UNO's Court-Packing Plan
In the three years between the adoption of Nicaragua's new Constitution and Violeta Chamorro's election, the opposition constantly called for the freshly adopted national charter's reform. Even when UNO was only a scattered collection of 14 parties seeking to dislodge the FSLN from power, they uniformly saw the Constitution as one of their most insidious obstacles.
Probably believing that they would always be on the outside looking in, those parties compiled a list of 17 constitutional reforms they said were indispensable to the emergence of a "rule of law"; the majority were also incorporated into the Chamorro campaign as inviolable precepts of good government. The most significant of these reforms were dilution of executive branch powers, establishment of a true separation and balance of powers between the various branches, autonomy and independence for the courts and the Supreme Court's ability to rule on the unconstitutionality of laws.
Following her election, however, President Chamorro stopped criticizing the strong powers the Constitution grants the executive; some, even within the UNO coalition, assert that she has systematically abused them. In her first months in office, for example, she exercised her powers largely by issuing a series of decrees. While the Constitution permits executive decrees, they are limited to fiscal and administrative issues when the National Assembly is in session—which it has been for most of the time since she took office; the reasonable assumption is that sweeping legislation such as the President decreed should be debated and approved by the legislative branch.
While it seems less hypocritical than politically realistic to take maximum advantage of such constitutional powers, especially since Chamorro cannot always count on the divided UNO bench in the National Assembly to support her bills, she wanted more; she sought to limit the Supreme Court. And in their own fashion, UNO hardliners want to limit it even more.
Chamorro vs. Supreme CourtThe Supreme Court inherited by UNO had seven members, five of whom identified with the FSLN. Because the entire bench resigned in a 1987 confrontation over the Court's authority to enforce its decrees, all seven were sworn in at the same time for the constitutionally mandated six-year term. Soon after taking office, rightwing UNO politicians began to call for the addition of eight new judges, an open political maneuver to give the Court an UNO-aligned majority. President Chamorro herself pursued two other courses of action.
First, she had her finance minister cut the Sandinista-dominated court system's already small budget to .47% of the national budget in early June. Perhaps mainly to embarrass her, the judicial branch held a two-day radio talkathon to raise funds, garnering some $200 in cash donations, plus pencils, typewriter ribbons and the like. More diplomatically embarrassing, the Supreme Courts of the five Central American countries, in a joint meeting on July 3, criticized both the Salvadoran and Nicaraguan governments for threatening the independence of their judicial branches. They resolved to urge all the region's governments to provide "at least 6% of the general budget for the administration of justice, as in the Republic of Costa Rica."
Then, on June 12 President Chamorro finally ordered the official publishing of her still secret and therefore inactivated first decree, 1-90. Among other surprises, Decree 1-90 removes the function of issuing citizen identity cards from the Supreme Electoral Council (CSE), as well as taking the public registry of real estate and individuals' civil status from the Supreme Court, depositing both in the Ministry of Government. As Barricada ominously pointed out, these and other such transfers mandated by Decree 1-90 would convert this police body into the "great vigilante" of the citizenry.
Meanwhile, infighting over the post-election size and composition of the Supreme Court intensified in June and July, though it went almost unnoticed amid widespread violent strikes and a serious internal struggle for political control of UNO.
Judicial review the keyThe fight for control of Nicaragua's Supreme Court is significant for several reasons. One is that under the Constitution the Court controls all judicial appointments, which currently include nearly 250 appellate and trial judgeships around the country. Even more important, the Constitution grants the Court the power to declare presidential or legislative acts unconstitutional, a power ironically included at the opposition parties' own insistence. A law regulating this power was adopted in early 1989 with strong support from all political quarters. It allows any citizen to bring an action challenging the constitutionality of a law or decree within a specified period after its enactment. It also permits the Court to strike down laws in their entirety, not just as they may apply to the individual challenging them.
These provisions permit the Court full and immediate review of Chamorro's aggressive program of governance by executive decree and could have resulted in a number of her decrees failing to pass constitutional muster. While there were only four challenges to the constitutionality of the FSLN-controlled government's actions during all of 1989, there are already at least eight challenges to Chamorro's decrees—including Decree 1- 90.
