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In the end, four unlikely heroes prevailed. Four of the five magistrates of the constitutional chamber of the supreme court won the institutional tug-of-war which pitted them against parties of all creeds in the legislative assembly and President Mauricio Funes. The legislative assembly voted on 27 July to repeal Decree 743, the highly controversial law which stipulated that rulings by the constitutional chamber must be unanimous [RC-11-07].
The decision is a testament to the growing strength in El Salvador of civil society groups, which threw their weight behind the so-called “fabulous four”. It also strengthens the concept of judicial independence in the country beyond a mere rhetorical commitment and, by extension, buttresses El Salvador’s young democracy.
The two main powerbrokers in the legislative assembly - the right-wing Alianza Republicana Nacionalista (Arena) and the left-wing Frente Farabundo Martí para la Liberación Nacional (FMLN) - had flip-flopped about their positions on the decree ever since it was rushed through on 2 June with Arena support. The refusal of the magistrates to accept the validity of the decree, coupled with the strength of opposition from civil society groups and from abroad (the UN Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, warned that the decree was “an affront to the principles of separation of powers and independence of the judiciary”) eventually persuaded both parties that they had no choice but to repeal it.
The FMLN had been holding out for a qualified repeal, which would have provided the obligation of unanimity in the constitutional chamber when declaring the inapplicability of a law, but Arena insisted that this condition too should be removed.
The motion to repeal the decree was passed with 57 of the 84 votes in the legislative assembly. The right-wing Partido de Conciliación Nacional (PCN), a deeply ironical party name given that it dreamt up the original decree, and the Arena offshoot Gran Alianza por la Unidad Nacional (Gana) did not participate in the vote, except for one Gana deputy, Guillermo Gallegos, the sole deputy to vote against repealing the decree. The status quo ante will be restored as soon as President Funes signs the latest vote into law.
In addition to the FMLN and Arena, the two deputies for the Partido Demócrata Cristiano (PDC) also voted to repeal the decree, as did the independent deputy, Orlando Arévalo. Separately, the supreme electoral tribunal (TSE) has registered Arévalo’s centre-right party Partido Popular (PP). Arévalo was expelled from the Partido de Conciliación Nacional (PCN) after the last presidential election campaign in 2009 for “acting against the party’s interests” - specifically for objecting to the PCN’s decision to withdraw its candidate, Tomás Chévez, from the race.
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