Friday, June 22, 2012

Central American Court of Justice to hear Salvadoran constitutional conflict

The Central American Court of Justice, based in Managua, has now agreed to hear the dispute between El Salvador's National Assembly and its Supreme Judicial Court.   The Constitutional Court in El Salvador had declared invalid actions by the National Assembly to elect justices to the court in 2006 and 2012, and the National Assembly rejects the court's authority to do so.

I am unaware of another instance of a regional court like this agreeing to rule on an internal constituional dispute of a member country.   Can anyone point me to a similar situation?


7 comments:

POLYCARPIO said...

Nearest thing I can think of is something like the UN asking the International Court of Justice for an advisory opinion of whether Kosovo's declaration of independence violated international law. It's not nearly the same thing, but it shows the trend toward judicial globalization, or "international judicial dialogue," or however the trend is called. Actually, the first thing I thought of was the fact that Central America used to be a Republic, and therefore the Central American court may be argued to have vestigial oversight over matters like this. But, then even the U.S. Supreme Court's original jurisdiction does not extend to purely intrastate constitutional crises. So, no...

Mike said...

From what I understand the Caribbean Court of Justice does rule on some member states' constitutional issues.

Wayne said...

CCJ is the acronym for both the Caribbean Court of Justice as well as the Central American Court of Justice, but they are separate and not related. This dispute is before the Central American Court of Justice. Many years ago, El Salvador signed the treaty that re-created this court and agreed to submit to its jurisdiction. To date, it has not withdrawn. It thus remains as a legal obligation to comply with the terms and conditions conferred and imposed by this treaty. To do otherwise would be foolish.

Today's news that Guillermo Avila Quehl now states that the Sala de lo Constitucional de la Corte Suprema de Justicia de El Salvador can (sua sponte??) rule that any ruling from the CCJ potentially adverse to it is essentially inapplicable and unenforceable as violative of El Salvador's sovereignty, ignores and makes a mockery of established norms of international law that a nation, by signing onto and ratifying such a treaty, does in fact cede a modicum of its sovereignty, to the extent as the treaty or agreement sets forth.

Should El Salvador resort to such a contorted and ill-conceived response to the CCJ, it would essentially become an international pariah, as no other nation would trust it to honor any international agreement. El Salvador's already fragile economy and rampant poverty would suffer greatly, as foreign investment would flee, no rational nation or company willing to risk investing in a country unwilling to responsibly honor its commitments beyond its borders.

Sr. Avila Quehl would do well to reconsider his irrational position on this issue.

POLYCARPIO said...

Wayne, why do you think that any ruling on this matter by the Central American Court of Justice would be binding on the Salvadoran court? Article 22 to the Statute of the Central American Court of Justice spells out the powers of the Court to include binding authority on matters relating to SICA, but it can only act as an arbitration panel where the parties (presumably, all parties) agree to be bound, or otherwise offer only advisory opinions where invited by the national supreme court.

Wayne said...

Polycarpio, one has to look a little further on in Article 22. It goes on to say, in relevant part, that the Central American Court of Justice has the power to "...resolve disputes that may arise among and between the different branches of government within a SICA country or whenever a national court’s decision is ignored by another institutional body within that country..." Key language is **resolve**. There is no advisory quality to this provision, and certainly, the party presenting the legal question to the court is not required to obtain the permission of the other party in order to bring the question, unlike arbitration.

Rulings from the CCJ in this regard, by virtue of El Salvador's ratification of the protocol and statute, are thus binding on the parties.

Underlying the whole affair, of course, is a fundamental dispute over the separation of powers, and the Sala de lo Constitucional in this case (1) telling the Legislature to do something that clearly is not in the text of the Constitution but yet which the Sala asserts is, and (2) a large part of the Legislature, although ready willing and able to reelect the 2006 magistrates, opposed to doing so on the grounds that once that door is opened, it will not be able to close it, leaving it vulnerable to attack by the CSJ on really any front.

Wayne said...

Sorry, meant to cite to the relevant provision. Article 22, paragraph f.

POLYCARPIO said...

Wayne, thank you for citing to the provision and thanks to Tim for posting the link in Spanish. I was reading an English summary of Art. 22 which did not summarize 22f. In the United States, I doubt that a similar interpretation would hold up. That is, I think most scholars would think that Congress lacks the power to sign a treaty that rearranges the Supreme Court's jurisdiction in a way that is directly contrary to what the U.S. Constitution specifies. The way the dispute would presumably play out is that the Supreme Court would invalidate the treaty, or at least the one provision relating to the Constitution, and that would be the end of the question.