San José, Costa Rica, since 1956

Critics: Ortega Creating ‘De Facto State’ in Bid for Re-election

MANAGUA – Desperate to try to legitimize Daniel Ortega’s counter-constitutional reelection bid before he officially presents his candidacy, the Sandinistas’ de facto Supreme Court ruled last week to overturn the law banning consecutive presidential reelection and ordered the de facto Sandinista-controlled Supreme Electoral Council (CSE) to accept Ortega’s 2011 presidential candidacy.

Still unable to get the 56 votes needed in the National Assembly to reform the Constitution and overturn Article 147 – the law prohibiting reelection – the Sandinista court on Sept. 30 ratified last year’s controversial resolution by Sandinista magistrates to overturn the ban based on the argument that it violates Ortega’s right to equal treatment under the law (NT, Oct. 23, 2009).

As a sweetener, the Sandinista court added the Latin phrase “erga omnes,” which in this case means that everyone can run for reelection, not just their boss.

Legal analysts are calling the latest move by the de facto court a “false ruling by an illegal court,” according to former Supreme Court president Roberto Argüello, who held the post of chief justice during the first Sandinista government in the 1980s.

Argüello told The Nica Times that the ruling was illegal on several counts. First of all, he said, the Supreme Court is illegally constituted by two ex-magistrates and Sandinista substitute judges who are replacing the opposition magistrates who continue to boycott the ruling party’s forced takeover of the judicial system.

And secondly, he said, even if the court were legally constituted, it’s not within the Supreme Court’s authority to reform the Constitution. Only the legislative National Assembly can modify the country’s magna carta, he said.

“The court has completely overstepped its bounds,” Argüello said.

He said that the two Sandinista ex-magistrates who continue to usurp seats on the high court – Rafael Solís and Armengol Cuadra should be charged criminally as imposters.

In their push for Ortega’s reelection, the Sandinistas have muddied the legal situation to new levels of murkiness in recent weeks.

 First, they reprinted a new, modified version of the Constitution last month including an old provision that expired 20 years ago.

The revived second paragraph of Law 201 says electoral and judicial magistrates as well as other administration officials whose terms in office have already expired can remain in office until replaced by the National Assembly.

The Law 201 was a transitory measure meant to maintain some semblance of institutional continuity between the outgoing revolutionary Sandinista government and the incoming administration of Violeta Chamorro in 1990. It lost legal effect when Chamorro’s government appointed its officials 20 years ago (NT, Sept. 24)

Then, using the newly printed de facto Constitution as their “legal foundation,” the de facto Supreme Court ruled to uphold Ortega’s controversial presidential decree from last January, allowing 25 magistrates and other officials to remain at their posts beyond their term limits.

So in effect, two ex-magistrates in the Supreme Court ruled that it’s legal for themselves to keep their jobs and salaries – a clear conflict of interests that analysts claim is prohibited by the Constitution.

Liberal Constitutional Party lawmaker Wilfredo Navarro, the first secretary of the National Assembly, denounced this week that the state of Nicaragua is now paying $231,500 in monthly salaries to 98 “de facto” government employees.

In addition to the two dozen magistrates and officials who remain in their jobs after their terms have expired, Ortega has also named 77 officials – including 17 ambassadors – whose appointments have not been approved by the National Assembly, as required by the Constitution, Navarro said.

But Costa Rica Does It!

The Sandinistas have tried to legitimize their de facto government by arguing that the continuance in power of former officials is in the best interest of national stability. They claim that similar legislation exists in Guatemala, Costa Rica, Peru and Spain.

“In Costa Rica, if they don’t have sufficient votes in the Legislative Assembly to remove or elect a new official, the official continues in his or her post,” said Roberto Larios, spokesman for the Sandinistas’ de facto Supreme Court.

 However, pundits note, Nicaragua is not Costa Rica, and has its own Constitution. And legal analysts claim it’s being violated repeatedly in order to justify Ortega’s reelection aspirations.

Snowballing Offenses

Former Supreme Court president Alejandro Serrano counts five major “unconstitutional moves” made by the Sandinistas in the past year to justify Ortega’s reelection and the continuance in power of his government’s officials.

“It’s a snowball where the violations of the Constitution are piling up one on top of the other,” Serrano told The Nica Times.

While the situation becomes increasingly messy with each new offense, Serrano said it’s important to continue to “point out each new constitutional violation every day.”

Other legal analysts are also shaking their heads.

“Nicaragua has lost all its institutional legitimacy and rule of law,” said constitutional analyst Gabriel Alvarez. “This has become a de facto state where government decisions are made by force.”

Alvarez said the beginning of the crisis can be traced back to the power-sharing pact formed between Ortega and former President Arnoldo Alemán a decade ago. From that point on, he said, the party bosses started to divide up the four branches of government like spoils of war, and the country began to lose its institutional integrity.

“There are still signs of Nicaragua’s institutional democracy – there are signs on buildings for the electoral council and the Supreme Court. But if you go inside those buildings, you won’t find those institutions inside,” Alvarez said.

The analyst said the Orteguista government is hardly even pretending to be legitimate. He said the arguments offered by Ortega’s officials are “crude manipulations and falsities” that don’t even approximate genuine legal arguments.

The members of Nicaragua’s feckless opposition, meanwhile, continue to alternate their  behavior between sticking their heads in the ground and flapping their arms about in alarm.

“With this illegal resolution, Ortega, as commander-in-chief of the Army and National Police, is trying to obligate them to enforce illegal resolutions, generating a de facto state in our country,” opposition lawmaker Eduardo Montealegre said this week.

Yet despite the tough words, the opposition hasn’t been able to put up even a minimal amount of resistance to Ortega’s advances, which are now gaining steam as the election year approaches.

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