• A version of this post ran on the author's blog. The views expressed are the author's own.
This week El Salvador has two groups of judges, each claiming to be El Salvador's Supreme Court. On Sunday July 1, the judges elected in 2006 and 2012, entered the Supreme Court offices to claim their positions. They entered in a tense atmosphere with armed police surrounding the building. Those judges, however, were acting in defiance of the rulings of the Constitutional Chamber which said their elections were invalid.
At the same time, the president of the Supreme Court and president of the Constitutional Chamber, Jose Belarmino Jaime, has convened a court made up of justices elected in 2009 as well as substitute justices ("suplentes") to allow the Supreme Court to do its work until the National Assembly complies with the rulings requiring the legislators to conduct new elections of the judges from 2006 and 2012.
As I mentioned in my last post, this is a dispute about who has the last word when there is a constitutional issue. El Salvador's Constitution appears to give that power specifically to the Constitutional Chamber.
Article 183 of El Salvador's Constitution states:
The Supreme Court of Justice, through the Constitutional Chamber, shall be the sole tribunal competent to declare the unconstitutionality of laws, decrees, and regulations, by their form or content, in a general and compulsory manner, and it may do so on the petition of any citizen.
That ultimate role would seem to be superior to the treaty which set up the Central American Court of Justice:
Article 145 Treaties in which constitutional dispositions are in any manner restricted or affected shall not be ratified, unless the ratification is done with the corresponding reservations. The dispositions of the treaty on which the reservations are made are not law of the Republic.
Article 146 Treaties shall not be formalized or ratified or concessions granted, that in any manner, alter the form of government or damage or impair the integrity of the territory, the sovereignty and independence of the Republic or the fundamental rights and guarantees of the human person.
and Article 149 states, in part: The declaration of unconstitutionality of a treaty, in a general and obligatory manner, shall be made in the same form foreseen by this Constitution for the laws, decrees and regulations.
Civil society and commentators have been widely critical of the National Assembly and the refusal to acknowledge the ruling of the Constitutional Chamber.
The archbishop of San Salvador, José Luis Escobar, in his weekly Sunday press conference, called on all parties to respect the rulings of the Constitutional Chamber which was fulfilling its role under the Constitution.
Carlos Dada, editor of El Faro wrote:
We have gone back to the days when institutions of the State are made to accommodate the whims of the rulers. ... The Constitutional Chamber is empowered to rule on the constitutionality of state decisions just so long as it does not resolve them against the interests of their new fancies. Because if not, they have already shown how far they will go. But along the way, to eliminate some justices who make them uncomfortable, they are destroying the system.
Commentator and former Salvadoran ambassador to the United States, Ernesto Rivas described the installation of the new judges as a "circus" and "shameful" and referred to it as the installation of "spurious magistrates leading to a violation of the most basic constitutional principles, despite the overwhelming opposition to their illegitimate election."
An editorial from the University of Central America titled the "Empire of the Lie" focused on the actions which the Constitutional Chamber had taken over the past two to three years to act in favor of democracy and against the entrenched power of the political parties and big media. Calling it a "lamentable episode of the Salvadoran political night," the UCA editorial lamented that the executive and legislative branches had decided to get their way by force rather than respecting the Constitutional Chamber's prerogative. The UCA also chided President Funes about calling for respect of the Central American Court of Justice under a treaty, when his own government is in default under judgments rendered by the Inter-American Court of Human Rights on matters like the Serrano sisters case.