Lessons learned from El Salvador's constitutional crisis
El Salvador's National Assembly reelected previously barred magistrates, moving a step toward national consensus that the Supreme Court has the last word on the country's Constitution.
• A version of this post ran on the author's blog. The views expressed are the author's own.
El Salvador's constitutional crisis is officially over. The National Assembly has re-elected the magistrates to the classes of 2006 and 2012. The four judges of the constitutional chamber including Belarmino Jaime continue with their roles set out in El Salvador's constitution. The Supreme Court has a new President, Salomón Padilla.
What are the lessons of this protracted crisis?
A victory for constitutional order. The resolution of the crisis represented a vindication for the Constitutional Chamber. The National Assembly and President Funes were forced to re-elect magistrates to the Supreme Court in compliance with the rulings of the Constitutional Chamber. The politicians were forced to back down from their attempt to transfer Belarmino Jaime out of the Constitutional Chamber, a move the Chamber had ruled violated the constitution. Thus El Salvador moved a step forward toward having a societal consensus that the Supreme Court, and in particular the Constitutional Chamber, has the last word when it comes to deciding what actions are in compliance with El Salvador's constitution.
Irrelevance of the Central American Court of Justice. The petition of El Salvador's National Assembly to the Central American Court of Justice in its dispute with the Supreme Court changed nothing. Although the CACJ first issued a preliminary ruling against the decrees of the Constitutional Chamber and later issued its final decision, these rulings had little impact in El Salavador except, perhaps, to prolong the crisis. The Constitutional Chamber ruled that the CCSJ did not have jurisdiction over matters of El Salvadoran constitutional law, and the final resolution of the crisis reflects this.
Role of the US. El Salvadoran commentators, particularly those on the left, pointed to pressure from the US government as forcing this resolution. Statements out of Washington concerning the possible suspension of US aid to the country if the crisis were not resolved were widely reported in El Salvador and may have prompted President Funes to convene the negotiation sessions which ultimately resolved the crisis.
The US can and should promote good governance and the rule of law in countries where it has a relationship. But in this case, I wish it had been done with more quiet, behind-the-scenes diplomacy. The very public statements from US government officials only enhance the appearance of a US willing to interfere freely in internal El Salvadoran affairs. It also provides material for that old ARENA propaganda tactic of alleging that an election of a left-wing candidate will result in the cessation of US aid, the elimination of TPS and other dire consequences.
The President's Role. Credit should be given to President Funes for his role in convening the roundtable discussions of political party leaders which produced the resolution. While the process was not pretty, the 17 negotiating sessions eventually did produce an end to the crisis. While Funes had missteps in the crisis, such as his early support for the petition to the Central American Court of Justice, he corrected course when pushing the parties to negotiate on the basis of the rulings of the Constitutional Chamber.
What's next? Another potential clash between court and legislature is shaping up. In the early days in the constitutional crisis, the Constitutional Chamber ruled that Astor Escalante had been elected improperly as attorney general. But Sigfrido Reyes, president of the National Assembly, is indicating today that he considers the matter closed and that Mr. Escalante remains the valid attorney general. Perhaps a return to Funes roundtable is needed?
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