WEBINAR 3: AMERICAS - Judicial Assertiveness in Times of Crisis: The Case of El Salvador
Monica CASTILLEJOS-ARAGÓN
16 November 2020
Introduction
Even in democratic nations, the executive power narrows civil liberties in times of emergency, including personal mobility, the writ of habeas corpus, and limiting mechanisms to access justice systems. Literature on this field suggests that courts function poorly as guardian of liberty in times of crisis. To support the account of such weak behavior of courts during crisis, scholarly research has offered various persuasive reasons. Some argue that judges are part of the government and are likely to identify with the government’s interests during challenging times. Others note that assessing executive policies during an emergency is inherently difficult, particularly because judges’ information is often asymmetric in comparison to the Executive.
Other research claims that judges would be concerned that if they rule against the government on emergency policies, their credibility and legitimacy might be tested, and would, eventually, trigger the executive’s defiance of the court’s decision. Political science literature suggest that courts will only challenge powerful actors in defense of rights and rule of law principles if the formal political context allows them to act. However, as Hilbink observes, “something other than political fragmentation is needed to explain assertive judicial behavior.”
The recent behavior of the Constitutional Chamber of the Supreme Court in El Salvador (the Chamber) challenges those propositions and suggests a different account to understand and assess judicial behavior in times of emergency. President Nayib Bukele has governed with a parliamentary minority, and in permanent confrontation with the Legislative Assembly, and even with the Supreme Court. Despite such persistent hostility, Salvadorian justices have exercised their authority proving as Hilbink suggests– that political fragmentation is neither necessary nor sufficient for them to assert their power and demonstrate judicial independence. Rather, political struggle has reinvigorated their institutional response vis-à-vis the controversial measures imposed to contain the COVID-19 spread. This article describes the novel reaction of the Chamber and how it has moved swiftly to address unique challenges to ensure that the judiciary remains operational during the pandemic.
Recent judicial developments offer a unique model for understanding the role of courts during emergencies. Like a beacon, in these uncertain times, the Chamber has cast its bright light for the executive and legislative powers to see and follow the meaning of the Constitution. With this insight in mind, this article explores broader questions about the conditions under which judges may be able to assert their power against political actors in emergency circumstances.
Post-Civil War Era, 1992
Following the historic Chapultepec Peace Accords in 1992, there has been a lingering perception in El Salvador that peace did not equal justice. The country’s post-civil war struggle to establish fully independent and credible institutions, capable of providing justice to all of its people, is well-documented. After the peace accords, human rights violations continued. The judiciary lacked independence and failed to investigate and try cases of serious human rights violations. Emergencies are not new in El Salvador; the outbreak of the civil war had also led to restrictions on civil liberties.
The notable resolution of the armed conflict (1979-1992) has been properly praised but the process of building the rule of law has remained a work in progress. An independent justice system is a necessary component of a democracy. But a justice system capable of protecting rights, remedying wrongs regardless of the power of those responsible, has never existed in El Salvador. The creation of the Constitutional Chamber, in 1983, represented a crucial step towards the consolidation of democracy in the country. Nevertheless, the idea of the Constitutional Chamber as a court to promote the consolidation of democracy presented a major challenge and, if achieved, a key progress for justices to build upon. In 2020, the Chamber became committed to function as a court for democracy.
Does Time Erase Memory?
On March 11, 2020 President Nayib Bukele defied El Salvador’s status as a constitutional democracy, causing an unprecedented crisis. Amidst the COVID-19 outbreak, President Bukele proposed a series of controversial decrees to limit the spread of the virus among the population. Since their adoption, President Bukele has embarked on an open-ended and seemingly Olympian confrontation with both the Legislative Assembly and the Constitutional Chamber over what he deems an internal power struggle among them, rather than a constitutional controversy. The Executive has issued over 87 administrative regulations, including decrees, accords, and ministerial resolutions imposing highly controversial policies that have affected the lives of thousands of Salvadorans. Three days after the WHO’s pandemic declaration, with no known cases in the country, the President took the extreme measure of announcing a collective quarantine considered by many a de facto exception regime with serious implications for people’s rights and liberties.
At the outset, Bukele’s fast response was, in fact, praised by the international press, especially for the short-term positive impact of such restrictions vis-à-vis the number of cases reported in the country. Yet the content and scope of those decrees tell a different story. A de facto regime was institutionalized through Decree 594, which allegedly incorporated the “Temporary Restriction of Concrete Constitutional Rights Law to handle the Covid-19 pandemic” into the legal system. Even though the law did not formally declare the existence of an exception regime, in practice it restricted and violated rights and freedoms, including the freedom of movement and due process of law rights. Decree 594 was in effect for 60 days and, fifteen days after its expiration, its contents had been replicated in Decree 611, with slight variations. Decree 611 included the “Regulation for Isolation, Quarantine, Observation and Surveillance Law”, which officially established an exception regime in the country.
Also, under public health pretenses, Nayib Bukele used the military as public security agents and gave the police carte blanche to commit a series of human rights violations. Since then, hundreds of Salvadorans have been illegally arrested and detained in overcrowded quarantine centers (“centros de contención”) with proven unsanitary conditions. Citizens, who did not previously present any symptoms, tested positive after spending days in such illegal detention, all in clear violation of their due process rights. These measures have resulted in higher infection rates and the deaths of some detainees. People have been arrested for not wearing a mask even though the country’s supply has run shortor for walking to grocery stores or pharmacies. Both the military and the police became “quasi-medical professionals” empowered to determine who was infected or not, without any scientific basis. Videos have circulated showing police officers beating elderly citizens for violating quarantine measures. Other videos have shown police officers forcing a group of men to walk in line down the street, with their hands on their heads, and shouting, “I don't have to leave my house!”.
