Ursula Indacochea** y Sonia Rubio Padilla***
he night of Saturday, May 1, 2021, when the Salvadoran Congress decided to mortally wound the country’s justice system, could be a long night, one of those that darken with the passage of time. But no night lasts forever. President Nayib Bukele and the deputies of his political party Nuevas Ideas may not be aware today of the need for an independent judiciary; but the lack of legal certainty and the condemnation of the international community will inevitably be reflected in a flight of investment, the contraction of the economy, and the absence of conditions for prosperity. The experience of the region has shown, systematically, that authoritarian governments and their leaders, at some point then turn to justice for protection. And it is there that history, and the debris of justice, paid them back with the same coin.
The strategy of capture of the Constitutional Chamber
The capture of El Salvador’s Constitutional Chamber did not begin on May 1. It began long before, when from the privileged tribune of official discourse, President Bukele launched a campaign of attacks, harassment and criminalization of the highest constitutional body. From the open contempt of its rulings to the accusations of the Chamber as «corrupt» or as «guilty» of the deaths and contagions during the pandemic, Bukele was building a hostile narrative towards justice, replicated and increased by his followers in the networks. In this way, he deliberately fabricated a disease to later appear with «the cure».
Exemplary is the fact that, in August 2020, Bukele stated in a presidential conference that «if he were really a dictator» he would have shot the five magistrates of the Constitutional Chamber of the Supreme Court for declaring unconstitutional the decrees issued during the lockdown due to the coronavirus pandemic. His words were: «I would have shot them all or something like that, if I were really a dictator. Save a thousand lives for five.» Another sample of the tenor of this narrative is his tweet of April 15, 2020: «I don’t understand the morbid desire you have for our people to die, but I swear I would enforce the Constitution. Just as I would not abide by a resolution that orders me to kill Salvadorans, neither can I abide by a resolution that orders me to let them die.»
«Clean the house» was what he called an operation to dismantle the justice system and eliminate democratic controls. A strategy, by the way, that Ecuadorian former president Rafael Correa described better than anyone else in his January 2011 speech: «They will say that we want to put our hands in the courts; yes, we want to put our hands in them, for the good of the Ecuadorian people». Just two years earlier, in February 2009, Evo Morales did the same in Bolivia, although through a Law of Necessity of Transition to the new entities of the Judiciary and the Attorney General’s Office, which declared the transition of all positions in the high courts and established a call for elections to appoint their replacements.
What Bukele and his supermajority in the Congress did, was a quick and sharp blow. In a matter of a few hours, as the inaugural act of its first day of operation, the new Congress processed a motion for the dismissal of the five magistrates of the Constitutional Chamber and their alternates, which was exempted from the regular procedures of study and opinion in parliamentary commissions, to be voted and approved in the Plenary with 64 votes in favor, out of a total of 84 deputies.
The motion (called a piece of correspondence) explained the reasons for the dismissal as a popular trial, arguing that «the national […] and majority disconcert of the citizens, expressed in the recent elections of last February 28, in view of the multiple anti-popular sentences of the Constitutional Chamber». In addition, the document accused the magistrates of «exercising powers not authorized by the Constitution», of «violating the separation of powers that correspond to the Executive, especially in matters of health» and of «becoming a superpower». The following paragraph clearly reflects the central axis of the accusations:
The generalized risk to public health since January 2020, as well as the unjustified deaths that have occurred in the population since that month, because of an abusive interference with a self-attributed sanitary power of the Constitutional Chamber, is the direct and unquestionable responsibility of the Chamber […], as evidenced by the citizenry.
The document and the charges it contain were never notified to the magistrates of the Constitutional Chamber, nor were they summoned to the parliamentary precinct so that they could formulate their defense. Although it would have been difficult for them to do so, since in this piece there is no individualization of the conducts that each one is accused of. With this, the Congress swept away twenty years of rulings of the Inter-American Court of Human Rights, which since 2001 -in the cases of Constitutional Court v. Peru and Baena Ricardo and others v. Panama- made it very clear that the removal of judges without respect for due process constitutes a violation of the American Convention on Human Rights.
