El Salvador: demolishing judicial independence

El Salvador's president, Nayib Bukele, delivers a speech on July 19.OSCAR RIVERA / AFP

The twentieth anniversary of the adoption of the Inter-American Democratic Charter, a Peruvian initiative, a powerful continental tool for the defense and protection of democracy, is about to be fulfilled - September 11 -.

But this very week, democracy has again been attacked by the appetite for absolute power and the demolition of a justice independent of that power.

The victim: society and democracy in El Salvador.

What has been happening there, under the explicit impulse of its president Nayib Bukele, is representative of dangerous authoritarian tendencies in development that are already underway in different corners of the planet.

The current authoritarian wave tends to put its first trick attacking judicial independence, thus healing itself in health

More information

• Nayib Bukele retires a third of El Salvador's 690 judges

• An investigation sheds new evidence of Bukele's negotiation with El Salvador's gangs

As the anniversary of the Democratic Charter approaches, some authoritarian currents and temptations, however, advance in a direction contrary to its precepts. A dangerous authoritarian wave is advancing not only in Latin America but in different corners of the planet. That, with few exceptions, usually takes its initial steps and marks one of its founding milestones in the subjugation of judicial independence. With a clear objective: to demolish institutional spaces of control or balance of powers.

The pattern repeats. In Kaczyński's Poland, Duterte's Philippines or Lukashenko's Belarus, to mention just three examples, the format is similar: arbitrarily remove magistrates or magistrates, starting with the high courts, and implement systems for the appointment and promotion of judges and prosecutors. politically manipulable. And from then on, have an easier way to exercise power without the uncomfortable control of independent judges and prosecutors.

Four months ago in El Salvador judicial independence was already attacked with arbitrary dismissal, without prior process or any right to defense, both from the Constitutional Chamber of the Supreme Court - equivalent to the Constitutional Court - and from the Attorney General. And he had the substitutes appointed, immediately and on the run, without any competition or transparency, as dictators do. All this, of course, in confrontation with international standards and principles in force for decades and with the Salvadoran constitutional norm on the independence of magistrates and prosecutors.

All of this was just a modest first step.

The big one has been running starting this Tuesday, August 31, by the parliamentary majority, in substantive continuity with the May attack on the constitutional court and the attorney general's office.

The bills for the judicial career and the organic law of the prosecution are two pieces - approved at the race and without further discussion - that are basically aimed at continuing to overwhelm the independence of judges and prosecutors that the Salvadoran state is obliged to do. to worth.

There are at least four components that violate fundamental international standards (including the UN Basic Principles on the Independence of the Judiciary) and the Salvadoran Constitution itself.

First, that the Constitution itself gives the Supreme Court exclusivity in initiatives of law on “matters related to the Judicial Organ” (art.133.3). The mere fact that the Executive - or its parliamentary majority - has usurped that function has been understood as an index, by itself, of the violation of judicial independence.

Second, the age limit in judicial positions is lowered to 60 years or 30 years of career performance. When all over the world the retirement ages tend to increase, having increased life expectancies, this measure is only explained by the objective of getting rid of many judges or prosecutors that the political power considers distant or “alien”. Another country that took a similar step, to get rid of some uncomfortable magistrates in the Supreme Court, was Poland, to facilitate the political control of justice by the Government.

Thus, at least 156 members of the judicial career are terminated in El Salvador, most of them chamber magistrates or judges with extensive experience, including several judges in charge of emblematic cases. For example, Jorge Guzmán, the judge in charge of the criminal proceedings for the massacre by the Army in El Mozote, would be dismissed as he is over 60 years old. Apparently he became uncomfortable because in his investigation, among other things, he asked the prosecution to determine if there was a crime when the military high command prevented him from accessing his files.

Third, the essential principle of the immobility of those who hold a judicial position is affected. A principle that does not make them untouchable, by the way, if there is any fault that warrants a sanction, but only after following due process. With the modifications approved to the judicial career, carte blanche is given to unexpected transfers to fill vacancies without consultation or coordination with the judge concerned. Under these conditions, arbitrary transfers can be a form of disguised sanction.

Fourth, at the same lightning speed, almost without debate or discussion in commissions of the legislative assembly, the organic law of the Attorney General's Office was also changed. This modification gives the attorney general the all-encompassing power to transfer, "temporarily or permanently" prosecutors; this includes the power to transfer prosecutors with administrative investigations, some of which have recently been opened by the attorney general imposed with the slap in May. Some believe that the prosecutors in charge of investigations into the alleged negotiations between Bukele and the gangs could be the first to be "transferred."

The law also lowers the age of exercise of the function to 60 years. There will be many vacancies with the dismissals which, according to this law, will be covered no less than by decision of the attorney general. None other than that prosecutor who was imposed in the blitzkrieg in May when the Constitutional Chamber and the attorney general were arbitrarily removed from office at that time.

Synthesis is that, in a tight and perhaps incomplete way to benefit the available space, but that summarizes a dangerous project in full execution of the liquidation of the counterweights of powers.

I am sure it will be a matter of attention and action by the competent international bodies for the defense of democracy and judicial independence, as I have been doing myself as the UN Special Rapporteur on judicial independence.

Good time, too, for the countries of America to take into account and consider making use of the Inter-American Democratic Charter.

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