Salvadoran Supreme Court Constitutional Crisis

As usual our USA media does not include major news about other countries even in our own hemisphere, but you may have heard that 2 Republican Senators, Marco Rubio (Rep. Fla.), and Bob Menendez (Rep. NJ), called upon the Obama administration to cut economic development aid to El Salvador unless they quickly resolve their constitutional struggle that has paralyzed their Supreme Court. All sides of this conflict have objected to the USA trying to interfere with internal affairs of El Salvador.

Even for Salvadorans it is difficult to understand the Supreme Court stalemate because it is as complicated as it is serious. In addition, like in the USA, the media presents partisan spin as news rather than verifying its accuracy. Based on interviews with several people, including a member of the National Assembly, this is a chronological description of the conflict including the current status.

Historically, the political party, ARENA, representing the economically privileged class, has always controlled all branches of government, that is, the Presidency, a majority in the National Assembly, and the Supreme Court who is elected by the Assembly. Critics claim that the Supreme Court has favored friends of ARENA and has been prejudiced against the interests of the middle and underprivileged classes.

Starting in 2009, Salvadoran politics changed because for the first time in history ARENA lost the presidency to the FMLN candidate, Maurice Funes. While in the legislature, ARENA continues to have the most delegates, all the other parties, if they vote together, now have a majority of votes. This has created the opportunity to end ARENA’s control over the Supreme Court.

While ARENA wants to portray this as a conflict with the FMLN, in fact, it is between ARENA and all the other political parties, including left, middle, right, religious, and business parties. If ARENA could convince other parties to join them, they would have an absolute majority that would end this conflict in their favor.

According to the Constitution, the Supreme Court consists of 15 justices. Every 3 years, five are elected to 5 year terms by the Assembly. After each 3 year election, the Assembly elects a president to the Supreme Court, and the each justice is assigned to the Constitutional Court, Criminal Court, Civil Court, or Administrative Court (suits against governments).

Since legislators in the Assembly are elected to 3 year terms, each one usually elects one set of 5 justices. However, in 2006, unsure of the changing attitudes of the electorate, ARENA sought to ensure their control of the Supreme Court by selecting a second set of 5 justices just prior to the upcoming election. The FMLN objected, but ARENA pointed out that the Constitution says that the Assembly elects 5 justices every 3 years, but does not explicitly stipulate that the same legislative group cannot name a second set before leaving office. The FMLN decided to avoid a Constitutional crisis by accepting the change in precedent.

In 2009, another set of 5 justices were elected, but in 2012, near the end of the legislative term, a coalition organized by the FMLN elected a second set of justices as had been done by ARENA in 2006.

ARENA claimed that it was not Constitutional for this legislature to elect a second set of justices. When confronted by their own precedent set in 2006, they responded that they were wrong in 2006, and therefore these new justices should not be seated now.

ARENA brought their case to the Constitutional Court, made up of justices appointed in 2009. These justices decided that despite the lack of clarity in the Constitution, the second elections in both 2006 and 2012 were unconstitutional. However, they also decided that the justices elected in 2006 by ARENA could remain in office, but those elected in 2012 cannot not serve.

Critics argued that the Supreme Court had the right to decide that the second elections in 2006 and 2012 were unconstitutional, but the court could not decided to make an exception that allows the 2006 group to serve because constitutionally only the Assembly, and not the court, decides who shall serve on the court.

The position of the 2009 justices is that only they are legitimate justices. However, lawyers who work in the court brought suit against those 2009 justices claiming that they also are not legitimate. Those 2009 justices, serving on the Constitutional Court, responded that they are above the law not under the law.

To investigate the charges that the 2009 justices were also not legitimate, the Assembly created a Commission. The Commission report will be delivered to the General Attorney, although few expect him to take action since he represents ARENA. The goal of the Assembly is to make the facts public.