This power of judicial review—the authority to declare laws and decrees unconstitutional, presumably after rational and dispassionate review—is key to the concept of balance of powers and the rule of law. While firmly embedded in US constitutional law since the late 18th century, the concept is still relatively rare in this hemisphere; in fact, only 60 countries worldwide grant their judiciary this power. The reason is simple. The authority to review the actions of other branches of government and strike down those determined unlawful gives the judicial branch the power to neutralize the others. This is particularly threatening to the traditionally strong executive branch in Latin American countries that seeks to rule by force of will or arms rather than by force of reason or law. The UNO coalition, which espoused this concept before the election, apparently decided it preferred the benefit of guaranteed Supreme Court adherence to the edicts issued by its leader.
UNO's court-packing plan strikes at the heart of the principles it so stridently advocated before the election. While this opens debate as to whether UNO is as committed to preserving the rule of law as it claims, the plan is not unconstitutional; the national charter states only that there must be a minimum of seven judges on the high court.
Court-Packing Here and ThereCourt-packing to solve the problem of an unsympathetic judicial branch has been attempted in the United States as well. The US Constitution, like the Nicaraguan one, is silent as to the maximum number of justices who may occupy the Supreme Court bench. On at least two occasions, US Presidents have proposed legislation to add members. The last such attempt was made by President Franklin D. Roosevelt in 1937.
When FDR was reelected overwhelmingly in 1936, he felt he had a clear public mandate to carry out his New Deal programs for recovery from the devastating effects of the Great Depression. Yet a conservative Supreme Court struck down such aggressive social legislation as the National Recovery Act, the Agricultural Adjustment Act and the first attempts at minimum wage laws. In response, Roosevelt decided to make a frontal assault on the Supreme Court's powers. His staff considered options such as completely removing appellate jurisdiction from the Court or—given that the Court was divided five to four on most of the more important rulings—requiring more than a simple majority to invalidate a law.
Roosevelt finally settled on what his advisers saw as a palatable proposal. Essentially, the Reorganization Proposal gave every justice over seventy years old six months to retire. Those who failed to do so could continue on the Court, but the President would be empowered to appoint an additional justice, ostensibly younger and more able to carry the heavy load. Six justices were in this category; with Senate approval of his appointments, Roosevelt would immediately achieve a majority favorable to his programs.
Although Congress and the press had generally supported the New Deal programs and criticized the Court's conservatism, the idea of court-packing was emphatically rejected. The plan was condemned as "false in theory and ruinous in practice"; congressional representatives were "shocked beyond measure" and political commentator Walter Lippmann opined that "no issue so great or so deep has been raised in America since secession." Court-packing was seen, in short, as a means by which the President, however beloved, might become an "absolute dictator."
The US crisis was resolved not by legislation but by a shift in voting patterns on the Supreme Court; later in 1937, it began to approve Roosevelt's proposed reforms by the same narrow margin it had earlier rejected them. Through this direct assault on the fragile but essential powers of the Court, the importance of judicial supremacy was assimilated by the populace: the survival of the Supreme Court's institutional integrity was more important than the survival of a particular political platform, however popular. Few in the United States even today would support systematic disobedience of Supreme Court rulings, regardless of political differences with the Court and even though it has no effective means to force adherence to its rulings.
Nicaragua's Court Makes an End RunIn Nicaragua's current polarized climate, the Supreme Court could expect little such public outrage. Thus, the Court moved on its own in June to defuse the threat that UNO might double its membership. After several weeks of rumors that two Supreme Court judges were considering resigning, the Court announced through an accord of its issuance that it was reorganizing and modernizing its operations. It based its action on the Organic Law of Tribunals, passed by the Sandinista-dominated National Assembly shortly after the elections, which granted the Supreme Court the exclusive right to organize its structure or change the number of judges on its own or the appellate courts.
The Court proposed to add two new judges, bringing the total to nine. It also proposed to divide itself into chambers of three judges each, with each group to consider one specific subject area—constitutionality, criminal law or civil-agrarian law. In conformity with the Constitution, Supreme Court president Rodrigo Reyes called on President Chamorro to nominate a slate of three candidates for each of the new positions, from which the National Assembly would select the two new members.
The Court's proposal, which President Chamorro supported, was both bold and practical. In addition to taking the initiative away from the UNO hardliners, it offered a modern organizational model drawn from the structure of high courts in many other Latin American countries.
