Central America / Politics

“When countries show democratic fissures, it's because of poor judicial elections”

José Luis Sanz
José Luis Sanz

Friday, June 21, 2024
José Luis Sanz

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During his nine-year term on the Constitutional Chamber of the Supreme Court, from 2009 to 2018, Sidney Blanco and three fellow magistrates shook the political bedrock of El Salvador. Their gavels forced the Executive to publicly report spending, limited the power of political parties, opened the door for independent candidates, and struck down the wall of impunity that the 1993 Amnesty Law constructed for civil war-era crimes. Six years later, in forced retirement following the purge of senior judges enacted in August 2021 by the Bukele administration, Blanco is now in voluntary exile.

“It’s out of precaution that I don’t live in my country,” he says. “Now that the government is trying to erase history and its actors, living in El Salvador poses a risk to those of us who have had any kind of political or social influence, especially on issues of justice or human rights.” A prosecutor of the Jesuit massacre case in the early 90s —he quit after his superiors sabotaged his own investigation— and a judge for over 25 years, Blanco decided to leave in 2023. After a year in Costa Rica, he moved three weeks ago to Arlington, Virginia, miles outside of Washington, D.C. That is where he gave this interview to El Faro English.

A dyed-in-the-wool defender of judicial independence, Blanco was among the first to sound alarms that the Salvadoran justice system risked being converted, under Bukele’s power, into a political arm of the ruling party. Now that the president controls the Supreme Court and imposed a tailor-made Constitutional Chamber that illegally validated his reelection, Blanco asserts that “judges in El Salvador have ceded independence to guarantee their survival.”

Perhaps that is why he has accepted an invitation to join a panel of international experts who, starting this week, will go to Guatemala to observe the selection process of the Supreme Court of Justice and Appellate Courts, which began this month and should conclude in October. In play is not only the future of a justice system hijacked in the past decades by partisan interests and corrupt actors; hinging on this outcome is the Bernardo Arévalo administration’s room to maneuver and, according to the most pessimistic, even its survival. If the justice system cannot shake its cooptation, there are those who fear a renewed effort to deal a coup d’état from the courts.

Blanco will be joined on the panel of experts by Mexican human rights lawyer Ana Lorena Delgadillo and by Antonia Urrejola, former president of the Inter-American Commission on Human Rights and recently departed foreign minister of Chile. The panel has been organized by 14 human rights organizations including the Washington Office on Latin America, the Center for Justice and International Law, the Due Process of Law Foundation, and Impunity Watch, who have not been shy in voicing their extreme concern.

In early June, Nominating Committees were created to review applications: one composed of the deans of law schools, another of judges, and a third of members of the Guatemalan Bar Association. Congress will then vote on the emerging shortlists of names. Of the 26 final candidates for the Supreme Court, 13 new magistrates will be chosen.

As struggles for political control of judicial systems ripple across the hemisphere, Arévalo himself requested in March that the Organization of American States dispatch an international observation mission of its own to Guatemala. This is the first time that a multilateral organization will monitor a high-court selection process.

“When countries show fissures in their democracies, it is to a good extent because of poor elections in the judicial system, which is the branch empowered to curb abuses of power,” posits the former Salvadoran magistrate. And he asks for renewed action from the citizenry, who last year in Guatemala defended Arévalo’s victory in the streets: “If a people want to guarantee justice, respect for their rights, coexistence, and equality under law, they must spring into action, stay vigilant, and support this type of election.”

What is this panel’s mission?
To observe, make comments and suggestions, and divulge our view of the court selection process in its different phases. While we are representing international and Guatemalan civil society organizations, we are an independent panel, in the sense that our mandate leaves each panelist free to weigh in on the process without awaiting an O.K. from the organizations that have proposed us. We will be able to speak in all sincerity about the advantages and virtues of this process, but also the weaknesses we may encounter.

How will you measure success?
The success of the mission obviously is not reduced to whether we are free to think or say what we wish. It would be a success if the Guatemalan court selections are made observing international standards recognized by the Inter-American System, so that those who will make the decisions realize that judicial independence is crucial and that they base appointments on candidates’ technical capacities, honesty, and integrity.

In recent years, investigations by the now-defunct international anti-corruption commission CICIG and the Guatemalan Public Prosecutor’s Office revealed structural problems that include the existence of networks co-opting the justice system. Many of these networks are still operating with impunity. What makes you think that international standards will be observed?
The quality of our democracy rests to a large degree on the independence or submission of the judiciary to political powers. The same is true of respect for human rights and the separation of powers. When countries show fissures in their democracies, it is to a good extent because of poor elections in the judicial system, which is the branch empowered to curb abuses of power and safeguard people’s rights.

We see this, for example, in Venezuela, Nicaragua, El Salvador, Costa Rica, and Chile: only professional and independent courts are capable of guaranteeing democratic stability. At the root of the weakness of the Guatemalan justice system are inadequate selection processes, which is why there are hopes that the process that has just begun can get the country back on track to strengthening its institutions.

