Choosing a Supreme Court

The next three weeks will see El Salvador's National Assembly make very important choices of magistrates for the country's highest court.

The Washington Office on Latin America explained what is at stake:
In July 2018, four out of the five magistrates who sit on the Constitutional Chamber of El Salvador’s Supreme Court will have finished serving their five-year terms. The Constitutional Chamber is charged with ruling on matters related to constitutional law, including conflicts between the executive and legislative branches, and thus is a key institution for protecting the fundamental rights and freedoms of Salvadorans. There is no doubt that the selection of the new magistrates by El Salvador’s Congress will have long-term ramifications for the country’s ongoing struggle to improve rule of law. 
While the magistrates who make up the current Constitutional Chamber have generated controversy with some of their decisions, they are widely viewed as having defended due process and the rule of law. One of their most emblematic decisions was overturning the 1993 Amnesty Law, which prevented prosecutions of grave human rights abuses or war crimes committed during the country’s 12-year civil war.
The Constitutional Chamber has been responsible for many recent decisions which have had important impacts on the rule of law in El Salvador.   A series of decisions diminished the power of political party bosses and increased the power of individual voters with respect to selection of legislators in the National Assembly.  In the past two years, the Constitutional Chamber has been in constant conflict with the FMLN government, blocking several initiatives and provoking vigorous complaints from the left.

The new magistrates will be chosen by the National Assembly from a list of 30 candidates.  To develop this list, fifteen candidates were chosen in elections by the lawyers of El Salvador.  Fifteen other candidates were chosen by the National Judicial Council from current lower court judges.

This selection process has been criticized by outside observers, particularly the elections sponsored by the Salvadoran lawyer associations.   The elections are partly a legal popularity contest as evidenced by the campaign posters I saw in a visit to the Santa Ana judicial center earlier this year.  Although the elections seemed to be clean and fair enough, they do not necessarily guarantee the most qualified candidates.

A panel of three international legal experts reviewed the process of selecting all the 30 finalists.   The panel found deficiencies in both the evaluation process by the National Judicial Council and the election process of the legal associations.

Currently the National Assembly is holding committee hearings in which legislators publicly interview the 30 candidates.    This opening up of the process represents an improvement over prior years where there were no such public hearings and the public had little chance to know or scrutinize the candidates.

Civil society groups, however, have critiqued the interview process in the committee hearings for including only limited opportunities for participation by civil society organizations, and for variations in the questions asked to different candidates.

Past selections to El Salvador's Supreme Judicial Court have been made by political negotiations in back rooms by the country's major political parties.  Advocates for integrity in the selection process are trying to achieve greater transparency and a focus on quality magistrates.   In twenty days the country will know if those efforts succeeded.

"Deputies-- Choose well -- We want a Capable Supreme Judicial Court"
ISD Campaign for Magistrate Selection Process