—José Ignacio Hernández G., Fellow, Growth Lab-Center for International Development Harvard; Professor of Administrative Law at Universidad Católica Andrés Bello; Invited Professor, Universidad Castilla-La Mancha, and Tashkent University.
In just a few hours, between the evening of May 1 and the early morning of May 2, the Legislative Assembly in El Salvador removed the five judges of the Supreme Court’s Constitutional Chamber and appointed new judges. The Assembly justified the decision in the purported Chamber’s abuse of power while reviewing executive and legislative decrees enacted during the COVID-19 pandemic.
In the legislative election of February 2021, President Bukele’s political party won almost 80% of the Legislature’s seats. The electoral campaign was mainly based on electoral promises of “house cleaning”, this is, the necessary removal of officials appointed by the previous Assembly. In its first session, the Assembly fulfilled the promise and, claiming a popular mandate, ousted the Constitutional Chamber’s judges.
The majority of deputies that voted in favor argued that according to Article 184 of the Constitution, the Legislative Assembly has the authority to oust the judged based on the “causes established in the Law”. From a strictly formal approach, this is a sound argument: the Assembly has the textual authority to remove the judges by a two-thirds vote.
But Constitutional Law is not only about formalities but also about the substantive respect for the core components of constitutional democracy embedded 2001 Inter-American Democratic Charter. From this perspective, the removal of the El Salvador Constitutional Chamber’s judges should be considered an example of the “Constitutional Authoritarian-Populism”.
To address this conclusion, the post is divided into two parts. The first one will summarize the basic facts. The second one will explain why regardless of the constitutional formalities, the removal of the judges could be considered an example of authoritarian populism.
1. The removal of the Constitutional Chamber’s judges and political decline in El Salvador
Since his election in 2019, President Bukele has actively conducted the Government to deliver efficient goods and services, challenging the controls exerted by the 2018 Assembly, in which Bukele’s political parties were a minority. This tension increased during 2021, in the electoral campaign of the Assembly, to the extent that President Bukele requested that the Organization of American States appoint a special mission to assure the protection of the Inter-American Democratic Charter.[1]
The Constitutional Chamber, in charge of the constitutional judicial review, was also a target of attacks, particularly after the ruling dated June 8, 2020, that annulled several executive and legislative measures adopted as a result of the state of emergency declared amidst the COVID-19 pandemic.[2]
From a comparative perspective, the pandemic has raised concerns about protecting constitutional democracy against emergency powers (Ginsburg and Versteeg), including in the Inter-American Human Rights System (Bogdandy et al.). Constitutional judicial review has been the final guarantor of the values of constitutional democracy, applying the proportionality test to the emergency measures adopted to protect public health (Heinig).[3]
Based on the proportionality test, the ruling dated June 8, 2020, reviewed several emergency decrees. It respected the deference towards the Executive and Legislative branches. Also, the ruling was based on an Inter-American dialogue, quoting decisions from other courts (such as the Constitutional Court in Colombia) and the Inter-American Human Rights Court. From a comparative perspective, it was not an uncommon example of judicial review over pandemic emergency decrees.
But the Legislative Assembly, in its first session after its elections, challenged the Constitutional Chamber ruling, considering it as an excess of power that gave priority to private interest over the common good, posing unnecessary risks to the public health. Under these general considerations, the Assembly voted to oust the Chamber’s judges.[4]
The Chamber tried to stop this procedure, with an ex officio ruling enacted on the evening of May 1 that declared the unconstitutionality of the removal procedure. But it was too late: the Assembly approved the removal, and on the early hours of May 2, appointed new judges. The expression “midnight judges” has a new meaning under this experience in El Salvador.
2. The unconstitutionality of a (formally constitutional) decision
The Assembly supported its decision based on a formal approach: under Article 186 of the Constitution, the Assembly has the authority to oust the judges with at least the vote of two-thirds of deputies.
But beyond this formal approach, there are solid reasons to consider the removal of the Chamber’s judges as an authoritarian decision that violates the El Salvador Constitution and the Inter-American Human Rights System. In summary, four arguments demonstrate the authoritarian nature of the Assembly’s decision:
- Although Article 186 recognizes the Legislative’s authority to oust judges of the Supreme Court, including judges of the Constitutional Chamber, the decision should be based on the reasons for removal established by law. And in El Salvador, no law regulates the causes for removal. Because the dismissal of judges is a sanction, according to the constitution and Inter-American Law, it requires a previous law that establishes causes for removal. Without this legal provision, the legislature could not exercise the dismissal power.
