Under government attack, Salvadoran judges seek international remedy

Jose Cabezas/Reuters/File
Magistrates Luis Suarez Magana, Elsy Duenas Lovos, Jose Angel Perez Chacon, and Hector Nahum Perez Garcia (left to right) stand to take the oath on May 1 after Congress removed the previous Constitutional Court members at President Nayib Bukele's behest.
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In El Salvador, the populist president, Nayib Bukele, is dismissing judges by the dozen, including all five members of the Constitutional Court. He says he is trying to root out corruption. Critics fear he is seeking to eliminate democratic constraints on his autocratic rule.

But now that the top courts are in the hands of President Bukele’s allies, there is nothing that ousted judges can do except seek international justice. That’s what they have done, appealing to the Inter-American Commission on Human Rights (IACHR) and its associated court.

Why We Wrote This

When an authoritarian leader runs roughshod over the law, where can judges turn? El Salvador’s Constitutional Court judges, illegally fired en masse, are looking to international law.

That court has reinstated Latin American judges before, but not often, and only after years of investigation. By the time it rules on the El Salvador case, the country’s democracy could be fatally wounded, activists in San Salvador worry.

International pressure is mounting: The U.S. government imposed sanctions this month on the new judges who replaced the illegally fired Constitutional Court justices. But the IACHR “has to work quickly” says one human rights advocate, because Mr. Bukele “is on the path to a dictatorship.”

El Salvador’s five legitimate Constitutional Court judges, among the last bastions of their country’s democracy, were in a quandary.

The judges were illegally fired this May by a legislature loyal to populist President Nayib Bukele, so their normal recourse for redress would be … the Constitutional Court. But now that the legislative assembly has packed the bench with judges supportive of the government, they could hardly expect a fair hearing.

So, in an unusual move, the ousted justices are appealing to the international justice system, in the form of the Inter-American Commission on Human Rights (IACHR). It’s a long shot, but a lot is hanging on their move, says Katya Salazar, executive director of the Latin America-focused Due Process of Law Foundation, based in Washington, D.C.

Why We Wrote This

When an authoritarian leader runs roughshod over the law, where can judges turn? El Salvador’s Constitutional Court judges, illegally fired en masse, are looking to international law.

President Bukele is “on the path to a dictatorship. He already broke the democratic rules,” warns Ms. Salazar. The IACHR “has to work quickly.”

Judicial independence is under attack by authoritarian leaders across Latin America. In recent months, Mexican President Andrés Manuel López Obrador tried (but failed) to extend a Supreme Court judge’s term in defiance of the country’s constitution, Guatemala’s attorney general fired the country’s top anti-corruption prosecutor, and Brazilian President Jair Bolsonaro threatened to stop complying with Supreme Court rulings if one of its judges did not resign.

In El Salvador, the new Constitutional Court judges are already transforming the political landscape. Hours after their predecessors filed their petition to the IACHR, the new court ruled that President Bukele – Latin America’s first millennial president – can run for two consecutive terms of office, ignoring an explicit ban on such a maneuver in the constitution.

Last weekend, the Supreme Court named nearly 100 new judges as part of a controversial judicial reform that forces magistrates into retirement at age 60 or after 30 years of service and allows the 15-judge Supreme Court to arbitrarily transfer judges to new courts.

Salvador Melendez/AP
Salvadoran President Nayib Bukele delivers his annual address to the nation before Congress on June 1, 2021. He has alarmed pro-democracy activists with his assault on the judiciary and hints that he might run for reelection despite a constitutional ban.

“We hope that the Inter-American system responds quickly … because of the seriousness that this represents, not just for the judges, but for the country and our democracy,” says Salvadoran Judge Juan Antonio Durán, one of the few working judges to publicly criticize the Bukele government.

He was transferred from the capital, San Salvador, to a provincial court on Sept. 26, in what he sees as retaliation against him. 

The IACHR and its associated court have successfully restored judges in the past, such as in Honduras in 2015. But the judgment only came down six years after the judges had been illegally dismissed in the wake of a military coup.

“By the time the case is decided, the political, institutional, and democratic situation can be completely different,” acknowledges Ariel Dulitzky, a former assistant executive secretary of the IACHR who is now director of the Human Rights Clinic at the University of Texas.

So Mr. Durán and his fellow judges are seeking other means to pressure the Bukele administration, including appeals to the U.S. embassy.

Earlier this month, the U.S. State Department added the illegally appointed Salvadoran Constitutional Court judges to the Engel List of corrupt and undemocratic Central American officials. The list is named for Eliot Engel, the former congressman who wrote legislation providing for travel bans and other sanctions, such as an asset freeze, on those listed.

“All efforts are important,” Mr. Durán says. “We’ve taken the legal path, both international and national, the diplomatic path, the political path, and in the streets.”

Jose Cabezas/Reuters/File
People hold a banner reading "Bukele coup plotter" as they protest against the removal of Constitutional Court judges and the attorney general by the Salvadoran Congress, in San Salvador, El Salvador, May 2, 2021.

While judges and civil society activists in El Salvador pressure the Salvadoran government to restore democratic institutions, the IACHR case can bolster their efforts, explains Mr. Dulitzky. Each step – hearings, country visits, and reports – requires outreach by the judges and attracts renewed media attention, which can help garner support. Requiring the state to justify its position can sometimes lead to settlements and negotiations. An international court case can also expose cracks within governments and encourage dissenters to come forward.

“The process of the Inter-American system is as important as the outcome,” says Mr. Dulitzky.

Meanwhile, President Bukele and his New Ideas party continue to pass new reforms. They argue that their changes to the justice system will rid the country of corruption, a hot-button issue for Salvadorans who have lost faith in the country’s two traditional parties after high-profile corruption scandals.

According to a May 2021 poll, nearly 80% of Salvadorans said they believed Mr. Bukele was doing a good job after two years in office. 

“Whoever doesn’t have money to pay off a judge pays with jail time,” complains Amadeo Lopez, a rural teacher and Bukele supporter. “What this president is doing is better than what the others have done.”

Mr. Bukele has become increasingly defensive in the face of criticism since taking office in June 2019, and often uses his Twitter account to air his grievances.

When U.S. Secretary of State Antony Blinken and Vice President Kamala Harris condemned the dismissal of the five Constitutional Court judges he tweeted a message to “the international community” that “we are cleaning our house ... and that’s none of your business.”

That attitude does not bode well for compliance with any IACHR ruling, which largely relies on a government’s willingness to adhere to its international human rights commitments.

“The panorama is bleak,” says Astrid Valencia, a Central America researcher at Amnesty International. “But this shouldn’t deter the work of denouncing, documenting, and bringing the attention of key international actors.”

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