Salvadoran judges ousted seek redress in international tribunal

In El Salvador, the populist president, Nayib Bukele, is dismissing judges by the dozen, including the five members of the Constitutional Court. He says he’s trying to root out corruption. Critics fear he seeks to remove democratic constraints from his autocratic regime.

But now that the highest courts are in the hands of President Bukele’s allies, there is nothing the ousted judges can do but seek international justice. They did so, appealing to the Inter-American Commission on Human Rights (IACHR) and its associated tribunal.

Why we wrote this

When an authoritarian ruler flouts the law, who can judges turn to? The judges of the Constitutional Court of El Salvador, unlawfully dismissed en masse, turn to international law.

This tribunal has reinstated Latin American judges before, but not often, and only after years of investigation. As he rules on the case of El Salvador, the country’s democracy could be fatally injured, worry activists in San Salvador.

International pressure is mounting: the US government this month imposed sanctions on new judges who replaced illegally dismissed Constitutional Court judges. But the IACHR “must work quickly”, declares a human rights defender, because Mr. Bukele “is on the way to a dictatorship”.

San Salvador, Salvador

The five legitimate judges of the Constitutional Court of El Salvador, among the last bastions of democracy in their country, were in embarrassment.

The judges were unlawfully sacked last May by a legislature loyal to populist President Nayib Bukele, so their normal remedy for redress would be… the Constitutional Court. But now that the Legislature had filled the bench with pro-government judges, they could hardly expect a fair hearing.

Thus, in an unusual gesture, the ousted judges appeal to international justice, in the form of the Inter-American Commission on Human Rights (IACHR). It’s a long way, but a lot is hanging on to their movement, says Katya Salazar, executive director of the Latin America-focused Due Process of Law Foundation, based in Washington, DC.

Why we wrote this

When an authoritarian ruler flouts the law, who can judges turn to? The judges of the Constitutional Court of El Salvador, unlawfully dismissed en masse, turn to international law.

President Bukele is “on the road to dictatorship. He has already broken democratic rules, ”warns Ms. Salazar. The IACHR “must work quickly”.

Judicial independence is under attack by authoritarian rulers across Latin America. In recent months, Mexican President Andrés Manuel López Obrador has attempted (but failed) to extend the tenure of a Supreme Court judge in defiance of the country’s constitution, Guatemala’s attorney general has most dismissed The country’s top anti-corruption prosecutor and Brazilian President Jair Bolsonaro has threatened to stop complying with Supreme Court rulings if one of its judges does not resign.

In El Salvador, the new judges of the Constitutional Court are already transforming the political landscape. Hours after their predecessors filed their petition with the IACHR, the new tribunal ruled that President Bukele – Latin America’s first millennial president – could run for two consecutive terms, ignoring the explicit prohibition of such maneuver in the constitution.

Last weekend, the Supreme Court appointed nearly 100 new justices in a controversial judicial reform that forces magistrates to retire at age 60 or after 30 years of service and allows the Supreme Court of 15 judges to arbitrarily transfer judges to new jurisdictions.

Salvadoran President Nayib Bukele delivers his annual address to the nation before Congress on June 1, 2021. He has alarmed pro-democracy activists with his aggression against the judiciary and hints that he could stand for re-election despite a ban constitutional.

“We hope that the inter-American system will respond quickly … because of the gravity that this represents, not only for the judges, but for the country and our democracy,” said Salvadoran judge Juan Antonio Durán, one of the few judges in attendance. exercise in having publicly criticized the Bukele government.

He was transferred from the capital, San Salvador, to a provincial court on September 26, in what he sees as reprisals against him.

The IACHR and its associated tribunal have succeeded in restoring judges in the past, such as in Honduras in 2015. But the judgment was not handed down until six years after the judges were unlawfully removed from their posts following a military coup.

“By the time the case is decided, the political, institutional and democratic situation may be completely different,” acknowledges Ariel Dulitzky, former deputy executive secretary of the IACHR who is now director of the Human Rights Clinic at the University of Texas. .

Thus, Mr. Durán and his fellow judges are looking for other ways to put pressure on the Bukele administration, including appeals to the American embassy.

Earlier this month, the US State Department added illegally appointed Salvadoran Constitutional Court judges to Engel’s list of corrupt and undemocratic Central American officials. The list is named after Eliot Engel, the former congressman who drafted legislation providing for travel bans and other sanctions, such as an asset freeze, for those listed.

“All efforts are important,” says Durán. “We took the legal route, both international and national, the diplomatic route, the political route and on the streets.”

José Cabezas / Reuters / File

People hold up a banner that reads “Bukele’s coup plotter” as they protest against the impeachment of Constitutional Court judges and the Attorney General by the Salvadoran Congress, in San Salvador, El Salvador, on May 2, 2021.

As judges and civil society activists in El Salvador pressure the Salvadoran government to restore democratic institutions, the case of the IACHR can bolster their efforts, says Dulitzky. Each step – hearings, country visits and reports – requires sensitization from judges and attracts renewed media attention, which can help garner support. Requiring the state to justify its position can sometimes lead to settlements and negotiations. An international court case can also reveal loopholes in governments and encourage dissidents to come forward.

“The process of the inter-American system is as important as the outcome,” says Dulitzky.

Meanwhile, President Bukele and his New Ideas Party continue to adopt new reforms. They argue that their changes to the justice system will rid the country of corruption, a burning issue for Salvadorans who have lost faith in the country’s two traditional parties after high-profile corruption scandals.

According to May 2021 survey, nearly 80% of Salvadorans said they believed Mr Bukele was doing a good job after two years in office.

“Whoever has no money to pay a judge pays with a prison sentence,” complains Amadeo Lopez, a rural teacher and Bukele supporter. “What this president does is better than what others have done. “

Mr Bukele has become increasingly defensive to criticism since taking office in June 2019, and often uses his Twitter account to voice his grievances.

When US Secretary of State Antony Blinken and Vice President Kamala Harris condemned the dismissal of the five Constitutional Court justices, he tweeted a message to “the international community” saying that “we are cleaning our house … and what no it’s none of your business ”.

This attitude does not bode well for respect for any decision of the IACHR, which is largely based on a government’s willingness to adhere to its international human rights commitments.

“The panorama is bleak,” says Astrid Valencia, Central America researcher at Amnesty International. “But that shouldn’t prevent the work from exposing, documenting and attracting the attention of key international players.”

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