Commissioners: Margarette May Macaulay, Esmeralda Arosemena de Troitiño, and Joel Hernández García
State: El Salvador
Topic: Judicial Independence and the selection process of the Attorney General in El Salvador
As part of the Northern Triangle of Central America, El Salvador has been caught in the crossfire of regional tensions, instability, and crosscutting political tensions. More than ever, access to justice and the rule of law are vital to the stability and growth of the country. In a country where stories of corruption, impunity, and inequity cut deep, choosing a qualified, independent, and just Attorney General is one of the most important steps in ensuring El Salvador’s future.
No law regulates how the attorney general is chosen, and the sub-commission chosen by congress has enormous discretion in their choice of attorney general. The most recent Attorney General, Douglas Melendez, was rigorous in his efforts against corruption, going as far as jailing his predecessor, Luis Martinez, and former president Antonio Saca. As Melendez’s three-year term comes to an end, El Salvador is seeking candidates for Attorney General and have thirty-three aspiring Attorney General to choose from.
On December 6th, at the Inter-American Commission on Human Rights, representatives from Civil Society (“Petitioners”) and the state of El Salvador (“Respondents” or “El Salvador”) came together to discuss their concerns for the process of choosing a competent Attorney General and ensuring much-needed Judicial Independence.
First, Petitioners began by discussing their grievances. They noted that there was no regulation in the process and that the political commission of Congress should approve new standards for regulation. They noted how the process of choosing a new attorney general went forward without any publicized rules or methodology. Petitioners next focused on the impact of the office of the attorney general on the right to justice for the victims of grave human rights violations committed during the civil war. In the years following the Peace Accords and Truth Commission, many obstacles remained in the way of the victims of human rights violations, and past Attorney Generals remained passive, and have encouraged victims to abandon the legal processes. After the striking down of the Law of General Amnesty for the Consolidation of Peace in 2016, hope for victims for reparations opened up and, the role of the Attorney General has grown even more important. Petitioners continued by explaining why the Attorney General selection is so important. They highlighted areas that are especially vulnerable including the human rights of woman, the fight against corruption, and a rise in police brutality.
The Civil Society representatives noted that even after the imprisonment of ex-Attorney General Luis Martinez, the methodology for choosing future officials has not changed. They also noted that the interviews for candidates were public and televised, but there was no opportunity for civil society to participate and that very few documents regarding the selection were made public.
The Commissioners spoke at the end. Esmeralda Arosemena de Troitiño began by focusing on the importance of access to due process, quick, just, and accessible trials, and equitable access to justice. Noting the great challenge of meeting the heightened standard of certainty needed with regards to who filled the position, she asked the state about the process for choosing the attorney general and the involvement of the Legislative Assembly in doing so.
Next Joel Hernández García asked what the qualities of a suitable attorney general were, and how the state could increase protection of justice for the people. He noted that the Commission has an interest in ensuring the selection of officials who will ensure justice and the need for an increased role of Civil Society’s oversight. He next inquired whether there was room at the current stage of the selection process for the participation of civil society. He also asked the representatives of El Salvador to relay the concerns of the Commission to the Legislative Assembly to ensure an independent, competent, and just attorney general is chosen.
Next Edison Lanza, reemphasized the need for transparency and access to information about the process of selecting someone for a position as powerful as the Attorney General. He echoed the need for the publication of criteria and the methodology used in the selection of the attorney general.
Finally, Margarette May Macaulay highlighted that the attorney general was the most important person with respect to access to justice in El Salvador. She asked about the involvement of civil society in creating and elaborating the mechanism to choose the attorney general, and whether they were given the final documents outlining the mechanism. She stated that there should be a participatory process. President Macaulay also noted that she was extremely nervous about the role of the legislature choosing the attorney general, and that an autonomous, nonpartisan, representative body should choose the official.
President Macaulay also focused on efforts to recruit women as candidates for attorney general. She noted that the state should have been more proactive in seeking female candidates. Lastly, President Macaulay said that the Commission would be interested to participate and have oversight over the remaining process of selection.
El Salvador extended an invitation to the Commission to collaborate in the same way the Commission collaborated for transitional justice initiatives and President Macaulay accepted. El Salvador also stated that the Legislative Assembly participated in the selection of other judicial officials. The Legislative Assembly has considerable oversight over the specific sub commission that conducted interviews. While there are no specific criteria in the constitution, they use the standards previously used. Lastly, El Salvador stated they would communicate the concerns of civil society and the Commission to the Legislative Assembly.
Overall, the hearing ended with promise of collaboration from the state of El Salvador with the Commission and Civil Society in choosing an independent, just, and suitable attorney general for El Salvador.