On April 2020, President Bukele, an avid user of social media, posted a series of shocking photos from a prison, displaying hundreds of gang members sitting on the ground, closely against each other, wearing only underwear and a few face masks. Rivals gang members have been relocated and commingled in overcrowded cells amid the pandemic. President Bukele ordered this measure after more than 20 people were killed in the country and his intelligence office suggested, without an official investigation, that the orders had come from jailed gang leaders. Bukele has built a rhetorical discourse that labels those opposing his measures to control the pandemic as “enemies” of the State. COVID-19 has presented the most viable excuse to exercise control over the other branches of government.
His actions have been compared to those implemented during the armed conflict. They have also unleashed fears concerning remilitarization of the country, as well as causing social distress at the possible return to the years of siege and human rights violations that profoundly marked the history of El Salvador. Police and military members have become, again, “pseudo” judges authorized to assess who is arrested and transferred to contention centers. President Bukele’s unfamiliarity with the history of his own country, has led him to obliterate years of negotiation and reforms to consolidate the rule of law in El Salvador. It seems that time has erased his memory.
Judicial Response
As described above, there are numerous reasons and much evidence to support the claim that courts perform poorly during emergencies, particularly during the current COVID-19 crisis. However, when assessing what role constitutional judges in El Salvador are playing in framing the options available to the executive power, we could, then, offer a less pessimistic account. Contrary to the conventional wisdom, the Constitutional Chamber of El Salvador has played a major role in functioning as a guiding beacon to President Bukele’s executive actions. On June 8, 2020, the Chamber issued a landmark decision, inconstitucionalidad 21-2020, that struck down a legislative decree that had temporarily suspended fundamental rights and liberties aiming to control the pandemic.
Plaintiffs had filed various lawsuits challenging the constitutionality of Decree 594 and the Chamber admitted the cases. While the Court was still processing each lawsuit, the decree lost force and expired. To avoid judicial review, the Legislative Assembly issued Decree 611. This new decree officially established a collective quarantine order. The Chamber, however, circumvented this legislative tactic by using the “doctrine of the transfer of constitutional control” as a judicial remedy to review the content of the now expired Decree 594, in light of the language adopted in Decree 611. This doctrine prevents “fraud on the Constitution”. That is, it would preclude the legislator from repealing a normative body and transferring its content to a newly enacted body to avoid judicial review. The Chamber has previously held that such legislative practice is fraudulent.
Upon losing its validity, the Chamber examined whether the contents of Decree 611 were identical to the contents of the expired decree. The Chamber concluded that the two decrees were, in fact, alike. According to the legal system of El Salvador, the Legislative Assembly is the body responsible for issuing a state of emergency at the request of the President. The Legislative Assembly, nevertheless, needs to provide evidence that there is a major risk or danger– this is often supported by reports, including those issued by the health ministry. The Assembly takes those reports into account when making the declaration. Exceptionally, a state of emergency may be decreed by the President, but only when the Assembly is not able to hold sessions. If the President requests a declaration of the state of emergency, then the Legislative Assembly is responsible for holding a session to discuss the request.
The main effect of a state of emergency declaration is to empower the President to enact executive decrees to control a situation that, in normal circumstances, could only be regulated by a law passed by the Legislative Assembly. The Chamber held, among other issues, that a decree that declares a state of emergency can neither establish a collective quarantine measure nor restrict the right of mobility. The Chamber also reasoned that rights and liberties cannot be limited via legislative decree. Since the shelter-in place policy is a collective measure that suspended the rights of all people, it was deemed unconstitutional. The Chamber struck down Decree 611 as unconstitutional, unleashing an aggressive reaction from President Bukele who attempted to defy the Court’s decision.
Final Comments
The Constitutional Chamber has played a visible incremental role in monitoring the Executive’s response to the pandemic, balancing both public health measures vis-à-vis fundamental rights. Since June 2020, the Chamber has vigorously asserted its role as constitutional judge and has played various guiding constitutional roles. It has utilized the writ of habeas corpus as the primary mechanism to question and strike down unconstitutional measures implemented by the Bukele administration. It has also promoted better access to justice, by relaxing procedural rules for people to challenge extreme measures to contain the pandemic and departed from formalistic procedures to expedite processing times of cases. Judges have utilized novel judicial remedies (auto de exhibición) and expanded the scope of constitutional interpretation to protect fundamental rights and liberties.
Monica Castillejos-Aragón received a doctoral degree (J.S.D) and a master’s degree (LL.M) with honors from The University of California, Berkeley School of Law. She is also a licensed attorney in Mexico from Instituto Tecnológico Autónomo de México (ITAM) since 2005. After completing her law school studies, Dr. Castillejos clerked at the Mexican Supreme Court and worked at the Attorney General Office of Mexico for various years. Given her interests in justice systems in comparative perspective, she has conducted professional and research visits at the Supreme Court of California, the Supreme Court of India, and at the Constitutional Court of Colombia. Dr. Castillejos-Aragon has also worked as a Research Associate for the Human Rights Center at UC Berkeley for a transitional justice project along with Asociación Pro-Búsqueda de Niños y Niñas Desaparecidos in El Salvador. Her research and teaching focuses on comparative courts and politics and transitional justice in Latin America. A portion of her doctoral dissertation appeared in the book “Consequential Courts. Judicial Roles in Global Perspective”, published by Cambridge University Press. Dr. Castillejos-Aragón currently teaches Law, Judicial Politics and Rights in Latin America at the Legal Studies Department at UC Berkeley.