El Salvador is in the midst of a constitutional and political crisis over the make-up and power of the country’s Supreme Court. In June, the Supreme Court justices who rule on constitutional issues concluded that the country’s National Assembly had misused its power in naming justices to the high court on two occasions and ordered the Assembly to carry out a new judicial selection process. The Assembly has refused to comply, and this has led to a power struggle between the two branches, complete with street demonstrations, competing chief justices, and complicated political maneuvering. The problem is serious; it affects both rule of law and the independence of the judiciary. Most of the international community has avoided taking sides in the dispute and has urged the parties to resolve the crisis through political negotiations that respect the constitutional rules.
Below please find a two-part analysis of the situation. Part 1 includes background information to help understand the crisis and suggests how the international community can be helpful. Part 2 describes how several prominent U.S. commentators have misunderstood the crisis by analyzing it through a narrow political lens that does more to obscure than to enlighten.
PART 1: Understanding the Crisis
A Newly Assertive Supreme Court
El Salvador’s Supreme Court is comprised of fifteen justices that are divided among four divisions, or chambers. One chamber hears administrative law disputes, one hears civil matters, one hears criminal appeals, and one hears constitutional challenges. In the last three years, the five-justice constitutional chamber has taken an activist approach in hearing challenges to the constitutionality of legislative and executive branch actions. Most analysts would argue that the chamber’s decisions have been well-reasoned and reflect a welcome independence in a court that has traditionally been the least assertive of the three branches of government. Not surprisingly, in the process, the constitutional chamber has rendered decisions that have angered many political actors in El Salvador, including the President (by limiting the Executive’s use of unsupervised discretionary funds), and all of the political parties represented in the country’s National Assembly (by, among other things, permitting candidates to run for office without the approval of party structures). Last summer, the Assembly sought to limit the power of the constitutional court by shortening the terms of its justices, a measure that the president immediately signed. A month of public protest led the Assembly to reverse its actions. (See WOLA’s June 2011 commentary on the controversy.)
A Politicized Appointment Process
Supreme Court justices in El Salvador are appointed by the National Assembly. Every three years, the Assembly elects five justices to the fifteen member court; justices serve for nine years, and can be re-appointed. The appointment of justices is a highly politicized process: the justices have to be approved by a two-thirds majority in the Assembly, and this leads to negotiations and horse-trading among the political parties, none of whom have ever controlled two-thirds of the seats on their own. From the mid-1990s through 2009, the most powerful political party, the conservative ARENA party, formed alliances with small right-wing and centrist parties to agree on candidates for the Supreme Court along with candidates for other sensitive posts, such as Attorney General and head of the national Inspector General’s office (the Corte de Cuentas). During that period, the opposition FMLN party had enough seats in the Assembly to deny ARENA and its allies a two-thirds majority, but was unable to attract other parties to caucus with it to form its own super-majority. As a result, the FMLN had a seat at the table in the negotiations over judicial appointments, but ARENA and its allies dominated the process. Some of the candidates that FMLN proposed for some judicial seats and for the national human rights ombudsman won approval, but ARENA and its partners appointed the majority of justices and other officials. (Ironically, several of the justices supported by the FMLN and accepted by the other parties were approved for the constitutional chamber of the Supreme Court, the now-activist branch of the court that has come to anger the FMLN and almost all the other political parties.)
Following the 2009 elections, the balance of power that allowed ARENA to dominate the appointment process shifted. ARENA and its allies still formed a super-majority at the beginning of the 2009-2012 National Assembly; after protracted negotiations, in the summer of 2009 they approved five new justices for the Supreme Court, along with candidates for other positions. But in the aftermath of ARENA’s loss in the March 2009 presidential elections, a dissident ARENA faction grew and eventually split from the party. Over time, this new group coalesced into the GANA party; in its competition with ARENA, its representatives in the National Assembly allied with the FMLN to form a new super-majority. Late in the Assembly’s term, which ended in April 2012, this coalition of unlikely allies set out to make its mark on the court and on other appointments while they had the votes to do so. They negotiated and approved a new set of five justices for the next term of the Supreme Court, as well as a new attorney general and other positions.
A Controversial Court Decision
In June of 2012, the Constitutional Chamber of the Court ruled that the 2009-2012 Assembly’s appointment of new justices in April of 2012 was unconstitutional. According to the Chamber, the constitution permits each Assembly to approve only one set of justices during its three year term. When this Assembly convened in 2009, it named a set of justices. In the final month of its term (April 2012), it named another set of justices. This move was politically calculated to prevent the new Assembly, which would have had a new political balance, from naming those justices. According to the Chamber’s reading of the constitution, the Assembly can only name one set of justices during its tenure. Therefore, the justices elected in April of 2012 could not be seated, and the new Assembly had to name five justices. (Adding to the conflict, a similar scenario had taken place during the 2003-2006 Assembly, when the Assembly named justices at the beginning of its term in 2003, then named a second set at the end of its term in 2006. The Chamber found this process unconstitutional as well, and just as with the justices named at the end of the 2009-2012 session, the Chamber ordered that those justices be replaced.)
This decision angered the FMLN and the GANA party, who had worked out a deal to name the justices in April 2012. On the other hand, the decision delighted the ARENA party, which had done well in the March 2012 Assembly elections, would hold greater sway in the new Assembly that took office in May of 2012, and therefore would have more influence in naming justices. The decision also offered another window of opportunity for other political interests that had been been angered by the Constitutional Chamber’s decisions to continue to attack the Court and seek to weaken its authority.
