Sunday, December 02, 2012

UN expert issues warning on judicial independence in El Salvador

The Special Rapporteur of the United Nations Human Rights Council, Ms. Gabriela Knaul, recently delivered comments after spending a week in El Salvador studying its judicial system.  The Special Rapporteur is an independent legal expert who reports to the UN Human Rights Council and the UN General Assembly.   She was in El Salvador at the invitation of the Salvadoran government.

At the end of her trip, Ms Knaul expressed serious concern over the attacks on judicial independence demonstrated in last summer's constitutional crisis:

[T]he judiciary serves as an essential check on the other branches of the State, the legislative and the executive powers. It is therefore of extreme importance that the judicial system be free from political or any other pressure. In El Salvador, serious interferences from other branches of powers continue to exist, as the recent institutional crisis between the Constitutional Chamber (Sala de lo Constitucional) of the Supreme Court of Justice and the Legislative Assembly has shown. These threats to the institutional independence of the judiciary should be assessed and addressed as a matter of urgency.

The tension between the Legislative Assembly and the Sala de lo Constitucional, culminating in the sentence of the Constitutional Chamber to declare unconstitutional the appointments of Supreme Court magistrates and their alternates made in 2006 and 2012 by the Assembly, seriously undermined the independence of the judiciary and the principle of separation of powers. One of the most disturbing events that occurred during the institutional crisis was the unprecedented decision of the Assembly to bring a case against the Constitutional Chamber before the Central American Court of Justice. In addition to being questionable from a legal perspective, this decision showed a profound disrespect for the authority of the Constitutional Chamber, which is El Salvador’s highest legal authority for the interpretation of the Constitution.

In this regard, I would like to recall that existing international human rights standards require all governmental and other institutions to respect and observe the independence of the judiciary. Inappropriate or unwarranted interferences with the judicial process are inadmissible, and judicial decisions are not subject to external revision. Let me stress this point: decisions of judicial authorities cannot and should not be interpreted by other organs of the State; they must be respected and complied with.

Among the different attacks to the Constitutional Chamber, I have received information about efforts to undermine its decisions through allegations that the Chamber is exceeding its mandate; refusal of the Assembly to receive notification of the Court’s decisions; no publication of the sentences in the official Gazette; intimidations and attempts to remove magistrates of the Sala; and the creation of Special Commissions of the Legislative Assembly to assess the constitutionality of the sentences of the Constitutional Chamber. All these acts constitute, in my view, concrete examples of attacks to the independence of the judiciary.

As a result of this stress, she urged:

all State institutions to respect and implement the decisions of national courts and tribunals, including the decisions of the highest legal authority for the interpretation of the Constitution, the Sala de lo Constitucional. Attacks on the Constitutional Chamber and its members and refusal to comply with the Court’s decisions must cease. As I mentioned before, decisions of judicial authorities cannot and should not be interpreted by other organs of the State; they must be complied with.

Regarding the selection and appointment of the judges and magistrates, including the magistrates of the Supreme Court of Justice, I recommend that the Legislative Assembly consider reviewing the procedure provided for in the Constitution, so as to ensure that judges and magistrates are appointed solely on the basis of their qualification, and not on the basis of their actual or presumed proximity to political parties.

Ms. Knaul also expressed concern over the ongoing failure of the National Assembly to come to agreement on the selection of an Attorney General for the country.   That important position for the enforcement of the country's laws has been vacant for several months and stalled for partisan reasons with no possible candidate getting the necessary votes in the Assembly,


1 comment:

POLYCARPIO said...

Now that some time has elapsed from the tense days of the standoff when people became invested in very polarized views of the confrontation, I hope that the political class will be receptive to the U.N. Rapporteur's chiding. This rebuke is very striking. It reminds me of Dagoberto Gutiérrez's point that when entities of international hegemony, such as the U.S. government and I supposed the U.N. would fit the same category, make a public display of censuring the actions of Salvadoran governing institutions, it is a national humiliation which offends the right to self determination and sovereignty of the Salvadoran people. But Gutiérrez, who is an avowed Communist, was not saying this primarily as a criticism of the world powers who would make such an ostentatious show of public rebuke against El Salvador. Instead, Gutiérrez was saying that the Salvadoran leadership which provokes such rebukes, are doing a great disservice to the country because they are inviting the intervention of external powers who will come and squelch the exercise of self determination. The continuing failure to appoint an attorney general shows that, for the political class, this time after the constitutional crisis is just a reversion to business as usual and that little wisdom has been gleaned from this troubling episode.