined the independence of the Judiciary and that was pushed through the Legislative Assembly by the conservative PCN, PDC, and GANA parties. The FMLN’s motivations are equally unclear. It abstained from voting initially, but has been supportive of the decree since.

Ten weeks before the legislation was passed, PCN, Arena, GANA, and PDC were all in agreement that the Court should not be required to rule unanimously. In fact, they had introduced a call to change to a simple majority of 3 out of 5 magistrates to decide a ruling. Obviously there are political factors at play in this abrupt shift.

Currently, just weeks after the legislation was signed into law, the ARENA bloc in the Congress has proposed overturning the law, while the other right-wing parties and the left-wing FMLN are refusing to do so.

The conflict between the Court and the Legislature is now at an impasse. The Assembly approved the requirement that the Court reach unanimous agreement on June 3rd, and the official Gazette published the legislative decree on June 4th. The Court ruled the decree unconstitutional on June 6th, but the official Gazette has refused to publish their decision. The Court has continued to meet and to issue decisions with four person majorities. How other state institutions will respond to those decisions is not yet clear.

In the third week of June the PDC intensified the conflict by introducing a motion in the Assembly to remove the four magistrates who had declared the legislation unconstitutional. Cooler heads appear to have prevailed, and that resolution has, at least for now, been put on hold.

The passage of Decree 743 reflects a profound disrespect for the independence of the judicial branch within the executive and legislative branches of the Salvadoran government. It is troubling that political parties of all types in El Salvador feel it is legitimate for the legislative branch to intervene in the decision-making processes of the judicial branch, especially as an independent judiciary is necessary to effectively deal with the problems of corruption, impunity, and the high levels of crime and violence that currently plague the country. WOLA urges Salvadoran authorities to reaffirm the independence of the Judiciary and to refrain from improper interference in judicial decision-making processes. The executive and the legislative branches should rescind Decree 743 and not take other measures to interfere with the established make-up of the Constitutional Chamber of El Salvador’s Supreme Court.