GIA KOITA

Does Latin America Need a ‘Supra-Constitutional’ Court? Lessons from the Central American Experience

by Carlos Arturo Villagrán Sandoval, PhD Candidate at Melbourne Law School. 

Last week, on April 3rd 2017, the Permanent Council of the Organization of American States held a meeting in order to consider the recent events in Venezuela. They approved by consensus the following resolution:

‘[t]he decisions of the Supreme Court of Venezuela to suspend the powers of the National Assembly and to arrogate them to itself are inconsistent with democratic practice and constitute an alteration of the constitutional order of the Bolivarian Republic of Venezuela.’ (For the rest of the resolution see here)

The actions of the Venezuelan Supreme Court are the latest in a series of events that amount together to a constitutional disruption within the Latin American region. Similar constitutional disruptions from the judiciary are seen in the Honduran and Nicaraguan contexts. In both examples, the Supreme Court of Nicaragua, as well as the Constitutional Chamber of the Supreme Court of Honduras, has declared constitutional prohibitions, such as the prohibition of presidential re-election, to be unconstitutional. This has allowed political players, such as Daniel Ortega and Orlando Hernández to continue unchallenged and maintain a steady grip on power in their respective countries.

Since the early 20th century, Central America has been attempting to deal with the issue of executive dominance and constitutional disruptions in the region. In 20 December 1907, the Central American states signed in Washington D.C. the first treaty requiring them to not recognise coups against a democratically elected government under its constitutional procedures.1 Additionally, the treaty mentions that Central American states should promote constitutional reform in order to prohibit presidential re-election.2 In order to assure this commitment, the region created the first international court of its kind, the Central American Court of Justice, which opened its doors in 1908. This pioneer court not only had the jurisdiction to entertain disputes between Central American states, but also the competence to entertain suits brought by individuals against governments that would violate international norms.3 The Court entertained 10 cases before it closed its doors in 1918 due the Central American states unwillingness to continue contributing to its mandate.4

The Central American Court of Justice –CACJ- would not reopen its doors until 1994, after the region’s return to peace in the mid and late 1980s. During this period, a new series of constitutions in the region were enacted, many prescribing the prohibition of presidential re-election and new limits to the executive. However, for fear of new constitutional disruptions, the new CACJ adopted a new statute which enables it to review and resolve on matters of conflicts between ‘powers or fundamental organs of the states’.5 In light of this newly granted power, the Central American Court has declared itself a ‘Supranational Constitutional Court’ for the region in a series of cases.

In a first case, the regional court ruled over a dispute arising between the President of Nicaragua and the Nicaraguan Assembly, or Congress. The CACJ considered that constitutional reforms promoted by the Nicaragua Congress contradicted the principle of division of powers, the jus cogens nature of democracy and many international instruments such as the UN and OAS charters.6 As a result, the regional court found the Nicaraguan congress in violation of not only international and regional norms, but also domestic Nicaraguan public law.7

In a second case, it considered a dispute between the Salvadorian Congress and the Constitutional Chamber of the Supreme Court. The dispute considered a series of judgments by part of the constitutional chamber, which declared the election of new the Supreme Court judges by the Salvadorian Congress void.8 The regional court pronounced itself a ‘supranational constitutional tribunal’ and proceeded consequently to rule on the legality of the judgments of the Salvadorian constitutional chamber.9 Like the Nicaraguan judgment, it declared the Salvadorian Chamber to be in violation of the principle of separation of powers, the jus cogens rule of democracy, and other international and regional instruments.10

However, although the Central American Court has declared itself to be the ‘supranational constitutional court’ of the region, it has faced, and still does face, many challenges in doing so. First, states of the subregion, such as Costa Rica, which has been a stable democracy since the 1950s, and Panama, have not ratified its statute due to this provision. Also, the regional court has suffered a series of backlashes by the region’s supreme courts when acting under this competency.

As a reaction to the CACJ’s judgments, both the Nicaraguan and the Salvadorian Supreme Court have declared the CACJ’s judgments and its competence to rule over ‘conflict between powers of member’s states’ as unconstitutional. Going further, the Salvadorian Court considered that the term supranational does not mean ‘supra-constitutional’, and that the state is the only one who can determine the extent of the external incursions into its legal system.11

Against such backlashes the regional court has no actual powers to respond. Its enforcement capacity is tied to good faith of the executives and judiciaries of the region in complying with its judgments.12 Like its predecessor, it is powerless to overcome constitutional disruptions and ensure its functioning. Therefore, unless the Court is tied to a strong political forum, with the capacity to ensure the application of its judgments, it is incapable of making a difference in a region where constitution disruptions occur often.

Returning to the Venezuela case, the OAS has the capacity to intervene in moment of ‘unconstitutional alteration’.13 However, to this date the OAS has not defined by what it means by an ‘unconstitutional alteration’ and is unlikely to do so anytime soon. This is due to its political nature, by doing so it would tie its hands down for future events. However, the OAS is a strong platform for placing political pressure on the violating state.

The need arises, therefore, for a regional court, similar to the CACJ, with strong ties to the political forum, such as the OAS, and to the subregional economic integration schemes, in order to provide redress for harmful ‘unconstitutional alterations’. Only then may politics and law be effective in providing redress in a time of crisis, such as that of Venezuelan.

1. Article I of la Convención Adicional al Tratado General de Paz y Amistad, signed 20 December 1907.
2. Article III Convención Adicional al Tratado General de Paz y Amistad.
3. Article 2, Convención para el Establecimiento de una Corte de Justicia Centroamericana, signed 20 December 1907.
4. Sacha Maldonado Jordison, ‘The Central American Court of Justice: Yesterday, Today and Tomorrow’ (2009) 25 Connecticut  Journal of International Law 183, 197–198.
5.  Article 22(f) Estatuto de La Corte Centroamericana de Justicia [Statute of the Central-American Court of Justice], Opened for Signature 19 December 1992, 1821 UNTS 280 (‘CACJ Statute’).
6. File 69-01-03-01-2005 (Judgment) (Unreported, Central-American Court of Justice, 29 March 2005) [29],[39] (‘President of Nicaragua v. National Assembly of Nicaragua’).
7. Ibid [40].
8. FIle 132-09-20-06-2012 (Judgment) (Unreported, Central-American Court of Justice, 15 August 2012) 1–2 (‘Salvadorian Congress v. Constitutional Chamber of the Supreme Court of El Salvador Case’).
9. Ibid 11.
10. Ibid 9–10.
11. Inconstitucionalidad 71-2012 (Judgment) (Unreported, Sala de lo Constitucional de la Corte Suprema de Justicia de El Salvador) [13].
12. Article 26 CACJ Statute.
13. Article 20, Inter-American Democratic Charter.

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