Amidst high tensions between the legislative and judicial branches of the Salvadoran government, the Legislative Assembly voted on June 14 to reject a recent Supreme Court decision invalidating the elections of ten of the Court’s fifteen Magistrates and their alternates.
The Salvadoran Constitution mandates that each Magistrate of the Supreme Court serve a nine-year term, and that one-third of the court (that is, five Magistrates) be elected every three years by the national Legislative Assembly, which is also re-elected every three years. The Constitution does not, however, specify which legislature is to elect them.
In 2006, facing a significant loss of seats in the incoming legislature, ARENA pushed for a second round of magisterial elections to ensure their influence over the Court. While the FMLN denounced this maneuver, the judicial branch did not question its constitutionality, granting it legitimacy. However, when the FMLN, finding itself in a similar position in April 2012, convened a second round of elections, the issue was immediately undertaken by the Supreme Court of Justice.
In May 2012, a coalition of NGOs brought two separate claims to the Supreme Court, alleging that previous elections of Supreme Court Magistrates were unconstitutional. The Constitutional Chamber, a four-Magistrate body of the Supreme Court, agreed, ruling unanimously that the 2003-2006 Legislative Assembly acted unconstitutionally by electing ten Magistrates (five in 2003 and five in 2006), as did the 2009-2012 legislature, electing five Magistrates in 2009 and five this April.
The ruling thus invalidated the elections of those Magistrates elected in 2006, who are still serving, and those elected in 2012, who were to assume their seats on July 1st. Those elected in 2006 may continue to serve and issue decisions, said the Chamber, until the new elections are held.
While the Chamber ruled that all decisions issued by the Magistrates elected in 2006 will stand, they directed the Legislative Assembly to hold two rounds of elections, one to replace the Magistrates elected in 2006 and one to replace those just elected in April, essentially replacing two-thirds of the court. Considering that 56 out of 84 votes are required to elect a Magistrate, no one will be elected without ARENA’s votes, giving the right-wing party tremendous power over the process.
In the March 2012 legislative elections, ARENA re-gained a number of seats they had previously lost to the FMLN and as a result of a mass exodus to the new right-wing GANA party in 2010. By the end of the 2009-2012 session, ARENA only had 18 votes and thus, little influence over the April 2012 magisterial elections; now, ARENA has 33 seats in the 2012-2015 session, the most of any party.
The Legislative Assembly has overwhelmingly opposed the Constitutional Chamber’s ruling. As Norma Guevara, FMLN legislative leader, explained, “The result is slanted toward the interests of ARENA and the financial oligarchy of this country.”
Many legislators pointed out that the Court is ordering the legislature to do precisely what they deemed unconstitutional: elect two rounds of justices. FMLN legislator Roberto Lorenzana termed the decision “magical surrealism.” In addition to objections to the ruling’s logic, some accused the Chamber of a conflict of interest. Two Magistrates, the legality of whose candidacies is currently being investigated by the Assembly, recused themselves from the case. But many point to the impropriety of magistrates ruling on the legality of their own positions and the positions of their colleagues.
On June 14, all political parties in the Assembly voted in favor of rejecting the Court’s ruling, with the exception of ARENA and the single Cambio Democrático delegate, who abstained. Denying the legitimacy of the decision, the Assembly appealed to the Central American Court of Justice, located in Nicaragua, to challenge the Court’s ruling.
On June 23, the Central American Court found in favor of Assembly, issuing an order to suspend the Constitutional Chamber’s original decision. The Chamber, however, declared on Monday that the regional body’s order is “inapplicable” and ordered the Assembly to proceed with the elections of new magistrates.
This is the second constitutional crisis instigated by the ARENA party and their latest attempt to provoke conflict among the branches of power in El Salvador. In 2011, the ARENA and their allies passed Legislative Decree 743, mandating that the Constitutional Chamber must vote unanimously to deem any law unconstitutional. The Decree was opposed by the FMLN and met with vehement opposition by social movement groups, and the legislature soon voted to repeal it. (Read CISPES’s coverage here).
A 2008 cable from the Embassy reveals that manipulating the Supreme Court was part of ARENA’s “Plan B” if they were to lose the 2009 elections. The illegal impeachment of President Lugo in Paraguay last week is another demonstration of the legal and judicial manipulation to which right-wing parties are turning in order to undermine new progressive and leftist presidents.