Situation of Judicial Independence in El Salvador

Petitioners and the Government of El Salvador before the Inter-American Commission on Human Rights

Commissioners: Tracy Robinson, Rosa Maria Ortiz, Dinah Shelton, Rose-Marie Antoine, E. Abi Mershed

Petitioners: Fundación de Estudios para la Aplicación del Derecho and Mirte Postema,  Fundación para el Debido Proceso Legal

State: El Salvador

Topics: Rule of Law, Independence of the Judiciary

In June of 2011, the Salvadoran Legislative Assembly approved Decree 743, which would have required the Salvadoran Supreme Court to make decisions by unanimous consensus. There was a public outcry that this would undermine the power of the Court and that it was an attack on judicial independence as well as the separation of powers in El Salvador. There was special concern due to the important role of judicial independence in fighting corruption, impunity, and the high levels of crime and violence that currently afflict El Salvador. After much national and international debate, Decree 743 was repealed; however, it raised concerns about maintaining and improving judicial independence in El Salvador.

On March 27th, 2012 the Inter-American Commission on Human Rights (“the Commission”) held a hearing on the topic of the situation of judicial independence in El Salvador. The commissioners presiding over the hearing were Dinah Shelton, Tracy Robinson, Rose-Marie Belle Antoine and Rosa María Ortiz, in addition to Deputy Executive Secretary Elizabeth Abi-Mershed. The Petitioners included Abraham Abrego from Fundación de Estudios para la Aplicación del Derecho and Mirte Postema and Leonor Arteaga from Fundación para el Debido Proceso Legal. The delegation from the State of El Salvador (“the State”) included the Ambassador from El Salvador to the OAS, Luis Menéndez, and Gloria Martinez from the Ministry of Foreign Affairs.

The Petitioners began by expressing that while there have been great advancements in judicial independence since the 1992 Peace Accords, there are increasing attacks from the legislative and executive branches on the independence of the judiciary, especially when it comes to decisions affecting them. According to Petitioners, the passing of Decree 743 evidenced this and it was only repealed in response to an international outcry. These types of attacks on the independence of the judiciary, the Petitioners say, are also carried out through disciplinary actions against judges who make unfavorable decisions. One pressing issue according the Petitioners is that there are inadequate measures to protect the impartiality of selecting Supreme Court justices. The Petitioners provided that the four main deficiencies in Justice selection are a lack of: detailed prerequisites, a definition of how they will be evaluated, a clear and standardized process for selection, and transparency.

The State replied that they were willing to enter into a dialogue with the competent authorities as part of their new policy of commitment to the Inter-American system. They continued that independence is important for the judiciary and for providing procedural rights. The State explained that independence consolidates a democratic rule of law and because of this, an independent judiciary is a pillar of democratic society. The State noted that its assurance to independence was provided for in the Peace Agreement that stipulated fundamental changes to the judiciary system in El Salvador. They argued that justice is going through a new era, demonstrated by the repeal of Decree 743. Moreover, the State argued, the legislature passed Decree 798, putting forth new judicial reform. Ms. Martinez gave the example of recent budget changes, which require 6% of the budget to go to the judiciary branch, and allow the Supreme Court to draft its own budget on salaries and expenditures before it goes to the legislature.

Commissioner Ortiz asked the Petitioners how exactly to increase the legitimacy of the Supreme Court Justice selection process. Commissioner Antoine followed with a question regarding whether there was a general consensus about the reforms in Decree 798 and whether they are in accord with international best practices. The Petitioners said that in order to support judicial independence in justice selection it is necessary to create objective mechanisms and criteria based on the professional capability of the justice. The Petitioners also noted the urgency of the issue because El Salvador is currently undergoing Justice selection and it is a valuable opportunity to make changes that do not require legislative change, but a willingness to adopt measures for the final stage of the selection. The Petitioners replied that they thought the current legislation does not satisfy the Inter-American system standards. The State responded that they were open to considering all of the suggestions from the Petitioners on the transparency of the judiciary, and that they too were also concerned with the flaws in the selection process. Commissioner Robinson ended the hearing on a positive note by expressing hope that both sides seemed willing to continue a dialogue.

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