El Salvador's Constitutional Court has shown itself to be independent, but the country still lacks a national consensus that the decisions of these independent judges are the ultimate authority.
• A version of this post ran on the author's blog. The views expressed are the author's own.
One year ago, I was writing about Decree 743, a law signed by President Mauricio Funes, that tried to change the rules for El Salvador's Constitutional Court to require unanimous decisions rather than majority decisions. After considerable public opposition, the legislature and president Funes backed down and repealed Decree 743. Now that same court has made a unanimous ruling which has precipitated another constitutional clash among El Salvador's branches of government. (El Salvador's Supreme Judicial Tribunal (TSJ) has different wings which rule on different areas of law like criminal law, constitutional law, etc. The " Sala de lo Constitucional" or Constitutional Court rules on whether laws passed by the National Assembly and acts of the executive branch are unconstitutional).
The Constitutional Court ruled that votes by the National Assembly to appoint judges to the TSJ in 2006 and 2012 were unconstitutional. The Court ruled that the constitution requires that one third of the court be elected every three years. The three year cycle matches up to the three year cycle on which deputies to the National Assembly are elected. The Court decided that for every three year term of the National Assembly, that group of legislators can only vote once. In both 2006 and 2012, the legislature had voted twice to change the make-up of the TSJ's judges. In this way, citizens' votes are taken into consideration (theoretically, at least) because they can alter the make-up of the National Assembly and hence alter the votes for judges of the TSJ.
The Court ordered the National Assembly to take up a new election of the two-thirds of judges who had been named by the legislature in 2006 and 2012. In the meantime, the work for the TSJ has ground to a halt as the judges whose elections have been challenged, are declining to sign any more orders. Now the National Assembly is refusing to go along with the Constitutional Court's rulings. The National Assembly instead is consulting with legal experts, and is talking about asking the Central America Court of Justice to rule on this conflict between El Salvador's legislative and judicial branches. Like the dispute in 2011, this is another test of which branch of government in El Salvador is supreme. Having the rule of law be respected requires a national consensus that the highest court in the country has the final say and requires a court with judicial independence. The Constitutional Court has shown itself to be independent, but El Salvador still lacks the national consensus that the decisions of these independent judges are the ultimate authority.