Ursula Indacochea Prevost*
Versión en español aquí.
Last Wednesday, March 16, a public hearing was held before the Inter-American Commission on Human Rights (IACHR) to address the situation of judicial independence in El Salvador. In it, the petitioning organizations presented to this international body a reading of various decisions, facts and arbitrary reforms that occurred in 2021, as a strategy to capture the justice system, executed with the deliberate aim of neutralizing its ability to control power and protect human rights.
The State, for its part, deployed an opposite narrative: all these acts would have obeyed, rather, to the objective of «strengthening and modernizing» a justice system «inefficient and conducive to widespread impunity». In this note, I intend to answer some of these arguments to demonstrate that there are reasonable grounds to consider that the state’s commitment to judicial independence is not sincere or, even, that there is a manipulation or appropriation of the discourse in defense of judicial independence, for purposes contrary to those stated.
As a starting point, it is worth briefly summarizing the civil society approach. It was argued that the Salvadoran justice system -which includes both the judiciary and the Attorney General’s Office- has been the object of a strategy of capture by the political power currently in government, executed in various stages.
At the beginning, a hostile public narrative towards justice was promoted by the official political discourse (we all remember the tweets of President Bukele, disciplinedly replicated by the Cyan deputies), to build or exacerbate a negative image of the justice institutions and their authorities, which would later serve as justification for the measures that followed: the summary and arbitrary removal of all the Constitutional Court justices and the Attorney General, the direct appointment of their replacements, and the appointment of five additional magistrates to the Supreme Court.
Once the high authorities were under control, legal reforms were undertaken to implement a vertical control over the totality of judges and prosecutors; to this end, a maximum age or length of service limit was imposed, the guarantee of security of tenure was eliminated and exorbitant administrative powers of the Supreme Court of Justice and the Attorney General were strengthened. The next stage would seek to permanently consolidate these changes through a constitutional reform.
This approach can be seen in this graph:
Let’s go to the State. In addition to the unusual presence of representatives of the Executive in a hearing on judicial independence, the State delegation did not answer the claims about the degradation of the public image of justice promoted by the political powers, nor did it attempt to justify the removal of high authorities. Its response was focused on the reforms to the Judicial Career Law and the Implementing Law of the Prosecutor’s Office, approved by the Congress through Decrees 144 and 145, but using general, imprecise or even empty formulas. In the following, I will refer to three of them linked to the judicial career, which deserve to be answered. In a following article I will refer to the situation of the reforms to the public prosecutor’s office.
1. First argument: the Judicial Career Law required updating and its reform was aimed at «strengthening and modernizing» the justice system to make it «more dynamic and efficient».
Who could oppose strengthening the justice system or making it more efficient for the benefit of the people? The State began its presentation by pointing out that the Judicial Career Law «no longer responded to the current reality of work and the needs of the judicial body,» and that, for years, the Supreme Court was trying to implement reforms to modernize the courts, which would finally have been achieved with the legislative amendments. Specifically, the State pointed out that three things would have been achieved: (i) establishing more concretely the duration of the judicial career (by replacing the lifetime duration with a cap of 60 years of age or 30 years of service); (ii) updating the categories of magistrates and judges, to make their working conditions more equitable; and (iii) regulating more precisely the powers of the Supreme Court to make transfers of judges and magistrates to other positions, based on the need, specialty and complexity of the cases.
The narrative of «strengthening» is not unfamiliar to the IACHR; several attempts to weaken it have been disguised under the guise of «modernization». This type of justification looks good to the public, but should be viewed with caution, especially when it comes from the political powers, which are precisely those that will be limited or controlled by the justice system. In my opinion, the State’s justification is not very credible, for several reasons:
(i) Because any justice reform process that is justified on efficiency grounds must be duly supported by technical diagnoses with objective data. If one of the main changes introduced was to eliminate the lifetime term of office to impose a maximum limit, are there any previous technical reports that, in the first place, clearly indicate what the problem is and, based on data, conclude that the age or length of service of judges is the cause of this problem? What relationship does age or length of service have with the «modernization» of the justice service? And furthermore, were there other less harmful ways to solve it than retiring early one third of the country’s judges?
Reducing the duration of a judge’s term of office is not a measure prohibited by international law, if it is applied to those who were appointed after the reform, since applying it to those who entered a career regime under different conditions directly harms their secure of tenure.
In any judicial reform process, a minimum requirement is that it must address a real problem and that it must be demonstrated that the measures adopted are suitable, necessary and proportional to solve the problem. During the hearing, the State resorted to rhetorical and empty formulas. The problem that the reforms sought to solve, they have not yet been able to explain.
