Wednesday, September 04, 2013

El Salvador's Supreme Court -- prudence and discretion needed

There is currently an unseemly dispute going on between two divisions of El Salvador's Supreme Court.   It is a dispute which undermines respect for the Court as an institution and for principles of judicial independence and the rule of law.

The Constitutional Chamber of the Court has agreed to hear a petition challenging the election of the chief of the Supreme Court, Salomón Padilla, who was elected when last year's constitutional crisis was resolved.  The Constitutional Chamber has been the activist part of the court, and has been a particular thorn in the side of the political parties by requiring that elections allow voters to vote for individuals rather than parties, by requiring that independent candidates be permitted, by finding that the minister of public security cannot be an ex-general and more.

Meanwhile the Administrative Litigation Chamber ("Sala de lo Contencioso-Administrativo") has agreed to rule on a petition challenging the manner in which the justices of the Constitutional Chamber were elected by the National Assembly.   The Constitutional Chamber responded by issuing a decree stating that the Administrative Litigation Chamber has no power to hear such a petition.  Most recently that judges in the Administrative Litigation Chamber issued a new decree finding that the decree of the Constitutional Chamber is ineffective and a piece of "judicial paranoia."

As in last year's crisis, US Ambassador to El Salvador, Mari Carmen Aponte, has made public statements about the crisis indicating that the competing divisions of the Court need to find a way to resolve the conflict.    Aponte has acknowledged that this dispute could be a factor in whether a second round of US aid from the Millennium Challenge Corporation is forthcoming this month.  In such statements, she walks a fine line of advocating for good governance and being seen as interfering in an internal Salvadoran matter.  President Funes has stated that he does not believe the conflict in the court puts the Millennium funding at risk.

In my view, for the good of the country and to help build respect for the entire Supreme Court's decisions going forward, both Chambers ought to step back.   The Constitutional Chamber should not rule on the petition against the manner in which the chief of the Supreme Court, Salomón Padilla, was elected. The Administrative Litigation Chamber should not rule on the attempt to remove the justices of the Constitutional Chamber.  

Sometimes the best exercise of judicial power is not to exercise that power at all.   This is particularly true when the questions have heavy political overtones and any decision reached by the court will be accused of being partisan.    As the dispute between the National Assembly and the Constitutional Chamber showed last year, El Salvador is not yet in a place where all actors recognize the Court as the final arbiter of legal and constitutional disputes.   Getting to that consensus requires the Court, and its warring Chambers, to show that they can not only defend their judicial fiefdoms, but that they will act (or not act) with prudence, discretion, and with the aim of guaranteeing the entire Court's credibility in the long term.






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