A Constitutional Crisis…
In the aftermath of the decision, the FMLN and GANA looked for ways to challenge the Court and defend the appointments they had made. A majority of deputies in the National Assembly voted to appeal the Court’s decision to the Central American Court of Justice, a regional body whose authority to review or override the Supreme Court decisions of any Central American country is, at best, debatable. The regional court quickly enjoined the implementation of the Salvadoran Supreme Court decision; its final ruling is due soon. The justices named by the Assembly in April of 2012 have sought to take their seats on the court in spite of the opposition of the Constitutional Chamber. There are, as of this writing, two groups of justices claiming to be the legitimate Supreme Court of El Salvador.
There is no question that this is a serious constitutional crisis. Whatever one thinks of the Constitutional Chamber’s decision (there are respected jurists who agree and others who disagree) or of its activist approach, it is deeply troubling that the final decision of the Court, an independent branch of government under the principle of the separation of powers and system of checks and balances, has been rejected by the National Assembly.
…And a Politicized Battle
No one should misunderstand the political character of the battle that is underway in El Salvador. The ARENA party, which had dominated the judicial nomination process for many years but lost its control at the end of the 2009-2012 legislative session because of an internal party split, now sees a political advantage in proclaiming itself the party of the Constitution and apolitical appointments. The FMLN, long a critic of the deeply politicized judicial appointment process when its opponents on the right had the advantage, has now shifted its position in order to attack the constitutional court as high-handed and to defend its own newfound political power in the judicial appointments process. The GANA party has sought to weaken its ARENA opponents and to maximize its political power in the judiciary and the attorney general’s office by negotiating with the FMLN—a party that GANA political leaders have long criticized.
All this is sordidly political (although the United States should be careful about its criticism of the process given its recent battles over Supreme Court nominees). At the same time, there are important constitutional principles at play here; a political resolution ought to re-affirm the separation of powers and the role of the Constitutional Chamber of the Supreme Court. The political parties ought to be urged to reach a solution that respects the constitutional principle.
The political parties have a complicated set of political interests at play. But these interests could be worked out in a way that accepts the Court’s decision, thus affirming the constitutional order. The National Assembly could withdraw its appeal to the Central American Court and agree to hold new elections for justices. At the same time, the Assembly could move promptly to name new justices, even re-naming the same justices whose election in 2006 and 2012 had been challenged, thus saving face. While far from ideal in terms of naming justices based only on their integrity, a proposal like this could resolve the immediate crisis. Reportedly, all parties in the National Assembly would consider this solution for the justices named in 2006. But ARENA is resisting such a solution for the justices named in 2012, since it would diminish their influence in the process and re-affirm the decisions made by the FMLN-GANA alliance. If the crisis is not to be prolonged, in the end, ARENA, GANA, and the FMLN, through private negotiations or public battles, will have to come to an agreement about electing a slate of justices and about related appointments.
The international community, including the United States, have generally taken the position that the dispute over Supreme Court nominees is a political issue that must be resolved, but that it must be resolved through a Salvadoran political process rather than through outside intervention. This is the right approach. Defending the rule of law and the constitutional order should be the goal. Quiet diplomacy may be helpful; taking sides, or appearing to take sides, in the eminently political aspects of the dispute is not.
PART 2: Misunderstanding the Crisis
Recent comments in the United States on the political crisis brewing in El Salvador over the naming of justices to the country’s Supreme Court (see these editorials by the Washington Post and the Wall Street Journal) have seen the crisis through a polarized political lens that misunderstand the problem, and doesn’t contribute to a solution.
If the editorial positions of the Washington Post and the Wall Street Journal had stopped at affirming the need for a solution that respects the constitution and the separation of powers, they would have been useful positions. But the editorials go further. The editorials of the Washington Post and the Wall Street Journal, as well as some other analyses, see the conflict as the playing-out of a geo-political drama, not a constitutional and political battle in El Salvador. They drag the specter of Daniel Ortega and Hugo Chavez into the picture, obscuring the local political and constitutional realities. The FMLN, the political party of the rebels who fought a civil war in the 1980s and now a major force in Salvadoran politics, are not simply a party with whom the Post has disagreements. According to the Post, the FMLN leaders are “ideologically in tune” with “caudillos” like Ortega and Chavez. The implication is that while the maneuvering of other political parties in El Salvador reflects legitimate efforts to maximize political power within the rules of the game, the behavior of the FMLN must be judged differently. The Post (perhaps listening too closely to friends of ARENA, who, not content to paint that party’s leaders as high-minded constitutionalists, are also seeking to paint their opponents as radical authoritarians aligned with the Bolivarian revolution) describes what’s going on as “the FMLN seeking to subordinate the court” to the agenda of “leftist strongmen” in Latin America. This analysis conveniently ignores the role of the GANA party, a significant conservative political bloc made up of dissidents from ARENA, who are dismissed as a “splinter party.”
This analysis misses a lot of the realities in El Salvador. And it confuses, rather than clarifies, our understanding of what’s at stake. Salvadoran political parties ought to find a negotiated solution to this crisis, one that respects the integrity of the constitution. The United States and other international actors should encourage—not compel—the political parties to do so. Heavy-handed calls for suspending U.S. assistance to El Salvador are, at this point, more likely to intensify polarization than contribute to a solution. And the solution should emerge because the parties are convinced about the need to follow constitutional norms, not because one solution is perceived as “pro-Chavez” and another as “anti-Chavez.” The sort of analysis that is reflected in the Post editorial and other commentaries does a disservice to those who support a constitutional solution to the crisis in El Salvador by painting the issue in such simplistic and polarizing terms.