(ii) On the other hand, any reform process that affects judges cannot be carried out without listening to what they have to say. The IACHR has indicated on several occasions that the approval of public policies that affect human rights requires considering the voices of those who will be affected. International law establishes that the guarantee of secure of tenure is a right of judges and prosecutors; however, the reforms were not previously socialized with them, nor with civil society. On the contrary, they were approved with «dispensation of formalities», that is to say, in an express manner, without study in legislative commissions and without meaningful debate.
What is more serious is that the State pointed out that this reform had been long demanded by the Supreme Court, since the law initiatives did not come from the highest court. It was promoted by deputies of the ruling party, even though the Salvadoran Constitution clearly states that this type of law initiatives can only be submitted by the Supreme Court, precisely to safeguard its independence.
2. Second argument: the reform of the Judicial Career Law has only affected a few
The State did have numbers in hand to argue that the impact of the reforms was minimal, stating that «only five judges were dismissed, which is equivalent to 0.7% of the judges nationwide, because they did not express their desire to continue holding their positions in the judiciary».
According to the State delegation, only approximately 220 judges (out of a universe of 702 judgeships) were affected by the reforms. Of these, 96 judges (13.7%) have decided to resign voluntarily to receive a bonus of 24 salaries, while 121 (17.2%) have expressed their intention to continue serving, taking advantage of an «availability regime» in which they no longer have secure of tenure. For the State, only five people are affected by the reforms. In addition, they are victims because they did not express their desire to continue working in the judiciary.
This argument of the State demonstrates precisely that the reforms did not seek to reduce the number of judges as a priority, but rather to eliminate their secure of tenure. It is a fallacious argument, because those who have been removed from office are not only five people, but also the 96 judges who resigned, even though they did so with economic benefits, presented as an «incentive» that took advantage of their vulnerability as senior citizens.
On the other hand, the 121 judges over 60 years of age, or with more than 30 years of career, who today work in «availability regime» have not only lost the reinforced statute that protected them, but also their independence. Today, their possibility of continuing in office depends directly on the will of the Supreme Court, made up of 10 out of 15 members appointed by the governing party, which has completely devastated their internal independence. It is enough to imagine what could happen, for example, if they rule differently from their superiors.
Can we continue to say that only five people are affected?
3. Third argument: the judges have voluntarily accepted – and caused – their new situation.
The State placed, as a defense shield, the will of the affected judges themselves. It pointed out that it was they who, before the reforms to the Judicial Career Law came into force, voluntarily resigned their positions in exchange for economic benefits, expressed their willingness to continue exercising their positions in a regime without secure of tenure or, in the case of those who were dismissed, did not express their willingness to continue in their positions. This was especially mentioned in the case of the criminal judge in charge of the El Mozote case.
The State seeks to neutralize the claims of the judges by arguing that their situation is a product of their own free will. The resignation letters signed by them, and the receipt of economic bonuses, may prevent or hinder them from initiating labor claims internally, since if they do so, they would have to prove coercion and return what they have been paid. In the case of those who work under an “availability regime”, alleging coercion may cost them their jobs.
This is a perverse strategy. Probably none of the 220 potentially affected judges wanted to leave. The State deliberately created situations to force them to express their will. However, appealing to the voluntary decisions of the judges about their own situation does not prevent the incentives that were deliberately built from the political power and from the Supreme Court of Justice itself, to promote and even reward those decisions, from being analyzed as a violation of judicial independence, which also protects the operators of justice against external pressures.
I cannot fail to mention here a coincidence. A few days after the arbitrary removal of all the magistrates of the Constitutional Court, perpetrated on May 1, 2021, and while police patrols were located near their homes, most of the removed magistrates presented their letters of resignation, with almost identical wording. Is it just a coincidence that the most serious affectations to judicial independence in El Salvador end with voluntary resignations?
By way of balance of this commentary, I would like to highlight the importance of confronting the narratives on «strengthening» or «modernization» of justice, demanding prior and rigorous technical diagnoses that identify real problems and different courses of action to address them, that are shared and reviewed considering the opinion of the judges, and never behind their backs.
Reforms to the justice system must always respond to legitimate goals (efficiency is undoubtedly one of them) and the measures implemented must be evaluated from the perspective of their suitability, necessity and proportionality to achieve them. Otherwise, they may conceal authoritarian attempts to control the justice. In other words, let’s see if there is a wolf under the lamb.
*Program Director on Judicial Independence at DPLF.
Image: IACHR, via Twitter.