The Constitutional Chamber establishes that the President may declare states of emergency only when the Assembly finds it “really and materially impossible to meet”
“In the Republic they rule what is established in the Constitution and the laws, and not the discretion or arbitrariness of the ruler”. With this phrase the magistrates of the Constitutional Chamber of the Supreme Court of Justice practically set a precedent of “never again” to arbitrariness and impositions whenever they govern states of emergency in El Salvador.
They also established once and for all when the President of the Republic can declare a state of emergency for himself and before him.
“The declaration of emergency by the President of the Republic is only constitutionally admissible when it is impossible for the Legislative Assembly to actually and materially meet,” but it must meet a requirement: “For such a declaration to be valid, it is a necessary condition that the President report immediately to the Legislative Assembly, ”says the ruling.
They immediately warn that “any other way to carry out this declaration of the state of emergency is unconstitutional.”
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According to the Constitutional Court, “it constitutes fraud to the Constitution that, by means of the emergency, the essential nucleus of the fundamental rights of the inhabitants subject to an exception regime is affected, since this cannot be done even by the law that regulates the emergency, much less by executive decrees that develop it by way of referral. “
The judges of the highest court stated the above by declaring the presidential decrees and other compulsory domiciliary quarantine laws issued unconstitutional.to emergency due to the COVID-19 pandemic and that they have given way to abuses such as illegal arrests of people, who have been sent to detention centers for up to months.
Although such decrees were declared unconstitutional, the Chamber has given four days for the Presidency and the Legislative Assembly to issue a quarantine law that protects Salvadorans, but does not allow abuses of authority to be committed.
The magistrates put one more padlock: the president cannot impose an executive decree alleging that he did it only because the deputies were not meeting at that time, as happened in mid-May to extend the mandatory quarantine and that it was qualified as a usurpation of functions , even by the Attorney General of the Republic. “The legal provisions cannot be acted or interpreted as if the public officials of a constitutional body were permanently in the physical place where they carry out their duties. But, it can be expected that, when the urgency and its constitutional duties to protect fundamental rights so require, they will be present to him as soon as possible, even if this means doing so on days and hours of rest.
“Not being together,” says the ruling, is only equivalent to not being able to meet for reasons of force majeure or fortuitous event, in such a way that these assumptions make it materially impossible for the Legislative Assembly to meet to adopt a decision, after having exhausted all the possibilities for it.
The Chamber sets a parameter for the Presidency and the Assembly so that they do not make the same mistakes: “For a regime of exception not to equal a regime of abuses and violations of the fundamental rights of the human person, it is necessary that the State , and especially the Executive Branch —which concentrates the most power during it—, keep a strict adherence to the principle of legality “.
To achieve this, they must “strictly adhere to the constitutional standards made up of the Constitution and constitutional jurisprudence; the subjection to the International Law of Human Rights – including the international norms on states of emergency— ”.
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If it is an exceptional regime caused by war, invasion or some other warlike event, the authorities must abide by International Humanitarian Law, so that they always govern, among other norms, the prohibition of torture, cruel, inhuman and degrading treatment. says the ruling.
Emergency must not be a pretext to cancel transparency
The Chamber explains that the declaration of a state of emergency represents an authorization to exempt certain legal rules contained in other regulatory bodies, such as in the case of direct contracting to which the
Public Administration Procurement and Contracting Law (LACAP). But this implies the duty to guarantee transparency and citizen control and institutional (direct contracting is also governed by the principle of maximum publicity, but control is more difficult in it), maximizing probity and preventing corruption.
The Chamber emphasizes that freedom of information “aims to ensure the publication or disclosure, with objective respect for the truth, of facts with public relevance, which allow people to know the situation in which their existence unfolds, so that, in As many members of the community, they can make free decisions, duly informed ”.
In this sense, it stresses that in order to express oneself freely and to inform or inform others, it is necessary to guarantee access to public information.
“The right of access to public information consists of the power to request or require the information under control or in the hands of the State, with the correlative duty of the State to guarantee its timely delivery or justify the impossibility of access,” he recalled.
JUDGMENT CRITERIA
“It constitutes fraud to the Constitution that, through the emergency, the essential nucleus of the fundamental rights of the inhabitants subject to a regime of exception are affected, since this cannot be done even by the law that regulates the emergency, much less by executive decrees ”.
“The adoption of an exception regime by the Legislative Assembly or the Council of Ministers, where appropriate, cannot, under any circumstances, imply a blank clearance … under the margin of excessive discretion.”
“The freedoms of expression and information play a relevant role in the interaction between justification, control and democracy, since they are rights that allow critical and dissident voices on the handling of public issues to inform themselves and make themselves heard” (Judgment of the 8 of June).
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