MANAGUA – It has been more than three years since the National Assembly approved a law to professionalize and de-politicize the country’s Sandinista-controlled court system, but critics say judges are still being used like chess pieces in a political power struggle.
Though the legislature approved the Ley de Carrera Judicial in November 2004 to institutionalize a merit-based system to replace the existing practice of appointing judges based on political loyalties, the reform still hasn’t been implemented.
The Supreme Court of Justice, which is in charge of setting the rules for implementing the law, has yet to do so. Frustrated by the delay, a group of lawyers and judges marched on Managua Jan. 9 to demand that the Supreme Court stop stalling the law’s implementation.
The situation of legal limbo has allowed would-be opponents of the law to wash their hands of it.
“It’s in the hands of the courts, now,” said head Sandinista legislator Edwin Castro.
The problem, analysts note, is that the heavily partisan Supreme Court is now charged with implementing a law that would weaken party control over the courts, and the Sandinistas, who control some 80% of the lower judgeships, have the most to lose.
The Supreme Court, which is made up Sandinista and Liberal judges, has been discussing the law’s implementation for a year, but hasn’t been able to agree on most of the articles. And with the country in an institutional gridlock at the moment, the law’s immediate future isn’t looking too bright.
“It all depends on the political will of the magistrates,” said Supreme Court spokesman Mameli Ferreti. “Though there’s pressure from the judges to approve it, you know how the political conflict is right now. It has us in a crisis.”
For many, the law’s delay is a letdown after seven years of deliberation and revision in the National Assembly.
“It’s something that has received a lot of attention,” said Liberal lawmaker José Pallais, president of the National Assembly’s Judicial Commission.
Pallais said the reform is crucial, “So that the judges can’t just be changed, so they receive an independent evaluation, and so there aren’t any political punishments.”
The law is what many reformers view as a long overdue attempt to give the courts more autonomy and strengthen the institutional separation of powers.
International observers agree it’s a critical reform for the country’s fledgling democracy, and would be a major step forward in strengthening democratic governance in a country that spent the better part of the last couple centuries in a state of war or under dictatorship.
Unruly Rule of Law
Since Ortega took office in January 2007, he has been accused repeatedly of using his party’s sway in the courts to trump his foes in political disputes.
In December, a decision by the Sandinista magistrates of the Constitutional Chamber of the Supreme Court to uphold Ortega’s controversial Councils of Citizen Power (CPCs), which had been voted down by the National Assembly, drew harsh criticism from human-rights groups and opposition parties.
Opposition lawmakers decried the tagteam effort by Ortega and Supreme Court as an infringement upon the separation of powers, and promptly banned together to form “the bloc against dictatorship” (NT, Dec. 14).
The Sandinista-controlled Appeals Court, in turn, lashed out against former President and opposition leader Arnoldo Alemán for his disobedience by ruling days later to uphold his 20-year prison sentence for corruption and to tighten the terms of his house arrest.
The Sandinista offensive in the courts didn’t stop there.
Earlier this month, a Sandinista judge who was recently filmed entering Ortega’s headquarters stripped opposition political leader Eduardo Montealegre, of the Nicaraguan Liberal Alliance, of his right to privacy under the banking law.
The judge’s decision, made as part of a corruption probe into a scandalous 2001 banking bailout, has Montealegre crying foul.
Montealegre, who last week was summoned before the Sandinista controlled Prosecutors’ Office to testify on his alleged role in the banking scandal, said Ortega is disrespecting the separation of powers in Nicaragua, and that the institutional crisis will continue so long as Ortega continues to “use the judicial power to interfere in legislative power.”
Opposition legislators are now trying to push an amnesty reform through to protect both Montealegre and Alemán – the heads of the two biggest opposition parties.
Congressman Pallais said that the amnesty will protect the opposition politicians from the grasps of Sandinista judges and thereby prevent Ortega from using the courts “to extort opposition leaders.”
When the Sandinista National Liberation Front first came to power through revolution in 1979, they inherited a shell of a country and had to rebuild the entire government, including the judicial system. So at the time, every judgeship in the country was occupied by a Sandinista loyalist.
Until six years ago, the Sandinistas still controlled the Supreme Court and all the appeals tribunals. But that changed in 2001, when Ortega and Alemán divided up the seats of the Supreme Court and the Managua Appeals Court (TAM) as part of their original powersharing pact, or “el pacto.”
Yet despite modest Sandinista concessions in recent years, the court system in Nicaragua is still largely influenced by Ortega.
The murder conviction and subsequent politically orchestrated liberation last month of U.S. citizen Eric Volz, Pallais said, is just “one more case”proving Nicaragua’s judicial systemis flawed (see separate story on Page 5).
The Nicaraguan judicial system of today, a byproduct of the revolutionary government that stepped down in 1990, has been chided as corrupt and politically influenced for the last decade by the U.S. State Department in its annual Report on Human Rights.
“Many judicial appointments were made based on nepotism, influence, or political affiliation. Once appointed, many judges were subject to political and economic pressures that affected their judicial independence,” said the most recent report, released in 2007.
The political nature of the courts is one of several critiques the U.S. report makes on Nicaragua’s justice system. Topping the list is the lack of an effective system of civil law.
“Private litigants often filed their cases as criminal complaints to force one party to concede to the party with more influence over the judge, rather than face the prospect of detention in jail,” the report found. “This civil-based criminal caseload diverted resources from an overburdened prosecutor’s office.”
The U.S. government says it’s committed to helping to improve the situation.
Last year the United States provided $3.3 million in judicial training and arbitration centers around Nicaragua. The U.S. funds, part of a larger $8 million project to strengthen democracy here, were allocated to public and non-governmental organizations with arbitration centers and training programs for law students.
Seven Years In The Making
Despite the obstacles, many are still reserving hope for the Ley de Carrera Judicial.
The judicial reform went through many partisan drafts over the last seven years, and it bounced back and forth between the executive and judicial branches several times before being approved in its final version.
Under the law, all district and municipal judges would be subject to an open competition of qualified applicants in order to keep their jobs.
Candidates for judgeships would be required to have 10 years of professional experience, and would have to go through a formal application process that includes exams.
The Supreme Court would form a special council to approve all new magistrates.
Cesar Zamora, president of the Nicaraguan- American Chamber of Commerce, told The Nica Times that he views the Ley de Carrera Judicial as “fundamental” to ensuring institutional stability.
Although he laments that the bill hasn’t been implemented for three years, he said that it will hopefully happen within the next six months before the country once again becomes distracted by another electoral cycle.
“These next months will be crucial,” he said.
Tim Rogers contributed to this report.