The Constitutional Chamber of the Supreme Court has played a prominent role in El Salvador in recent years. In 2009, when five new judges were elected – four of whom were appointed to the Constitutional Chamber, a true “judicial revolution” began. These four judges were characterized by their independence and their refusal to succumb to pressures from political and economic powers, which made the Constitutional Chamber an important model for judges and courts in the region.

Under the mandate held by any constitutional tribunal, the Constitutional Chamber has issued several decisions of great importance for the country. These decisions were not always to the liking of political powers. As a result, over the past two years there have been incessant attacks on the Constitutional Chamber  and its members. Most of these attacks, such as Decree 743 of June 2011 , originated in the Legislative Assembly.

The current constitutional crisis in El Salvador has reached a level which is potentially even more damaging to the rule of law. In judicial decisions made in June 2012, the Constitutional Chamber declared the 2006 and 2012 appointments of judges to the Supreme Court unconstitutional, ordering the Legislative Assembly to do the appointment process for the judges originally elected in those years, again. The Constitutional Chamber also ruled that the Legislative Assembly should make the selection process transparent, and provide the reasoning for its decisions, as well as documentation that verifies the competence of people chosen as Supreme Court justices.

Rather than abide by the rulings, as befits any decision of a Supreme Court, the Legislative Assembly decided to ignore the Court’s decisions – because it disagreed with them. Instead of seeking a solution to this institutional crisis by finding a way to comply with the court orders, the Legislative Assembly filed a lawsuit against the Constitutional Chamber in the Central American Court of Justice (CCJ), the judicial organ of SICA (Central American Integration System).

The CCJ admitted the application on the basis of Article 22, paragraph f of its Statute, which states that the CCJ can “examine and rule, at the request of the affected party, on conflicts that may arise between the fundamental organs or powers of the State, as well as when judicial rulings are not respected in fact.” However, this article should be interpreted within the spirit of the purpose for which the CCJ and SICA were created: to promote Central American integration. This means that the CCJ has jurisdiction over issues related to the purpose of SICA: “the realization of the integration of Central America so as to consolidate it as a region of peace, freedom, democracy and development” (Article 3 of the Protocol of Tegucigalpa [that created SICA]).

The case presented by the members of the Salvadoran Legislative Assembly has nothing to do with Central American integration, the issue that the CCJ watches over (in support of SICA). Rather, the content of the Protocol of Tegucigalpa and the rest of the Statute of the CCJ suggest that the rationale of art. 22 subsection f of the Statute of CCJ is to protect the rule of law in each SICA Member State, in pursuit of the purpose of SICA as mentioned in art. 3 of the Protocol of Tegucigalpa. Respect for the rule of law includes, amongst other issues, complying with court rulings. In that sense, it is worrisome that the CCJ has admitted the claim presented to it by the Legislative Assembly, because it is precisely the Assembly which, through its actions, is violating the rule of law in El Salvador.

It is important to emphasize that no other court has jurisdiction to interpret national law other than the highest court of the country: the Supreme Court – and its Constitutional Chamber has jurisdiction to interpret the Constitution. There are international courts that can judge the actions of States, such as the Inter-American Court of Human Rights, but those courts rule on the basis of the treaty or convention that they were created to protect. (In the case of the Inter-American Court of Human Rights, this is the American Convention on Human Rights.) They can never decide cases on the basis of national law – c constitutional or otherwise.

The Legislative Assembly, by refusing to abide by the rulings of the Constitutional Chamber, not only violated the rule of law in the country but also the sovereignty of the Salvadoran State, through the involvement of an international court without jurisdiction in the matter. This attitude is not constructive and shows an alarming lack of respect for the institutional order and the check on State powers.

The Legislative Assembly should respect the rulings of the Constitutional Chamber and re-do the selection processes for the judges and alternates that were originally elected in 2006 and 2012, thereby taking into account the guidance provided by the Constitutional Chamber’s in its recent decisions, on making the selection process transparent and providing a motivation for its decisions on selection.

This crisis shows that it is of fundamental importance that the Legislative Assembly create and implement a selection procedure for judges that is more robust and rigorous with respect to transparency and the investigation of candidates’ merits. The guidelines for a transparent and meritocratic selection of Supreme Court judges , prepared by DPLF, offer some suggestions. Only through a process of this nature will it be possible to strengthen the Judiciary and the rule of law in El Salvador.

For more information on these issues, you may view the following documents: