The parties versus the court

El Salvador's Constitutional Court, which rules on whether laws and executive actions violate the country's constitution, has emerged as a champion of the voting rights of individuals while paring back some of the powers of political party leadership.

In July 2010, the Constitutional Court ruled that legislative elections had to permit independent candidates and not simply involve closed slates of names chosen by political party leaders.

The Constitutional Court has ruled that two political parties, the PCN and PDC, no longer can run in elections, because they failed to achieve in the 2004 elections the minimum number of votes necessary to stay alive. This ruling set aside as a nullity a political accord reached among El Salvador's politicians which had allowed those parties to continue fielding candidates in subsequent elections.  As a consequence, on July 1, the Supreme Electoral Tribunal dissolved the PCN and PDC.  (Or did it? -- last week it appeared that the TSE's ruling may not have had the necessary signatures to become effective).

These rulings of the Constitutional Court on election issues have come with the votes of four of the five magistrates who make up the Court. The judge who has not joined the four judge rulings is Néstor Castaneda, the longest-serving member of the Court.

To reign in the power of the Constitutional Court, as it prepared to issue more rulings in the electoral area, El Salvador's political parties arranged to pass Decree 743 in the National Assembly. That decree requires unanimity among the five magistrates on the bench to approve a decision. Such consensus is rare and would essentially prohibit the court from producing new decisions. The decree essentially gives each magistrate a veto power over any ruling the court might be prepared to render.

The four magistrates then ruled that Decree 743 was void and would not be followed. In a subsequent ruling, the same four again attacked party prerogatives when they struck down a provision of the electoral laws which gave only the parties the right to challenge election results. The four magistrate majority ruled that individual citizens, as well as party officials, must have the right to impugn the tallies of votes.

The head of the official government journal, however, refused to publish this latest ruling of the Constitutional Court. He declared that the ruling was not effective because it violated Decree 743 in not having been signed by all five magistrates. President Funes declared himself to be a supporter of that position, yet told reporters that he did not believe there was any institutional crisis in the operating of El Salvador's government.

Although the FMLN did not vote for Decree 743, the party clearly feels threatened by the Court's rulings in favor of individual citizen voting rights over the control by party bosses. FMLN party secretary Medardo González attacked the Constitutional Court and its rulings, declaring that the Court had no right to change the constitution. Accusing the Court of pursuing a right-wing agenda, the FMLN official brought hundreds of party faithful to protest in front of the offices of the Supreme Court.

For their part, the four magistrates have replied that they did not feel threatened by the FMLN, and that they had no partisan agenda but simply ruled in a non-partisan fashion on the cases that were brought to them by Salvadoran citizens.

A proposal to remove the four magistrates was introduced but later set aside in the National Assembly.

The UN Special Reporter for Judicial Independence, Gabriela Knaul, criticized Decree 743 as an improper attack on judicial independence in the country. She called on El Salvador to repeal the infamous decree, and to work hard to strengthen the principle of judicial independence.

Finally, in an article in Jurist, researchers from FUSADES warned:

These developments present a grave challenge to El Salvador's democracy, unprecedented since the Peace Accords of 1992. Civil society is behind the "Fantastic Four" but it is not clear that the political class is willing to accept an independent Judiciary that will limit its power. El Salvador's political analysts have coined the term "partydocracy" to describe the system that has been in place since the Accords. Let us hope that this crisis is the interlude to a consolidation of a citizen's democracy.