The Salvadorian Constitutional Crisis, Democracy and the International Community

Last month El Salvador experienced one of its most dramatic constitutional crises of the past 20 years.

It began when the Constitutional Chamber of the country declared as unconstitutional all the appointments of Supreme Court judges made in 2006 and 2012. The rationale for this decision was that the Legislature that made these appointments had already done so once before at the beginning of the legislative session. The chamber ruled that these second appointments were unconstitutional.  The ruling also included another decision that declared unconstitutional the Legislature’s initiative to transfer the current president of the Supreme Court to another chamber and ordered the president to keep his position as President until the end of his term.

The Chamber had ordered the current Legislature to elect judges for nine years and also provided instructions to the Legislature on how to proceed in the future with regard to Supreme Court appointments. Such guidance by the Constitutional Chamber included elements such as transparency, access to information to citizens regarding the qualifications of the nominees; and documented information on the nominees so that the government could justify these appointments on the basis of merit and achievements.

These developments prompted the government of President Mauricio Funes of the left-wing Farabundo Marti National Liberation Party (FMLN) to refuse to accept the ruling. Funes proceeded to mobilize national as well as international support against the Supreme Court decision.

The Salvadorian Constitutional Chamber is one of the five chambers of the Supreme Court. It deals with issues relating to individual protections, habeas corpus, the constitutionality of government decisions and laws; and settling of disputes between the legislative and executive power. Five justices compose the chamber and its president is also the president of the Supreme Court and the entire judicial branch.

Interestingly enough, the Salvadorian Constitutional Chamber has been very active in the last several years in something that is still unusual in Latin America: the struggle for an independent judiciary, one of the key components of a true democracy.

In July, 2010, the Constitutional Chamber declared the national electoral system unconstitutional because the system did not allow for independent candidacies or direct votes to be cast for the candidate of the voter’s preference. Instead, the vote was for the party not the person. This angered the legislature that gathered overnight and passed a constitutional amendment that requires candidates to run for office only through political parties.  That was an obvious reaction of the political parties against candidates that emerge outside the establishment and may threaten the power- hungry parties.

The Legislative Assembly followed this decision by adopting decree 743 that required the Constitutional Chamber to make a binding decision; it must have unanimous support among its members.  President Funes signed the decree that night. It goes without saying that no court in any democratic-constitutional country works in such a way. In fact, the requirement of unanimity was aimed at strengthening the power of the political branches over the constitution and the eternal and typical attitude of the Latin American political class to see legal and constitutional restraints as an annoyance to their ability to make decisions. We cannot imagine any such situation in a true democracy.

This power grab by the Salvadorian political class against the judiciary brought about national and international protests that eventually forced the Legislature to revoke decree 743.

The recent decision pertaining to the appointment of judges once again sparked a conflict between the judiciary and the legislative and executive branches.

The Regional Involvement in the Salvadorian Crisis

This time, Salvadorian executive authorities decided to bring the case before the Central American Court of Justice (CACJ) that is the judicial branch of the Central American Integration System (SICA).

The CACJ not only admitted the case but also ruled against the decision of the Salvadorian Constitutional Chamber. The Salvadorian Constitutional Chamber declared the CAJC involvement and decision irrelevant and unconstitutional.

However, the Salvadorian Legislature invoked the decision by the CACJ and voted to strip the President of the Supreme Court of his powers by declaring that any member of the Supreme Court could convene a meeting, not just its president.

Thus, the executive and legislative actions endorsed the appointment of the new Supreme Court against the ruling of the Constitutional Chamber thus creating two Supreme Courts.

The Central American International Court of Justice undermined the principle of an independent judiciary by quickly ruling in favor of the Salvadorian Government.

To have an idea about the magnitude of irresponsibility of the CACJ, we can only think about how long it would have taken the U.S. Supreme Court or any normal court to make a decision about such a delicate issue.

I agree that Latin American Supreme and other courts have been deficient throughout the decades.  However, in the Salvadorian case, the Supreme Court of Justice was moving in the direction of independence, legality and transparency.

Interestingly enough, the CAJC is based in Managua, Nicaragua, the same country whose government manipulated the Supreme Court in order to subjugate it and subordinate it to the will of the executive power.

For example, early in July, the CAJC criticized Costa Rica over the construction of a highway. The court considered that such a highway would cause environmental damage to the San Juan River which is located in Nicaraguan territory. The Costa Rican government reacted by accusing the CAJC of having a pro-Nicaragua bias.

Two justices of El Salvador, two from Honduras, and two from Nicaragua currently compose the CAJC. Guatemala, Costa Rica and Panama currently have no representation. The president of the Court is from Nicaragua.

Some Reflections from the Salvadoran Case

The Salvadoran case, particularly the behavior of both the legislative and executive branches of government, indicates that in many Latin American countries, politics is still oriented towards quick decisions, minimization of debate and lack of empowerment.

Democracy continues to be sacrificed by short- term interests and politization of all the spheres of government, particularly the judiciary.

But there is an important regional component that cannot be ignored.

Countries of the region have protested and acted against deposed presidents but have not acted against presidential abuse of other branches of government.

In the case of Honduras in 2009, countries of the region sympathized with the deposed president, Mel Zelaya while ignoring his contempt for the decisions made by the legislature and the judiciary in that country.

Barely a month ago, Paraguay was suspended from Mercosur for what its members Argentina, Brazil, and Uruguay defined as “democratic breakdown”, although no other countries except the Bolivarian ones defined the situation in such a way. What is worse these countries took advantage of Paraguay’s suspension to admit Venezuela, the most dictatorial regime in Latin America, to Mercosur (Venezuela’s membership in Mercosur was delayed amid objections by the Paraguayan Congress).

By the same token, the Central American Court of Justice without any hesitation sided with President Funes in the Salvadorian case.

I also believe that Costa Rican concerns over Nicaragua’s undue influence over the CACJ have some merit. If this is, indeed, the case, we may be seeing a propensity towards Nicaraguan regional hegemony in Central America. Taking into account the fact that the government of Daniel Ortega Saavedra is Bolivarian and pro-Chavez, such influence must be taken very seriously.

The harmony that some members of the U.S. Administration describe when they talk about Latin America is only the fruit of their imagination. In the case of Central America, the politicization of the rule of law and the crushing of the courts constitutes another bullet in the heart of institutional integrity which is already seriously wounded by the presence of the drug cartels, corruption and anarchy.


About Luis Fleischman

Dr. Luis Fleischman is a Senior adviser to the Menges Hemispheric Security Project at the Center for Security Policy in Washington DC. He is also an adjunct professor of Political Science and Sociology at Barry University He is the author of the book, "Latin America in the Post-Chavez Era: The Security Threat to the United States."

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