In the face of international condemnation, President Bukele felt compelled to explain. «The dismissal of the magistrates of the Constitutional Chamber, by the @AsambleaSV, is an UNCONTROVERTIBLE power, CLEARLY expressed in article 186 of the Constitution «, he tweeted, just moments after the act was consummated. A half-truth, since the president deliberately omitted to mention that article 186 itself imposes a condition:
«The justices of the Supreme Court of Justice shall be elected by the Legislative Assembly for a term of nine years. They may be reelected and shall be renewed by thirds every three years. They may be removed by the Legislative Assembly for specific causes, previously established by law […]».
A prior law that clearly establishes the specific and serious causes for which a Supreme Court justice can be removed from office does not yet exist in El Salvador. This is not an irrelevant detail, but the most elementary requirement of the rule of law: that no one can be sanctioned for causes that are not clearly and previously stablished in the law. This is the basic formulation of the principle of legality.
The capture strategy of the Attorney General’s Office
The Attorney General’s Office was an objective of Nayib Bukele’s government since his presidential campaign. His promise to create an international anti-corruption mechanism, similar in essence to those implemented in Guatemala and Honduras, rested on a premise that no one disputed at the time: the weakness of domestic institutions, specifically the Attorney General’s Office, to successfully prosecute corruption in the country.
Once elected president, and while negotiations with the UN and the OAS were advancing in a framework of total opacity, then Attorney General Douglas Meléndez declared to the press that he did not know the basic terms of the government’s proposal. The same happened with his successor, AG Raúl Melara, who was never consulted on the essential needs of the institution, which would precisely come to be supported by the external mechanism. In November 2019, as a product of an agreement with the OAS and without the participation of the Attorney General’s Office, the CICIES was born, tailored to the President’s proposal.
The CICIES was slow to become fully established, and when the pandemic arrived, President Bukele commissioned it to audit the funds destined to address it, limiting its capacity to collaborate with the Attorney General’s Office. The same narrative of harassment and public discrediting was implemented against the Attorney General, which fed the historical public distrust in the institution. Several actions by the AGO irritated Bukele’s mood, such as the announcement by AG Melara to investigate officials of the government circle for irregular contracting with pandemic funds. Subsequently, the support in the forensic investigation work provided to the AGO by the National Police, which depends on the Executive, was reduced or slowed down. In general, Bukele did not hide his interest in having the Attorney General’s Office investigate some of his political enemies – for example, the former President of the Congress, Norman Quijano – and accused AG Melara of «protecting» them.
On the night of May 1, after the attack on the Constitutional Chamber, the Legislative Assembly decided to remove AG Raúl Melara from office. Again, without notifying the charges against him or giving him the possibility to exercise his defense. Decree No. 04, which removes him from office, mentions a «process of review, evaluation and verification of the profile» that never took place; and further on, it invokes the cause for removal provided for in literal a) of Article 25 of the Organic Law of the AG’s Office,
[p]ursuant to the failure to comply with its functions (…) it cannot objectively, adequately or correctly represent society and the Salvadoran State as a whole, since it does not provide guarantees of impartiality and independence, [nor] the required profile.
The unjustifiable violation: direct appointments of new authorities
The strategy of institutional capture was consummated with another pernicious act: a direct appointment of five new magistrates of the Constitutional Chamber, despite the fact that the internal legislation does not recognize the possibility of direct appointments by the Congress. According to the normative framework in force in the country, Congress can only appoint based on the nomination of a list of pre-selected candidates sent by the National Council of the Judiciary, 50% of whom are the best qualified in a public merit-based competition, and the remaining 50% are the candidates who obtain the highest direct vote of the lawyers of the country. In other words, not only was the competencies of another autonomous body completely ignored, but also the fulfillment of the minimum requirements to occupy this high position was not justified.