- In any case, judges can only be removed for specific wrongdoings. Second-guessing, challenges, or disconformities over the merits of judges’ decisions cannot be used as causes for removal because this would imply an unlawful interference. And this is precisely what happened: the Assembly justified the removal on general challenges over the Chambers’ ruling adopted during the pandemic.
- The removal should be the result of due process. But the Assembly ousted the judges without any hearing.
- Finally, there was no apparent excess of power in the Chamber’s decision. Quite the contrary, it is a ruling similar to other decisions that exert judicial review over emergency decisions adopted during the pandemic, considering the proportionality principle (Ginsburg and Versteeg). Also, it should be considered (Solano) that the Constitutional Chamber, from a comparative perspective, is a weak constitutional court, which limits any probability of abuse.[5]
These four reasons explain why beyond the constitutional formalities, the National Assembly’s decision was an authoritarian one that violated core principles of the judiciary independence established in El Salvador’s Constitutional Law and the Inter-American System of Human Rights, as concluded by the Inter-American Commission on May 3.[6]
From a comparative perspective, Ginsburg, Simpser, and Tushnet have explained that hybrid regimes can observe constitutional forms in a slow-motion transition to authoritarianism. To describe this situation, scholars refer to the “Authoritarian Constitutional Law” that can be defined as the constitutional formalities adopted to cover authoritarian decisions by hybrid regimes.[7]
Precisely, the Legislative Assembly, a newly elected body, used the formalities of the El Salvador Constitution to cover the unlawful removal of the Chamber’s judges, following the electoral promise of “house cleaning”.
Additionally, the Legislative Assembly justified its decision in the “defense of the people”. The February election was considered a popular mandate to oust the officials deemed corrupt. When announcing the Assembly’s decision, President Bukele claimed that the people fired the judges.[8]
This reasoning is an example of populist rhetoric, the discourse based on the exaltation of the people’s will against “corrupted elites” to support authoritarian measures (Inglehart-Norris, Landau). Therefore, the removal of the Constitutional Chamber’s judges is an example of authoritarian-populism because the decimation of the constitutional democracy values was justified on populist rhetoric.[9]
The authoritarian-populist theory helps to understand better the concept of Authoritarian Constitutional Law. From one side, populist rhetoric is often related to the constitutional formalities that cover authoritarian measures, because those formalities are interpreted as a defense of people’s will (vox populi). From the other side, it is possible to understand the emergence of hybrid regimes due to the authoritarian values embraced by society, which decided to support authoritarian policies in free and fair elections. To facilitate the comprehension of this complex situation, I’ve proposed to talk about Authoritarian-populism Constitutional Law.[10]
The El Salvador example demonstrate the relevance of this approach. As was explained, the parliamentary election was marked by authoritarian promises. The landslide victory could confirm that the electorate embraced such authoritarian values. Considering this “popular mandate”, the Legislative Assembly used constitutional formalities to oust the Chamber’s judges, thus violating several constitutional and Inter-American standards. Hence, the removal of the judges can be considered an example of Authoritarian-populism Constitutional Law.
If protecting constitutional democracy from hybrid regimes is a challenge, protecting constitutional democracy from a society that has embraced authoritarian values that favor authoritarian-populist parties or leaders is a more difficult task. That is what is happening in El Salvador. Not only is it necessary to pierce the veil of constitutionalism to demonstrate the authoritarian nature of the removal of the Chamber’s judges. In addition, it is also necessary to pierce the veil of popular sovereignty to recall that supremacy resides in the Constitution and human rights, as Tocqueville warned in the 19th century while talking about the “tyranny of the majorities”.
Also, El Salvador is an example of the risks that the pandemic is creating. The main argument of the Assembly was that the people’s right to health should be protected without any unnecessary constraint. When governments prefer efficiency over constitutionalism, the path to authoritarian measures is eased. The Inter-American Democratic Charter recalls that there should be no conflict between the rule of law and development. Development should only be promoted if it can be achieved within the rule of law (Articles 3, 4, and 11).
