Central America: A Turn Towards Politically Charged Courts

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Edgar Ortiz Romero

Universidad Francisco Marroquín & Universidad del Istmo de Guatemala

Overview

The main features of the high courts of constitutional jurisdiction in Central America are the politicization of the selection process for judges, short tenures and weak protections against arbitrary removals. In the case of Honduras and Guatemala, but especially in the latter, the presence of external influences over the selection process has become a trademark of the system.

Central American countries can be compared by what they lack, democracy being one clear parameter. Costa Rica is the only country considered a full democracy in the region. Nicaragua is an authoritarian regime, while El Salvador, Guatemala and Honduras are ranked as hybrid regimes. When it comes to judicial independence, again Costa Rica is an outlier. The remaining countries in the region show a poor performance in the latest rankings available on judicial independence, in which Nicaragua takes the penultimate position of all 137 countries ranked, outranked only by Venezuela.

There is abundant literature on Costa Rican exceptionalism in general and the independence of the Costa Rican Supreme Court in particular. But the situation of the high courts in the rest of Central America rarely comes under the spotlight.

Nicaragua: A Single Political Party System

In Nicaragua, the president and any congressperson can propose names to fill judicial positions on the Supreme Court to a special committee of the legislative branch. The Legislative Assembly then appoints the 16 magistrates of the Court.

In practice, however, the legislative and executive branches are controlled by a single party which results in absolute control over the Supreme Court. In 2009, a ruling of the Supreme Court allowed the re-election of President Daniel Ortega despite a constitutional prohibition. The Court’s credibility was also at issue when the president of the Supreme Court was sanctioned by the European Union for “serious human rights violations”.

Guatemala and El Salvador: The Price of Transparency

In El Salvador and Guatemala, the high courts exhibited periods of relative independence, performing enlightened, and counter-majoritarian roles, but at some point, both courts faced a backlash. 

For example, El Salvador’s Constitutional Chamber of the Supreme Court in 2010 declared unconstitutional the ‘closed list voting system’ to elect members of the legislative assembly, a decision highly unpopular with the dominant political parties back then. The Court faced a backlash from the Legislative Assembly which tried, unsuccessfully, to amend the law to require that decisions of the Constitutional Chamber be made by unanimity. It also sought to replace the Constitutional Chamber, a decision that the Chamber itself ruled  unconstitutional, leading to increased tension between the parties.

In the following years, El Salvador’s Constitutional Chamber issued other important rulings. In 2015, it ordered the relevant authorities to repeat the selection process to nominate Supreme Court Justices on the grounds that the National Judicial Council used a secret voting system to integrate the final list of eligible candidates. The ruling demanded a transparent process of selection.

In May of 2021, the Legislative Assembly of El Salvador voted to remove the magistrates of the Constitutional Chamber and filled up the vacant positions in a questionable process. 

In Guatemala, some Constitutional Court magistrates were repeatedly subjected to interference, and pre-trial motions were promoted or backed by political actors. Although none of these actions were successful, the term of the judges of the Court ended in May of 2021. The selection process for judges of the Constitutional Court is decided by the three branches of government, the Bar Association, and the Public University. Political parties and external actors exert influence over these appointments that lack any standard of merit.

The results of the newly appointed courts are evident now in both countries. The Constitutional Chamber in El Salvador recently ruled to allow presidential re-election in El Salvador, once again despite a constitutional provision. The ruling originated in a request to strip a congresswoman of her political rights for promoting reelection against a constitutional prohibition (article 75). In the ruling, the Court dismissed the request as well as the prohibition on re-election. It also “ordered” the electoral authority to act according to its new interpretation of the Constitution.  

In Guatemala, last year the Constitutional Court was deferential to the presidential power to decree states of emergency, and in January of 2022, it made it difficult for the legislative branch to exert accountability over the executive in a series of advisory opinions.

Guatemala: Corporative Bodies and the Election of Judges

What makes Guatemala an interesting case is the presence of intermediate-corporativist bodies involved in the selection of High Courts. It is more evident in the case of Supreme Court appointments where the deans of the law departments, along with representatives elected by the Bar Association and representatives of the judicial power form a nominating commission to draft a list of eligible candidates that is later sent to Congress which finally appoints the Supreme Court justices.

This has created a complex web of informal interest groups that have strong incentives to invest in the election of these intermediate bodies. In 2018, a UN-backed anti-graft commission along with the Attorney General’s Office prosecuted several actors in a case known as Comisiones Paralelas arguing that extra-governmental actors were seeking to infiltrate the Supreme Court during the selection process of 2014.

In 2020, the Attorney General’s Office again presented a criminal investigation arguing that members of the nominating commissions had engaged in influence peddling to fill judicial vacancies on the Supreme Court.

The mechanism of the nominating commissions was reformed in Guatemala during the constitutional changes of 1993. It was conceived as a mechanism to depoliticize the selection of the judges to the High Courts. In the end, however, it led to the politicization of the nominating bodies (the Bar Association and some law departments) and failed to bring the promised reforms to ensure judicial independence.

Honduras: Nominating commissions again

Honduras took a similar path to Guatemala in the use of nominating commissions. Currently, the country is in the middle of the process for selecting Supreme Court Justices. Representatives from the Supreme Court of Justice, Bar Association, the Ombudsman, law professors and civil society form the nominating commission to draft a shortlist for Congress. Like Guatemala, the nominating commission does not follow any merit-based evaluation.

Moreover, Honduras lacks constitutional protections against arbitrary judicial removals. In 2012, the Congress of Honduras removed four of the five justices of the Constitutional Chamber of the Supreme Court following a series of rulings that invalidated important legislation of the political party in power. The new Court, in 2015, issued a ruling that invalidated the constitutional prohibition against reelection on the grounds that such provision violated the American Convention on Human Rights. The Court allowed the president to stand for re-election, despite the constitutional prohibition.

The rise of extra-governmental actors

Central America, except for Costa Rica, is a region where the subordination of the judiciary to the political power is prevalent. The presence of extra-governmental actors is also notable and shows how problems in constitutional design can open the door for new problems such as the infiltration of organized crime in the High Courts.

Guatemala is a case study of how the intermediate bodies to nominate judges (nominating commissions) are responsible for the emergence of new players that exert overt influence on the appointment process. Some law departments, the Bar Association and the association of judges have become increasingly politicized bodies because of their power in the nominating process.

Given the weak structure of political parties, these players tend to become permanent structures that, from time to time, can be allies of political actors, can act independently or simply become mercenaries at the service of other powerful actors. This creates a new set of problems for judicial independence where judges are subject to pressure from both political and extra-political actors.

Edgar Ortiz Romero is Professor at Universidad Francisco Marroquín and Universidad del Istmo de Guatemala

Suggested Citation: Edgar Ortiz Romero, ‘Central America: A turn towards politically charged courts’ IACL-AIDC Blog (27 September 2022) https://blog-iacl-aidc.org/central-america/2022/9/27/central-america-a-turn-towards-politically-charged-courts.