On that fateful night, in a matter of hours, the Legislative Assembly not only disrupted an institutionalized practice of selecting magistrates almost thirty years old, which, although perfectible, represented an achievement in the young Central American democracy. It also erased, at the stroke of a decree, the democratic spirit of this selection mechanism: as a product of the 1992 Peace Accords, and to minimize the risk of corruption and undue influence -especially political-, a mechanism was designed that gave participation to various institutions and sectors, to avoid that, as in the past, only one «dominated» or «had greater influence» in the appointments. This change subtracted the responsibility to nominate from the president and was divided between the National Council of the Judiciary (CNJ) and the Federation of Lawyers Associations of El Salvador (FEDAES), seeking to increase judicial independence. In addition, the majority required in the Congress for the appointment was increased to two thirds.
The direct appointments of May 1 cannot even be described as a «process” since there were neither stages nor a debate on merits. Unexpectedly, the Salvadoran deputies arrogated to themselves the power to nominate and appoint five persons who immediately accepted the position, despite its open unconstitutionality; and who, with the help of the National Civil Police, took possession de facto of theinstitutional seat of the Court. No one evaluated the background of the persons appointed, or whether they even met the formal requirements. Even less were their professional qualifications and political ties evaluated, something contradictory to the special concern of the deputies on this aspect, as expressed in the removal of AG Raul Melara. These five persons have been publicly questioned for not possessing the required notorious morality and, in addition, for having close ties with the Bukele Executive.
These links are relevant because, given the fundamental mandate that the magistrates of the Constitutional Chamber have, those who hold these positions must – at the very least – show respect for the Constitution and the rule of law, and therefore, submit to the previously established procedures. In simple words: no one with a democratic vocation could accept an appointment that is the result of the violation of the Constitution. What guarantee could they offer to the citizenship, that they would defend it from the Court, if they consent to its original violation? This essential contradiction, which affects the original legitimacy of their appointments, inevitably reaches and is inseparable from the legitimacy in the exercise of the office. The result: these officials lack the legitimacy necessary for the exercise of such important functions.
The appointment of a new head of the Attorney General’s Office met the same fate. Without prior analysis of the background of the person appointed, and without convening a public merit-based competition, the Assembly made a direct appointment, violating the law for the second time.
The current Salvadoran institutional landscape is alarming from multiple reasons. The first is that President Bukele not only celebrated the arbitrary removal of public officials but has publicly defended it in his social networks and on national television. The motivations are political in nature and this has been made clear in his public interventions. Certainly, the fact that the Executive «celebrates and defends» the institutional capture -by the Legislative- of the Constitutional Chamber and the Attorney General’s Office is a very dangerous precedent, which leaves the democratic regime hanging by a very thin thread and confirms the authoritarian drift of his government.
The second is the serious deterioration of judicial independence in El Salvador which is an objective condition in any democratic State based in the rule of law, since it allows the exercise of the judicial and prosecutorial function without pressure, threats, subjection or interference, and the existence of democratic counterweights within the State. What happened last May 1 violates two fundamental aspects of judicial independence: first, the guarantees of secure of tenure, legality and due process in the mechanisms of removal of its high authorities, which means in practice that no judge in the country enjoys protection against external or internal pressures; and second, the guarantees of legality, transparency, meritocracy in the appointments, which implies recognizing the rule of corruption, arbitrariness and political influence on justice.
This article is published as product of the alliance of the DPLF blog and the State of Law Agenda, an initiative of the State of Law Program for Latin America of the Konrad Adenauer Foundation. The publication is available simultaneously on its website. To access click here.
 DPLF, El proceso de selección de magistrados de la Corte Suprema de Justicia de El Salvador: recomendaciones para una reforma necesaria, December 2016, available online: http://dplf.org/en/resources/el-proceso-de-seleccion-de-magistrados-de-la-corte-suprema-de-el-salvador-recomendaciones
*This article is published as a product of the alliance of the DPLF blog and the blog Agenda Estado de Derecho, an initiative of the State of Law Program for Latin America of the Konrad Adenauer Foundation. The publication is available simultaneously here: https://agendaestadodederecho.com/independencia-judicial-en-el-salvador/
** Director of the Judicial Independence Program at DPLF.
*** Director of DPLF Office- El Salvador
Foto: AP Images/Salvador Melendez, File