The case against the 2009 judges is based on the process by which they were elected. To name judges Salvadoran law establishes a special Commission charged to collect two lists of candidates for the Supreme Court, one from lawyers and another from judges. Each candidate is rated and the top 15 from each list are sent to the Assembly who selects 5 justices from those 30 candidates. However, in 2009, 3 members of the Commission put their own names on the list of 30. After this was successfully challenged, the list had only 27 candidates. ARENA then pressured the Commission to add 3 names, which resulted in the selection of 3 candidates favored by ARENA even though these 3 were lower-rated and not among the candidates who were next on the priority list. These justices are now on the Constitutional Court deciding in favor of ARENA, that is, they are among those who decided to allow the 2006 judges to serve even though they had also ruled that the approval of the 2006 and 2012 judges were both unconstitutional.

Another controversy is that those five 2009 justices elected one of the five as president of the Supreme Court despite the law requiring that the Assembly must elect the president of the Supreme Court. The coalition of parties that oppose the ARENA maneuvering and the actions of the 2009 court justices are claiming that the Supreme Court is invading the powers of the Assembly.

To resolve this Constitutional crisis the FMLN with the coalition of the other political parties brought the case to the Central American Court. ARENA claims that this court does not have jurisdiction to decide domestic issues. However, when the court was organized by the 5 Central American countries, the agreement was signed by Cristiani, the ARENA president, and Flores then ARENA majority leader in the legislature and the next ARENA president of El Salvador.

The Central American Court has decided that the case is within its jurisdiction and has issued an injunction calling for all elected justices to serve, allowing the Salvadoran Supreme Court to function, until the Central American Court has made their ruling.

Last Wednesday, 18 July, the “president” of the justices arrived at the court with 25 armed men. He claimed that both 2006 and 2012 justices were not legitimate and forced them to leave the court buildings.

On Tuesday, 24 July, President Funes convened a negotiation session that included all parties. After 10 hours, they issued a statement of agreement about 5 points along with a preamble that said that negotiations were not finished and had to continue. They agreed that:

  1. Supreme Court rulings must be consistent with the Constitution.
  2. The Supreme Court must follow the text of the Constitution and not change it by interpreting items that are not now clear.
  3. The Constitution can be changed only by using Article 248, that is, 1 elected legislature must approve a change by a majority and then a second elected legislature must confirm that change with a two-thirds vote.
  4. A political solution is desired by all parties.
  5. El Salvador does not intend to endanger international cooperation, but will not be influenced by threats from countries seeking to interfere with their internal affairs.

Pressure initiated by Senators Rubio and Menendez was solicited by Juan Jose Daboud, former ARENA minister of treasury, who is the brother of George Daboud, president of ANEP an organization of business owners and corporations that supports ARENA.

Latest Update Posted to Tim’s El Salvador Blog[ref]From “Tim’s El Salvador Blog”, http://luterano.blogspot.com, August 12, 2012[/ref]

After seven negotiating sessions at the Presidential Palace, the leaders of El Salvador’s political parties have reached a small level of agreement. All parties have agreed to re-elect the 2006 class of magistrates. With respect to the 2012 class of magistrates, the parties have agreed to the list of names of 11 lawyers from which they will elect the magistrates, but they have not agreed on what roles on the court those lawyers might be elected to.

Thus ARENA leaders have made it clear that they do not want Ovidio Bonilla, the magistrate who was elected president of the Supreme Court in April 2012, to be the president of the Supreme Court. Now that they have the votes to block a two-thirds majority, they are insisting they will not approve the selection of a court president who they believe has strong ties to the FMLN.

There is apparently no agreement on the class of 2009 magistrates and whether the National Assembly will continue to assert that Belarmino Jaime has been effectively transferred out of the Constitutional Chamber. A new development this week is the announcement of the FMLN that it will seek to impeach another of the 2009 magistrates, Rodolfo González, on the basis of an alleged incident of domestic violence directed at his wife in 2004.

With the start of the August festivals, the negotiators are going to join the rest of the country on vacation and resume negotiating on August 7. The National Assembly will come into session for the new elections of the 2006 and 2012 magistrates. The party leaders agreed the elections will be “nominal and public” — whatever that means.

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