WOLA: Progess, But Still No Solution
El Salvador’s political parties, with the involvement of President Mauricio Funes, are starting a third day of discussions about how to resolve the constitutional crisis between the Salvadoran National Assembly and the Supreme Court over the judicial naming process. Following visits by Salvadoran officials to Washington, several Members of Congress issued statements about the crisis, with differing assessments of the problem and how much progress has been made.
The crisis started in June when the constitutional chamber of El Salvador’s Supreme Court invalidated the Salvadoran National Assembly’s elections of two sets of court magistrates—a decision that challenged the influence that the Assembly has exercised over the judicial branch. (See WOLA’s earlier background piece on this issue). A majority in the Assembly rejected the court’s decision, appealing to the regional Central American Court of Justice to review and overturn the ruling. This appeal led to a constitutional crisis over the power and the independence of the judiciary.
There has been both a domestic and an international outcry urging the political parties and the government to resolve the crisis. Some have interpreted the crisis as an attempt by one party, the FMLN, to consolidate its influence in the judiciary. The Washington Post said that “the FMLN has … launched a power struggle with the country’s Supreme Court.” Senator Richard Lugar (R-IN), the ranking Republican on the Senate Foreign Relations committee, said in a statement on July 25 that the FMLN is trying to “stack the courts.”
But most analysts, rather than blaming one party or another, have understood the crisis as rooted in an increasingly independent judiciary, and the challenge that presents to all the political parties and interests in El Salvador. Most of those who have spoken up have not focused on one party or another, but have defended the principle of judicial independence, calling on all the parties in the National Assembly to find a resolution that affirms the authority of the Supreme Court. (See for example this statement by the United Nations Office of the High Commissioner for Human Rights).
In the last few days, the political parties in El Salvador have backed away from a confrontation with the court and have begun a process of negotiations among themselves about a resolution. They have issued a statement that appears to affirm the power of the court (although some ambiguities remain), and they are discussing candidates for the now-open seats on the Supreme Court.
This is a very welcome step.
In this context, in a statement issued on July 26, U.S. Representative James P. McGovern (D-MA) and Senator Patrick Leahy (D-VT) said “We are encouraged by the commitment by President Funes and representatives of El Salvador’s political parties to resolve this crisis expeditiously.” (See full statement here).
But while there has been progress, the crisis is not yet resolved. The parties have not yet agreed on a new set of magistrates for the court. A simple solution would be to re-elect the magistrates whose previous appointments were overturned by the constitutional court. In the alternative, the parties can work out an agreement on a different set of magistrates. This is likely to be a difficult negotiation, since the negotiations reflect the balance of power in the Assembly, where no party can command the two-thirds majority needed to approve judges, and where different parties have different interests and different judicial philosophies. While outside observers can and should urge the parties to resolve the conflict in a way that respects the constitution, the parties in El Salvador need to work out their political differences themselves without inappropriate external pressures. That is why McGovern and Leahy stated, “We agree with the Department of State that this is a matter to be resolved by Salvadorans through dialogue, and we reaffirm our support for U.S. assistance for El Salvador which addresses a range of mutual interests, from improving law enforcement to combating poverty.”
The Challenge of an Independent Judiciary
Underlying the immediate crisis is the challenge posed to all the political parties by the newly independent and activist bloc of judges on the constitutional chamber of the Supreme Court. These justices have made a series of decisions in the last two years that have discomfited all the political parties, and all the parties—ARENA, FMLN, GANA and the smaller parties—would like, to one degree or another, to weaken this activist bloc. There have been discussions about ways to move one or more magistrates from the constitutional chamber to another chamber of the court, or of efforts to remove one or more of the constitutional court magistrates from the court. This would be legally and constitutionally difficult, but unfortunately there are indications that, in the course of the negotiations, some of the political parties are still considering ways to break up the activist bloc in the constitutional court.
It’s of course legitimate for parties to want to appoint those who agree with their political and judicial philosophy to the courts; that happens in the U.S. and in many countries, not just in El Salvador. But judges must be independent. Once on the court, judges must not be subject to the influence of political parties or partisan interests. That hasn’t been the case historically in El Salvador, where judges have often been closely linked to political interests. All the political parties—ARENA, FMLN, GANA and the smaller parties—have to learn how to respect the principle of judicial independence. The outcome of the political party negotiations should affirm that the Assembly recognizes the independence of the judicial branch and the finality of Supreme Court decisions, and that the Assembly will name judges who will be independent, rather than responsive to partisan interests. In this context, according to Representative McGovern and Senator Leahy, “Over the past 30 years, El Salvador has faced many challenges, from civil war, to corruption, to cyclones. This constitutional/political crisis is the latest test of whether the country’s governmental institutions can emerge stronger, the rule of law strengthened, and its people more united.”