Laura Rivera Marinero & Carmina Castro [Legal Researchers, Salvadoran Foundation for Economic and Social Development]: Recently, UN Rapporteur on the independence of judges and lawyers Gabriela Knaul warned that an El Salvador law requiring its high court to issue unanimous judgments was an “attack” on judicial independence and the separation of powers. The pressure continues to build since both parties continue with a confrontational stance, regardless of the clamor from Salvadoran and international civil society groups. Members of the National Assembly continue to consider the removal of the justices, while the four justices criticize the role of President Mauricio Funes in this debacle. The law Knaul was referring to, passed on June 2, 2011, is National Assembly Legislative Decree No. 743 [PDF], which established that in constitutional cases the decisions of the Constitutional Chamber of the Supreme Court must be unanimous.

This change, replacing the majority rule system, was introduced in last minute changes to the agenda, and using waiver procedures. President Mauricio Funes signed it into law within a few hours, and sent it to be published by the Official Journal on the same day. Furthermore, since the reform is to have temporary effects until July 31, 2012—which is the date when one third of the Supreme Court will be renovated—it came into effect immediately after its publication, foregoing the regular eight-day vacatio legis. In sum, the executive and legislative branches contrived to limit the power of the judiciary.

The urgency of this reform had a particular motivation: to prevent the Constitutional Chamber from making further rulings. Since the appointment of Belarmino Jaime as President of the Constitutional Chamber and the Supreme Court, and of Florentín Meléndez, Edward Sidney Blanco, and Rodolfo González Bonilla as justices of the Constitutional Chamber for 2009-2018, the “Fantastic Four” have produced several controversial constitutional rulings. The cases have related to electoral law, budget transparency, citizen security, and media, among other sensitive issues that have challenged the status quo, and that have affected both the executive and legislative branches. Justice Nestor Castaneda, who has served in the Chamber since 2003, has consistently voted against the majority in these controversial decisions. Therefore, the reform aims to give this justice an effective veto power.

The law has been strongly rejected [PDF] by Salvadoran civil society organizations, who have asked the National Assembly to abolish it in a petition signed by close to 2000 citizens. This led the main opposition party to declare [PDF] that it had been a mistake to approve the decree. However, the rest of the representatives are not willing to support their proposal to repeal the legislation. Not even the majority party, who initially opposed the law, is willing to support the repeal of the legislation.

For several weeks, the institutional crisis has become more severe. The Constitutional Chamber has declared Decree No. 743 unconstitutional, and has proceeded to issue decisions with four votes. Evidence has surfaced that the law voted by the legislature is not the same as the one sanctioned by the president, which would render the law unconstitutional. The Official Journal—an agency of the Executive—refused [PDF] to publish the ruling of the Constitutional Chamber, asserting that the Constitutional Chamber did not comply with the requirement of a unanimous vote, but the Official Journal did not have any legal foundation for taking this decision.

In recent weeks, the National Assembly received a motion to remove the four justices from office on the basis that they have committed a criminal offense in disregarding the unanimity vote rule. Following this, the Political Commission announced that it would dismiss the petition. However, the Political Commission did decide to continue its discussion on the matter. During the legislature’s plenary session there were negotiations to remove the justices from the Constitutional Chamber immediately.

These developments present a grave challenge to El Salvador’s democracy, unprecedented since the Peace Accords of 1992. Civil society is behind the “Fantastic Four” but it is not clear that the political class is willing to accept an independent Judiciary that will limit its power. El Salvador’s political analysts have coined the term “partydocracy” to describe the system that has been in place since the Accords. Let us hope that this crisis is the interlude to a consolidation of a citizen’s democracy.

Suggested citation: Laura Rivera Marinero & Carmina Castro, El Salvador Judiciary Restrictions Perpetuate ‘Partydocracy’, JURIST – Hotline, July 8, 2011, http://jurist.org/hotline/2011/07/marinero-castro-el-salvador.php.