US and Human Rights Watch warn that judicial independence is under threat in El Salvador

US and Human Rights Watch (HRW) concerned about reforms approved by Congress in El Salvador that they dismiss judges and prosecutors in their sixties, which they qualify as a threat to the judicial independence of this country, as was expressed on Thursday.

The charge d’affaires of the American Embassy in El Salvador, Jean Manes, posted a tweet in which he expressed his concern about “the reforms of the law on the judicial career and the public prosecution”, because “an independent judiciary and the separation of powers are vital for democracy”.

He noted that “experience, insight and wisdom are essential in law enforcement and other careers. General discrimination based on age or years of work ensures that the talent that exists is not put to use and opens the door to political influence in the justice system ”.

Human Rights Watch warned that two laws approved by the Legislative Assembly of El Salvador on August 31 “threaten the independence of the judiciary by allowing the authorities to dismiss all judges and prosecutors aged 60 or over”.

“The bills passed by the Legislative Assembly, which is controlled by supporters of President Nayib Bukele, said that judges and prosecutors aged 60 and over will “cease their duties” immediately. While it is not known how many judges will be affected, some estimates indicate that more than 200 of the country’s 700 or so judges can be removed and replaced by judges appointed by the Supreme Court, whom Bukele’s allies in the Assembly have recently packed, ”noted the non-governmental organization dedicated to the investigation, defense and promotion of human rights.

José Miguel Vivanco, director for the Americas at Human Rights Watch, said: “Since Bukele’s supporters took control of the El Salvador assembly in May, have taken drastic measures which appear to be aimed at destroying the independence of the Supreme Court and the Office of the Attorney General”.

He added: “These laws seem designed to ensure government control over a large number of lower level judges and prosecutors.

The NGO recalls that the new legislation It will apply to all judges and prosecutors, except those of the Supreme Court of Justice. Previously, the law has not established a mandatory retirement age for the judges and said they could retire after 35 years of service.

In addition, he indicated that the new laws allow the Supreme Court to extend the mandate of judges aged 60 or over ”for reasons of necessity or specialty“And the Attorney General to extend the mandate of the prosecutors”for convenience“O”due to the complexity or specialty of its services“.

“These provisions are vague and could easily be used to reward loyal government judges and prosecutors., while ensuring that only those who are independent or perceived to be independent are left out, ”Human Rights Watch said.

He also stated that, since taking office in 2019, “President Bukele undermined grassroots democratic checks and balances. He publicly challenged the decisions of the Constitutional Chamber of the Supreme Court which prohibit arrests for violating measures related to COVID-19 and accused the judges of being “genocidal”.

He recalled that in February, his party, New Ideas, obtained a two-thirds majority to the Assembly. On May 1, a few hours after the siege of the pro-Bukele Assembly, lawmakers dismissed and replaced all judges of the Constitutional Chamber of the Supreme Court, as well as the Attorney General. Lawmakers have clearly taken action, in violation of international standards on judicial independence, because They didn’t like the decisions of the judges.

” End of June, the Assembly appointed five new judges to the Supreme Court, without transparency or open deliberation and in violation of the process established by the Constitution and the Assembly’s rules of procedure. Whenever the legislature changes, the law allows the newly constituted body to appoint 5 of the 15 Supreme Court justices. However, the new Assembly controlled by Bukele’s allies appointed 10“Said HRW.

Finally, the NGO stressed that under international human rights standards, El Salvador “must preserve the independence and impartiality of its judiciary. A series of authorized instruments, including the United Nations Fundamental Principles on the Independence of the Judiciary, the Universal Charter of Judges and the Statute of Ibero-American Judges, establish the key elements of an independent and impartial judiciary. This concerns in particular the requirement that judges are free from restrictions, pressures or orders imposed by other branches of government, and security in the position so that they do not fear being dismissed from their functions for their decisions”.

According to the Universal Judges Charter, changes in the mandatory retirement age for judges “must not have retroactive effect”.

“While in principle governments are free to determine the compulsory retirement age of their judges, the United Nations Special Rapporteur on the independence of judges and lawyers criticized similar legislation which retroactively lowers the compulsory retirement age for judges as “flagrant violation of tenure security principles‘. The special rapporteur also called on governments to ensure that the new pension schemes are only applicable to judges who “have assumed their functions after the entry into force of the law”, he concluded.

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