Suggested citation: José Ignacio Hernández G., The Mass Removal of Constitutional Judges in El Salvador: A New Case of Constitutional Authoritarian-Populism, Int’l J. Const. L. Blog, May 14, 2021, at: http://www.iconnectblog.com/2021/05/the-mass-removal-of-constitutional-judges-in-el-salvador-a-new-case-of-constitutional-authoritarian-populism/
[1] For an analysis regarding the authoritarian trends in El Salvador, See Zovatto, Daniel (2019), “Bukele Wins: Out With the Old, In With the New”, IDEA, retrieved here: https://www.idea.int/news-media/news/bukele-wins-out-old-new/
[2] The ruling dated June 8, 2020, can be seen here: https://www.jurisprudencia.gob.sv/busqueda/showFile.php?bd=1&data=DocumentosBoveda%2FD%2F1%2F2020-2029%2F2020%2F06%2FDD586.PDF&number=906630&fecha=08/06/2020&numero=21-2020AC&cesta=0&singlePage=false%27
[3] See: Ginsburg, Tom and Versteeg, Mila (2020), “The Bound Executive: Emergency Powers During the Pandemic”, Virginia Public Law and Legal Theory Research Paper No. 2020-52 and University of Chicago, Public Law Working Paper No. 747, 2020, retrieved here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3608974. See also Bogdandy, Armin von (2020), La resistencia del Estado Democrático de Derecho en América Latina frente a la pandemia de COVID-19. En enfoque desde el ius commune, MPIL Research Paper Series No. 2020-35. Finally, see: Heinig, Hans et al., (2021) “Why Constitution matters: la ciencia del Derecho Constitucional ante la crisis del coronavirus”, Revista de Derecho Público: Teoría y Método, Volumen 1, 129.
[4] The reasons used by the National Assembly to justify the removal of the Constitutional Chamber’s judges, can be seen in the official twitter account: https://twitter.com/AsambleaSV/status/1388637582943260675?s=20
[5] Commenting on the El Salvador case, among others, Ginsburg and Versteeg concluded that “some courts have engaged in substantive rights review, with the goal of ensuring that the restrictions on rights are necessary, proportional and equally applied” (Ginsburg and Versteeg, 5). To analyze the scope of judicial review in El Salvador, among others, see: Solano, Mario (2007), “La jurisdicción constitucional en El Salvador”, Anuario Ibero-Americano de Justicia Constitutional No. 11, 339.
[6] The Inter-American Commission on Human Rights “notes with extreme concern the absence of due process guarantees and specific causes, as provided by the Constitution, in the expedited removals decreed by the National Assembly, elements that constitute a serious attack on the principle of separation and independence of powers and the democratic rule of law”. See https://www.oas.org/en/iachr/jsForm/?File=/en/iachr/media_center/preleases/2021/110.asp
[7] Ginsburg, Tom and Simpser, Alberto (2018), “Introduction: Constitutions in Authoritarian Regimes”, and Tushnet, Mark (2018) “Authoritarian Constitutionalism: Some Conceptual Issues”, in Ginsburg, Tom and Simpser, Alberto (ed), Constitutions in Authoritarian Regimes, Cambridge: Cambridge University Press, 1 and 36.
[8] See the declaration of President Bukele: “The people does not mandate us to negotiate. Bukele announces new removals of officials in El Salvador” La Tercera, May 3, 2021: https://www.latercera.com/mundo/noticia/el-pueblo-no-nos-mando-a-negociar-bukele-anticipa-mas-destituciones-de-funcionarios-en-el-salvador/Z5MEGO23R5CQ7ERXYFFZOP6CSY/
[9] Norris, Pippa and Inglehart, Ronald (2019), Cultural Backlash. Trump, Brexit and authoritarian populism, Cambridge: Cambrige Universy Press 3 and 65. From a Constitutional Law perspective, see David Landau (2018) “Populist Constitutions”, The University of Chicago Law Review 85, no. 2, 521-44.
[10] See my post: José Ignacio Hernández G., Towards a Concept of Constitutional Authoritarianism: The Venezuelan Experience, Int’l J. Const. L. Blog, Dec. 14, 2018, at: http://www.iconnectblog.com/2018/12/towards-a-concept-of-constitutional-authoritarianism-the-venezuelan-experience/
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