I must insist: Guatemalan political mafias have negotiated recent courts, and part of the judiciary worked last year to boycott Arévalo’s victory at the polls. International pressure for respect for the election results drew cries of “sovereignty”... How can this panel, or even the OAS observation mission, have a real impact?
No country in the world can appeal to absolute sovereignty in times when justice is universal and commerce is global. As I said before: Guatemala is experiencing the byproduct of poor court selections. Judges cannot respond to individual interests; they must adhere to constitutional criteria and judicial order. That is the popular will. And if a people want to guarantee justice, respect for their rights, coexistence, and equality under law, they must spring into action, stay vigilant, and support this type of election. We may not always be aware of this fact, but Supreme Court elections are just as important, and in some aspects even more so, than presidential or congressional elections.

It is no coincidence that laws demand stiffer requirements to appoint judicial officials than for a president or a legislator; the hope is that they are the most capable people in the country and, given that capacity, have the responsibility to flip the script on what is happening in Guatemala. The corrupt will always want to have a judge, a prosecutor, or an appellate court in their pocket. But if a country’s judges are aligned with political, economic, or mafia powers, it is because the bodies that selected them failed.

Sidney Blanco, former magistrate of the Salvadoran Constitutional Chamber, in a park in Arlington, Virginia, where he currently lives. On June 19, 2024, Blanco joined an international panel of experts dispatched to observe the Guatemalan Supreme Court of Justice and Appellate Court selections. Photo José Luis Sanz
Sidney Blanco, former magistrate of the Salvadoran Constitutional Chamber, in a park in Arlington, Virginia, where he currently lives. On June 19, 2024, Blanco joined an international panel of experts dispatched to observe the Guatemalan Supreme Court of Justice and Appellate Court selections. Photo José Luis Sanz

That is Guatemala’s current ailment. This panel hopes to convey the following international standards: that candidates have a track record of independence from any power; that they obviously have the knowledge and technical capacity; and that they completely eschew partisan ties. As citizens themselves, judges enjoy freedom of expression, and they cannot be prohibited from having an ideology, but any legal relationship to political parties would certainly be incompatible with their labor. Last, a judge must also be sensitive to human rights because their task, among others, is to safeguard them.

You have called on the public to spring into action. What kind of citizen participation do you expect in this court selection process?
I hope that Guatemalan society is aware of the importance of this moment, and that they demand transparency and public accountability. When citizens vote for their congressional representatives they are delegating the power to act on their behalf but do not relinquish their political participation, which is tied to whether their representatives satisfy their expectations. Citizens must not sit on their hands in a process like this one; they must closely monitor their representatives to ensure that their will is being followed.

I hope, for example, that citizens will ensure that the members of the Nomination Commissions have the requisite credentials and honesty. It is also important that they are present in the interviews that the commissions will conduct with the candidates, and that they see to it that the commissions’ rules are equitable so that the scoring system truly favors the best candidates. For example, citizens could say that “the weight given to experience is too high, because a candidate could have 25 years of experience but not be independent.”

Our panel will publish reports throughout the process, and we are planning at least two field visits in Guatemala to meet with civil society actors, the three branches of government, Indigenous peoples… Our job is to stimulate societal participation.

What obstacles do you expect to encounter?
I imagine some irate reactions to our statements or accusations of partiality or interference. But it should not be seen that way; every member of the panel is from Latin America, and we are interested in the democratic coexistence of our countries. The political stability of one country affects the rest. I am Salvadoran, Guatemala is our neighbor, and whatever happens there is almost as if it is happening in El Salvador. There will of course be objections to our presence, because not everyone is in line with working toward the best nominations. There are interests at play. There are those who, against the public interest and the common good, hope that impunity will continue and that the state will remain susceptible to bribery.

Will you have any coordination with the OAS observation mission?
Yes. We are already seeking to meet with their mission to exchange visions and be able to share down the line what we each observe.

Turning back to public participation, you and three of your fellow former constitutional magistrates were given a nickname from the annals of pop culture: “The Fantastic Four”. It was a reflection of the popularity you enjoyed and the public support for the protection of the Constitution. That very support shielded you from some attacks on your independence. Just five years later, in El Salvador judicial independence is dead. That citizen support turned out to be ephemeral.
Indeed. We saw the support for our work in the Constitutional Chamber in concrete instances, like the promotion in 2011 of Decree 743, which sought to force us to issue decisions solely in total unanimity. People went out to protest. Or when we empowered citizens by ruling in favor of split-party voting in congressional elections, a decision that  political participation —the vote— must not be confined to a single political party; citizens could vote directly for the candidates of their choosing, rather than marking a sole party slate on the ballot.

