Why Central America Needs More Transparency and Public Scrutiny Over Congressional Appointments

Dennis Emilio Hércules

Central American Technological University

Democracies require strong democratic institutions. Healthy democratic institutions rely, in good measure, on public trust. This can be understood as citizens’ conviction that their democratic institutions will act on their behalf and according to their expectations, complying with the law, providing legal certainty, and adhering to the principles of transparency. By definition, democracies are a form of government in which power ultimately corresponds to the people. How could a democratic form of government efficiently work when its citizens distrust their executive, legislative, judicial, and electoral authorities, political parties, and elected officials? 

The modern notion of democracy, particularly representative democracy, has entered a crisis of representation.  There are many who believe that democratic institutions, political parties and elected officials have continuously failed to adequately act on their behalf. In order to counter this discontent, many democracies have moved from merely representative democracies to participatory democracies. These participatory democracies have granted their citizens multiple mechanisms to exercise control over the actions of their governments, participate in decision-making processes, and increase accountability and transparency. Amongst these mechanisms found in participatory democracies we can count referenda, plebiscites and popular legislative initiatives. However, transparency and public scrutiny are also innovative, and successful, ways in which both representative and participatory democracies can increase public trust and therefore build (or rebuild) their democratic institutions and rule of law. 

After a long period of crippling unrest and civil wars, Central America found a period of stability. However, over the last decade, the region has been facing serious setbacks to both rule of law and democracy, as the restraints on power, checks and balances, and accountability are fading away. This general erosion of democracy, rule of law, and transparency is noted in multiple reports, such as the Rule of Law Index, the Democracy Index and the Corruption Perception index. 

Although the majority of such setbacks can be directly traced back to executive power in the form of hyper-presidentialism and even authoritarianism, many times the origin can also be found in congressional appointments. Time and time again, politicians seek to gain control over the judiciary and electoral authorities, eliminating any possibilities of checks and balances by manipulating these congressional appointments in their favor. As well, these actions lead to more distrust from the people towards the actions taken by their government and their institutions and decreases the public’s faith in democracy. 

Across the Central American region, legislative powers play a crucial role in the proper functioning of the state, not only with regards to the approval of legislation, but also, in the appointments of several high-ranking state officials. These powers normally include the election of Supreme Court or Constitutional Court justices, the Attorney General and Solicitor General, and members of Electoral Councils and Courts. It is these state officials that oversee the delivery justice, guarantee the separation of powers, and defend the supremacy of the Constitution. Therefore, these officials lead institutions which are key in building (or wearing down) public trust and consequently establishing a stable democracy. 

Some state officials, elected by congressional appointment, especially judges, already face a question of democratic legitimacy, since, contrary to Presidents and/or members of Congress, they are not directly elected by the people. Both the executive and the legislative powers should restrain from taking actions that erode the legitimacy of the officials appointed by Congress and should instead take actions that ensure rule of law and democratic principles, by appointing them through a transparent process with a considerable amount of public scrutiny in order to achieve the desired public trust of democratic institutions. Nonetheless, Central America has lately taken steps in the other direction. 

By manipulating the election of state officials within their legislative assemblies, strongmen such as Daniel Ortega in Nicaragua or Juan Orlando Hernández in Honduras, managed to elect Supreme Court justices who would back their (eventually successful) unconstitutional reelection bids (even though their Constitutions incorporated a prohibition to re-election and required alternance in the presidency). 

In both countries, the attorney generals, as chief prosecutors elected by Congress, failed to demonstrate independence and autonomy. Nicaragua’s Attorney General was sanctioned by the United States, the United Kingdom, and the European Union for human rights abuses, undermining democracy, and fabricating cases against the opposition, in compliance with the Ortega regime. The Honduran case, while different, is no less interesting, since the Attorney General failed to initiate at least one investigation against ex-President Hernandez and his brother, even though the former  was recently extradited on drug dealing charges to the United States and the second has already been found guilty in a drug case by the Court of the Southern District of New York.

Meanwhile, Guatemala has found itself in turmoil during the last couple of years over the appointment of judges to its Supreme Court, Constitutional Court, and Courts of Appeal. Though not all of these appointments depended on Congress (as some come from the Executive and Judiciary branches, universities, and the Bar Association), the appointment process was stalled by means of different legal actions, political collusion, and widespread corruption, which has made transparency and public scrutiny over the election process very difficult.  

Other Central American countries face similar problems. For example, the new Salvadoran government coalition led by the highly controversial populist president Nayib Bukele, ousted justices from the Constitutional Chamber of the Supreme Court and the Attorney General. These officials were swiftly replaced with friendlier figures to his government in a process that had little to no public scrutiny and which received heavy criticism from the international community.  

It appears that leaders across the Central American region have had a hard time accepting that democracies require checks and balances, that the independence of democratic institutions must be respected, and that the election of state officials by their legislative assemblies requires public scrutiny and transparency to guarantee their legitimacy. 

Just as the well-being of a democracy requires not only periodical elections for the executive and legislative powers, but that such elections be fair, transparent, and the result of such elections is recognized by the people and the international community; the same happens with the elections made by Congress. Supreme Courts, Constitutional Courts, Attorney Generals, and other high-ranking state officials are usually elected by legislatures, however, the people and civil society organizations are not normally permitted to participate in the process. Public hearings are not habitually held, and the public therefore is not given the opportunity to know who is being elected to key positions within their state. This diminishes the people’s trust that state officials’ will act in the interests of the people, according to their expectations. It can also lead the people to doubt that officials will compliance with the law, by raising suspicions that they serve partisan (or even personal) interests, therefore contributing to the crisis of representation. 

Congressional appointments should be made transparently, after public hearings, and the appointment process that allow society in general a degree of participation to access relevant information of the nominees and ask pertinent questions. Such scrutiny of both nominees and the congresspeople who appoint them and the outcomes of such appointments, will unequivocally be of great importance for Central America to get back on track to reassemble, rather than dismantle, their feeble democracies. Allowing more transparency and public scrutiny over congressional appointments is one of the ways in which our governments can help rebuild the people’s trust in democratic institutions, after years of thoroughly working to weaken them.   

Dennis Emilio Hércules is a Master in Constitutional Law (CEPC), LLM candidate (University of Bristol) and Law professor and consultant at the Central American Technological University. 
Suggested Citation: Dennis Emilio Hércules, ‘Why Central America needs more transparency and public scrutiny over congressional appointments’ (20 September 2022) https://blog-iacl-aidc.org/central-america/2022/9/20/why-central-america-meeds-more-transparency-and-public-scrutiny-over-congressional-appointments.