A Back-Room Deal?President Chamorro submitted her slates on June 12, but the UNO faction in the National Assembly that backs Vice President Godoy postponed the vote until early July. By July 2, the two justices had indeed resigned, making additional slates necessary. Chamorro's two new nominee lists caused the same consternation in the Godoy-faction ranks as the first two had; not one member of the rabidly rightwing Bar Association was included. The Alfredo César faction of the UNO bench, which backs President Chamorro, together with the FSLN bench elected the new magistrates; the Godoy wing abstained. According to Enrique Villagra, one of the new judges, there are now four Sandinista judges, three UNO ones and two who are politically independent, a category in which Villagra includes himself.
The Godoy faction, however, did win some points for its side. In late June, it had introduced reforms to the Organic Law of Tribunals, the key article of which would transfer the right to change the Supreme Court's size or structure to the National Assembly. Over the vehement protest of the Sandinista bench, an amended version was approved in mid-July, granting this initiative to the Supreme Court, the President or the National Assembly. Both the President and the National Assembly now have blackmail power over the Supreme Court. Another important article of the reform is that judges appointed to replace others will only fulfill what remains of their term.
While the Supreme Court was still reeling from this new blow, President Chamorro announced that she was replacing Rodrigo Reyes with Orlando Trejos Somarriba, one of the newly elected judges, as Supreme Court president. Chamorro relied on Article 163 of the Constitution, giving her the power to appoint the president "from among the judges elected by the National Assembly." That article implies, however, that the appointment occur at the time the judges are selected, not several years later. Moreover, as the deposed Reyes pointed out, another article permits removal of judges "only for reasons determined by law."
The 62-year-old Trejos was labor minister during the Luis Somoza government and later a National Assembly representative from Somoza's Liberal Party. Asked about his current political leanings, Judge Trejos calls himself a "Liberal without a surname.” FSLN daily Barricada describes him as a "lawyer and politician formed in the dissident school of Somocista liberalism.” Even Reyes said, "I am not questioning the naming of Dr. Trejos Somarriba, because, as with the other magistrates, he has the personal and professional qualities to be president of the Supreme Court.” Trejos promptly demonstrated these qualities by refusing to comment on the new court reform law, since, he said, it may become the subject of a recourse to unconstitutionality, which in September it did.
Rumors ran rampant that a back-room deal had been cut between UNO's Chamorro faction and the FSLN leadership to trade control of the Court's presidency for agreement to leave its membership at nine. The FSLN's own mild reaction to the announcement suggests that this may have been the case; Barricada did not even report Reyes' substitution for two days, and then only in a small article. One observer speculated that having a politically mixed bench with differing termination dates was in both the FSLN's and the country's interest. A later Barricada op-ed piece by former Sandinista diplomat Augusto Zamora, however, railed against such private negotiations over undisclosed ideas: "Under equal conditions, those [within the FSLN] who are opposed would have the right to defend and argue their positions.” He warned that "we must be alert so we don't end up in a democracy of the top echelons in which those of us at the bottom don't understand the game."
It is hardly likely that the Godoyistas' law reform was part of any such bargain, but they do not have the votes to push any changes in the Court through the National Assembly on their own. In any case, the Supreme Court got the last word on that round. On August 14, it issued a decision that President Chamorro's Decree 8-90, which revoked the Civil Service Law, was unconstitutional. The law, suspended by Chamorro during a major strike by state workers in May, ensures the labor rights of state employees.
The Supreme Court's decision, signed by the five remaining original judges, was reportedly made before the new judges were sworn in on July 18. La Prensa reported the day after the announcement, however, that the pro-Godoy Bar Association believed the decision to have been signed after that date and was thus issued in bad faith, although it admitted it could not prove this allegation. Since that time the newly constituted Court has declared the other pending claims of unconstitutionality unfounded, according to Judge Villagra. A constitutional expert in the National Assembly, however, says that the claim against the reform to the court organization law has not yet been considered.
In its August 15 article, La Prensa added that the Bar Association proposed increasing the number of Supreme Court judges to 12. And one of the demands of the Region V mayors who barricaded the Rama highway in November is to add two more judges. Their interest appears to be to name new hard-line district judges in their region. The government refused even to discuss this demand in negotiations with the mayors. It appears that, for the time being, there will be no additional changes in the Court.