This and other cases created a rich jurisprudence, and citizens felt that they had something more to give beyond their vote; they could be a permanent presence. But nine or ten years are not enough to shore up a system. These are long processes. What has since occurred in El Salvador proves that the judicial system did not dig in its roots of independence.

For example, in 2009 or 2010 we established that independence is key, especially in institutions exerting control over judges, the Supreme Electoral Tribunal, the Court of Accounts, or the Attorney General. But before people could absorb that message, a populist came along hawking ideas intended to destroy that concept that had just barely begun to take root. There was no continuity. Adding to that, of course, is terror. So many judges who were once convinced that independence is their best weapon have now prioritized job stability, their families’ safety, and their own liberty. They preferred to cede independence and salvage other things.

You are saying that, today in El Salvador, judges are afraid.
Of course. Judges in El Salvador have ceded their independence to guarantee their survival. And it is a phenomenon threatening the entire region; public powers —especially the political ones— have a monopoly on the use of force and threaten any public servant intending to be independent. One of the central points of the 1992 Peace Accords in El Salvador was judicial independence, but the parties in that era did not pay it much mind, preferring to dish out quotas of influence in the Judiciary.

Sidney Blanco was forced into retirement in 2021 by the judicial purge enacted by the Nayib Bukele administration. After completing his term in the Constitutional Chamber in 2018, he had returned to being a sentencing judge in his native city of San Miguel. He left El Salvador in 2023. Photo José Luis Sanz
Sidney Blanco was forced into retirement in 2021 by the judicial purge enacted by the Nayib Bukele administration. After completing his term in the Constitutional Chamber in 2018, he had returned to being a sentencing judge in his native city of San Miguel. He left El Salvador in 2023. Photo José Luis Sanz

This is occurring in most countries.
Yes. Nominating bodies should elect and forget about the tribunals and courts, but we know that this is not the case, neither there [in Central America] nor here in the United States. This is because the nominating body tries to conserve access to the judicial official in the hopes that they will accompany political initiatives, for example. Creating public awareness is a lengthy task that cannot be completed overnight. But every day that it is put off, democratic stability is delayed.

In the vicinity of Washington alone there are some 20 exiled Guatemalan judges and prosecutors.
It is obvious that judges in Guatemala have their own reasons to be afraid. I would say the same is true of the members of the Nominating Commissions.

How do you suggest they face that fear of reprisals?
Fear is natural in the human experience; it is a warning of what could happen to you. There are times when you start weighing whether or not to defend judicial independence, such an abstract concept, with your life, or to risk your family’s wellbeing. Few are willing to do so. In recent years Guatemala has been an example of how the justice system can be used as a tool of persecution of those who have demonstrated independence and intend to do an honest job.

But what do you tell a judge or, in this case, a member of a Nominating Commission, who is facing that dilemma?
In the Salvadoran Constitutional Chamber we, too, received threats of death, firings, criminal charges, and prison time. And when those fears emerged, we decided to share them with other actors in society. When we issued stiff sentences like the unconstitutionality of the ’93 Amnesty Law, for example, we surrounded ourselves with actors like the Church, academia, unions, civil society organizations, and news organizations. We explained the arguments for our ruling. As a result, an army of citizens appeared to voice their opinions and share our reasons. That strategy worked.

A strategy of not standing alone.
Exactly. It is true that when a judge issues a ruling they are not asking for advice left and right. Sometimes decisions are also unpopular or run contrary to majority sentiment; a judge does not trade on popularity, applause, or support, but rather on judicial arguments. But once you share the basis for your decision with people, who have the ability to listen and understand, you make it possible for them to then come out in your defense.

I once espoused the old maxim that judges have nothing to say in public, that they should let their rulings do the talking. Now I am convinced of the opposite: that a judge should show their face to the press and offer explanations. And I also believe that a ruling should be so well-grounded that a judge is not afraid to explain it. When a judge avoids addressing a decision, I have come to think that it is because they are not convinced or something happened during its elaboration. The same applies for court selection processes: Those on the Nominating Commissions should be able to later make their case in public.

And yes, perhaps the commissions are also afraid, but the greatest guarantee that they can have is to be sure that if they opt for one candidate or another there is nothing undue in play. Defending their preferences in public and private can bring them stability, allowing others to resolve any doubts about possible irregularities and counteract fear. If they proceed in this fashion, society will respond and accompany them.

That seems a tad idealistic.
We must be idealists. Otherwise, it is of no use to talk of justice. There are those who believe in nothing, who think that hope and ideals do not exist. I am not one of them. I have faith that Guatemalan society will take an interest in the matter. I believe they are already doing so. Guatemala has shown us the strength that people have when they want to change the course of their country. Let’s hope that the strength does not yet run out, because sometimes people grow disappointed with the lack of immediate change. These are slow and sometimes exasperating processes. But you cannot let up, because otherwise you will have to start over. Once on track toward an ideal, you have to keep insisting.

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