On 31 August 2021, El Salvador’s Legislative Assembly passed two bills that permit the dismissal of all judges and prosecutors that are 60 years or older. Some estimates suggest that over 200 judges out of a total of 700 may be negatively impacted by the enactment of these laws. While President Nayib Bukele has stated that the legislations are aimed at eradicating the corruption that is plaguing the judicial system, critics have pointed that this is yet another instance of the President using the majority support he enjoys to curtail the freedom of the independent institutions of the country’s democratic system. For instance, on 1 May, the Legislative Assembly unlawfully ousted all the judges of the Supreme Court Constitutional Chamber along with the Attorney General. The move has been condemned by many as unconstitutional and as undermining the ideals of a democratic system, which are based on the pillars of the rule of law.

ISSUES OF CONCERN

Interestingly, the two pieces of legislation which have been passed under the guise of removing corrupt judges and prosecutors do not actually contain any reference to the issue of corruption. It is also unclear how the removal of these officials would aid in the elimination of corruption in the absence of an improved framework for recruiting them. In passing these laws, the ruling party has bypassed the due process of law which has raised severe concerns over the functioning of the country’s democratic system. As per the Constitution of El Salvador, any reform with respect to the judicial branches of the government can only be initiated by the Supreme Court. Additionally, the laws are in violation of article 186 of the Constitution which guarantees job stability to Justices of the Peace, First Instance judges, and Second Instance Chamber Magistrates.

The move is seen by many activists, including Human Rights Watch, as the current regime’s attempt at curtailing the independence of the judiciary and establishing a pro-government judicial system which can be controlled. The laws would pave the way for the appointment of judges and officials who would work to the guidelines of the government. One of the provisions of the legislation endows power on the Supreme Court to extend the term of the judges who are 60 years of age, on the grounds of “necessity or speciality”. Similarly, the Attorney General is empowered to extend the term of the prosecutors based on “reasons of convenience”or “due to the complexity or specialty of their services”. The ambiguous nature of these provisions makes them susceptible to misuse by the ruling party, as they can potentially reward the judges who work in favour of the government whilst leading to the dismissal of those with an independent opinion. 

Moreover, the laws also show an alarming trend of the ruling party aiming to consolidate all the political power. As previously mentioned, the ruling party unjustifiably dismissed all the judges of the Constitutional chamber of the Supreme Court and the Attorney General on 1 May, and later appointed people of its own choice to these posts after winning a majority in the Legislative Assembly. In late June, the ruling party appointed five new Supreme Court judges without seeking open deliberations or ensuring transparency in the process.

BREACH OF INTERNATIONAL STANDARDS

The recent measures taken by the government of El Salvador are not only arbitrary in nature, but are also a flagrant violation of international human rights norms and standards. The United Nations Basic Principles on the Independence of the Judiciary, inter alia, postulates that it is the duty of all governmental and other institutions of a member state to observe and respect the independence of the judiciary. Furthermore, it also states that judges can be dismissed only “for reasons of incapacity or behaviour that renders them unfit to discharge their duties”. El Salvador is also a party to the International Covenant on Civil and Political Rights, which under article 14 provides that everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The country’s adherence to this treaty means that it should take appropriate measures to establish a judicial system which is free from political decision making. Similarly, international instruments such as the Universal Charter of the Judge and Statute of the Iberoamerican Judge also lay down the principle of a judicial system that is free from any constraints and orders imposed by the other branches of the government. Moreover, they provide for the security of tenure of the judges so that they can function independently without the fear of being removed due to the decisions they render.

It is abundantly clear from the actions of the ruling party that it is violating these norms and moving towards an authoritarian regime by directly attacking judicial independence, in violation of the basic tenets of a democratic system. It is crucial to understand that the independence of the judicial system is vital in ensuring the transparency and effective functioning of a democratic government. The absence of an independent judicial system would inevitably result in the prevalence of corrupt practices while also negatively affecting the rights of the citizens. As of now, it can only be hoped that the government of El Salvador recognises its obligations under both the Constitution and the international treaties it is a party to, and ensures that the rule of law remains paramount in the country as weakening it would inevitably lead to the impairment of the democratic order.

Komal Ray is a student at National Law Institute University, Bhopal, India pursuing the undergraduate course of B.A. LL.B(Hons.). Her areas of interest include International Humanitarian Law, International Investment Law and Competition Law.

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