Ursula Indacochea*

Versión en español aquí.

On May 1, 2021, the Legislative Assembly of El Salvador resolved -as the first act in its first session- to remove all the magistrates and alternate magistrates of the Constitutional Chamber and the Attorney General of the Republic from their positions, and to directly appoint their replacements, placing in these positions a group of lawyers and a lawyer, respectively, related to their interests. These acts were unanimously condemned by international human rights organizations and civil society organizations throughout the region, as a repetition of the disastrous authoritarian experiences of the past and as a current threat to hemispheric democracy. One year later, the impacts of these actions have been manifold; some of them have become clearer with the passage of time. In this article I offer five approaches to these events with the purpose of making their different effects visible. 

1. Serious violations of all the guarantees of judicial independence

International human rights law guarantees judicial independence, both at the institutional level (of the judiciary as a whole) and at the personal level (of each individual judge). Various bodies, both of the United Nations system and the Inter-American system, have developed the contents of this guarantee: (i) an adequate appointment process, (ii) the guarantee of irremovability and (iii) the guarantee against external pressures. 

The events of May 1 violated all of these, without exception. The removal of high magistrates, based on the content of their decisions, without a serious cause previously established by law, and without due process, violated the guarantee of the irremovability of the members of the Constitutional Chamber. The pressures that forced the voluntary resignations of almost all the legitimate magistrates of this body -through letters with identical wording-, and the use of public force to take over the facilities of the Supreme Court of Justice and prevent them from entering their offices (in addition to installing their replacements), violated the guarantee against external pressures. Finally, the direct appointment without following the selection mechanism foreseen in the internal rules violated the guarantee of an adequate selection process.

2. The dissolution of the principle of separation of powers and the affecting of the democratic regime

The Inter-American Democratic Charter is an international instrument that reflects the commitment of the States of the Americas to protect and defend representative democracy. This commitment, signed by El Salvador, defines in its Art. 3 the essential elements of this regime; among them «access and its exercise in accordance with the rule of law», «the separation and independence of public powers» and «respect for human rights and fundamental freedoms».

The removal of high authorities of the justice system is an exceptional measure that, due to its impact on the system of checks and balances, is regulated by law and accompanied by certain guarantees. The Legislative Assembly exercised public power outside the law by removing the Constitutional Chamber and the Attorney General of the Republic and putting replacements in place without following constitutional procedures, while the lawyers who accepted to be placed in such positions did not accede to power in accordance with the law. Additionally, given that the other two branches of government -the Executive and the Legislative- were controlled by the same political force -the governing party, Nuevas Ideas- the irregular placement of persons with related interests in the high magistracies completely eliminated the separation of powers; therefore, since May 1, El Salvador no longer has three distinct and independent government powers, but a single political force in control of the three branches of government. 

3. The installation of distrust within the Judicial Branch

In situations of serious attacks on judicial independence in the region, the judiciary has generally managed to resist external pressures, using its esprit de corps. The courts themselves, or associations of judges, have stood firm in the face of power, as occurred during the dictatorship of Alberto Fujimori in Peru, or in the face of the removal of the Constitutional Court and the Supreme Court of Justice of Ecuador in the early 2000s. However, the strategy proposed to capture the justice system in El Salvador also included an element aimed at dismantling this type of effort and sowing distrust within the Supreme Court of Justice itself: to include its own members in the coup against the justice system. 

Indeed, among those appointed on May 1, 2021 were attorney Óscar Alberto López Jerez, who was a member of the Civil Chamber of the Supreme Court, and attorney Elsy Dueñas Lovos, who was a member of the Administrative Chamber. Both supported the unconstitutional selection process and accepted to be appointed in an irregular manner, without any legal or ethical resistance. The mere idea of having had the «enemy inside the house», and the uncertainty of the role they would have played in the planning of the coup to the justice system, sowed distrust and fear inside the Court, diluting any resistance initiative articulated from this same body.

4. The debut of a judicial capture strategy that revolves around the consent of the affected parties themselves

During the months following May 1, reforms were made to the judicial career law, and administrative measures were implemented to remove from their positions the most experienced judges and those with the greatest leadership within the institution –those who could have expressed the greatest resistance. These measures, already well known, involved forcing the retirement of those judges over 60 years of age or with more than 30 years of service from the judiciary. However, in order to neutralize subsequent complaints, both at the national level and from international organizations, a perverse strategy was used: to get those affected to voluntarily consent to the violation of their own rights.   

Indeed, prior to the entry into force of the reforms -which would affect one third of all judges in the country- the Supreme Court of Justice agreed to offer a bonus of 24 salaries to those who voluntarily resigned from their positions. How could these people claim their rights if they decided to voluntarily separate themselves from the judicial function and, moreover, benefit financially from it? 

Then, those who did not resign were offered the possibility of remaining in the judiciary, but to do so they had to voluntarily submit to an availability regime in which they would exercise the judicial function without any guarantee of stability, but rather subject to the «necessity of the service» determined by the Supreme Court. These individuals, more vulnerable than their younger peers, were forced to accept these conditions in order to keep their jobs. In a public hearing before the Inter-American Commission on Human Rights (IACHR), the State would make this strategy explicit by arguing that the judges who lost their positions with these reforms did so » because they did not accept» to stay in them under these conditions. Can this extortion of justice be any clearer?  

The point here is that this strategy debuted on the scene on May 1 when the legitimate magistrates of the Constitutional Chamber were pressured in various ways to resign their posts. These pressures, as reported in the media, included the surveillance of their homes with National Civil Police patrols. Almost all resigned. Coincidentally, the letters of resignation have almost identical wording, as if they had already been prepared in advance, ready for them to affix their signatures.

5. Affecting the right of citizens to have an effective remedy against the violation of their rights and freedoms

Finally, the events of May 1, 2021 also had an impact on the capacity of the Constitutional Chamber to control power and protect the human rights and fundamental freedoms of the country’s citizens. Even though this body continues to resolve the constitutional actions that are brought before it, an investigation of its first 100 days of operation revealed an anomalous decrease in the number of cases filed and an exponential increase in the number of dismissals (terminated processes), most of them liminal rejections. To this must be added a notorious lack of motivation with respect to rejection decisions, as documented in the same study. In a scenario such as the one created on May 1, 2021, the protection of rights may end up being conditioned to the non-affectation of governmental interests, which is even more worrisome in view of the progressive closure of civic spaces.  

May 1, 2021 will undoubtedly mark a before and after for justice and democracy in El Salvador, which must find a firm and energetic response from the international community. In challenging times for democracies around the world, it is important to raise our voices in the face of extremely serious attacks of this nature in the region. 

* Director of DPLF’s Judicial Independence Program.

Photo: Legislative Assembly of El Salvador