Judiciary Reform: Chapultepec Peace Agreement

MEXICO AGREEMENT (27 April 1991)

II. Judicial system and human rights

1. Agreements on constitutional reforms designed to improve significant aspects of the judicial system and establish mechanisms for safeguarding human rights, such as:

a. Reorganization of the Supreme Court of Justice and a new procedure for the election of Supreme Court judges. Henceforth, a two-thirds majority of deputies elected to the Legislative Assembly shall be required to elect judges to the Supreme Court of Justice.

b. An annual allocation from the State budget to the judiciary amounting to no less than 6 per cent of current income.

c. Creation of the post of a National Counsel for the Defence of Human Rights, whose primary function shall be to promote and ensure respect for human rights.

d. Election of the Attorney-General of the Republic, the Chief State Counsel and the National Counsel for the Defence of Human Rights by a two-thirds majority of deputies elected to the Legislative Assembly.

2. Other issues raised in the negotiations were referred to secondary legislation and to other political agreements. Although the set of political agreements on the judicial system envisaged by the Parties in the Caracas Agenda has still to be negotiated, the following agreements have been reached during the current round:

a. National Council of the Judiciary
Agreement has been reached to restructure the National Council of the Judiciary so that its composition guarantees its independence from the organs of State and from political parties and its membership includes not only judges but also sectors of society not directly connected with the administration of justice.

b. Judicial Training School
The National Council of the Judiciary shall be responsible for organizing and operating the Judicial Training School, whose purpose shall be to ensure a steady improvement in the professional training of judges and other judicial officials.

c. Career judicial service
The secondary legislation shall contain provisions to ensure that admission to the career judicial service is based on mechanisms guaranteeing objective selection, equal opportunities for all candidates and the selection of the best-qualified candidates. Such mechanisms shall include competitive examinations and attendance at the Judicial Training School.
Political agreements elaborating on the constitutional reform
With a view to elaborating on some of the aspects which the agreed constitutional reform refers to secondary legislation, the Parties have agreed to the following:

A. Judicial system

a. Supreme Court of Justice
For the purposes of the appointment of judges to the Supreme Court of Justice as envisaged in the constitutional reform, the National Council of the Judiciary shall keep a list of 60 candidates representative of the main schools of legal thought, which shall be renewed after each election of judges. Thirty of the candidates shall be nominated by the lawyers associations of the different regions of the country.

b. National Council of the Judiciary
Agreement has been reached to restructure the National Council of the Judiciary as follows:

1. The composition of the National Council of the Judiciary shall be such as to guarantee its independence from the organs of State and from political parties, and to ensure as far as possible that its membership includes not only judges but also representatives of sectors of society not directly connected with the administration of justice. The act regulating the National Council of the Judiciary shall be amended to bring it into line with the provisions of this Agreement within 90 days following ratification of the constitutional reform by the Legislative Assembly whose term begins on 1 May 1991. A new National Council of the Judiciary shall be elected within 90 days following approval of that legislative reform.

2. The National Council of the Judiciary shall be responsible for organizing and operating the Judicial Training School, whose purpose shall be to ensure a steady improvement in the professional training of judges and other judicial officials and of members of the Office of the Attorney-General of the Republic; to investigate the country's judicial problems and promote solutions thereto; and to foster greater bonds of solidarity among members of the judiciary and a coherent overall vision of the function of the judiciary in a democratic State.

c. Career judicial service
The secondary legislation on the career judicial service shall satisfy the following requirements:

1. The secondary legislation shall contain provisions to ensure that admission to the career judicial service is based on mechanisms guaranteeing objective selection, equal opportunities for all candidates and the selection of the best-qualified candidates. Such mechanisms shall include competitive examinations and attendance at the Judicial Training School.

2. Candidates shall be admitted to the career judicial service only if they fulfil the admission requirements established by law.

CHAPULTEPEC AGREEMENT (16 January 1992)

Chapter III: Judicial System

1. National Council of the Judiciary

A. The Parties reaffirm that, as already agreed in the Mexico Agreements, the composition of the National Council of the Judiciary shall be such as to guarantee its independence from the organs of the State and from political parties and its membership shall, as far as possible, include not only judges but also sectors of society not directly connected with the administration of justice. In accordance with the New York Agreement, they refer the matter to COPAZ to prepare the corresponding preliminary legislative draft.

B. Judicial Training School

a. Pursuant to the Mexico Agreements, the preliminary draft referred to in the preceding paragraph shall include provisions regulating the Judicial Training School, which shall function under the responsibility of the National Council of the Judiciary and whose purpose shall be to ensure a steady improvement in the professional training of judges and other judicial officials and of members of the Office of the Attorney-General of the Republic; to investigate the country's judicial problems and promote solutions thereto; and to foster greater bonds of solidarity among members of the judiciary and a coherent overall vision of the function of the judiciary in a democratic State.

b. The rules for the administration and organization of the Judicial Training School shall be such as to ensure its academic independence and its openness to the various schools of legal thought.

2. Office of the National Counsel for the Defence of Human Rights

A. The National Counsel for the Defence of Human Rights shall be appointed within 90 days following the entry into force of the constitutional reform resulting from the Mexico Agreements.

B. COPAZ shall be entrusted with preparing the preliminary bill organizing the Office of the National Counsel for the Defence of Human Rights.

C. The preliminary bill shall establish appropriate means for putting into effect the firm commitment assumed by the Parties in the course of the negotiations to identify and eradicate any groups which engage in a systematic practice of human rights violations, in particular, arbitrary arrests, abductions and summary executions, as well as other attempts on the liberty, integrity and security of persons. This includes the commitment to identify and, where appropriate, abolish and dismantle any clandestine jail or place of detention. In any event, the Parties agree to give top priority to the investigation of such cases, under ONUSAL verification.

Implementation History

1992

Intermediate Implementation

The majority of constitutional reforms required to enact judiciary reform were made, but delays on secondary legislation prevented the full implementation of the new judicial system.1

 The judiciary began to receive 6% of the State budget and a career judicial service was set up, with measures to ensure stability and independence. Military courts were confined to trying crimes perpetrated by members of the FAES in active duty only.2 The judicial system as a whole remained largely unable to ensure due legal process and hold human rights violators accountable.3 Institutions of Judiciary were in place as required by the accord, but effectiveness of the system was the main concern.

  • 1. “Report of the Secretary-General on the United Nations Observer Mission in El Salvador," United Nations Security Council (S/24833), November 23, 1992.
  • 2. “Report of the Director of the Human Rights Division of ONUSAL,” United Nations Security Council (S/24066), June 5, 1992.
  • 3. “Situation of human rights in El Salvador,” United Nations General Assembly (A/47/596), November 13, 1992.
1993

Intermediate Implementation

The Ministry of Justice promoted a national legal reform plan to improve the capacity and credibility of the judicial system, but ONUSAL was dissatisfied with the lack of progress in practice. Positive reforms were made in instituting a consistent norm of habeas corpus proceedings, but the remedy remained ineffective overall.4 Multiple legislative initiatives regarding the administration of justice mandated by the Peace Agreements, the Commission on the Truth and the Human Rights Division were not adopted. The Supreme Court of Justice handled some cases of derelict judges, but many of the proceedings did not lead to appropriate corrective action.5

  • 4. “Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador up to 30 April 1993,” United Nations General Assembly / Security Council (A/47/968 S/26033), July 2, 1993.
  • 5. “Ninth report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL),” United Nations General Assembly / Security Council (A/49/59 S/1994/47), January 18, 1994.
1994

Intermediate Implementation

The Ministry of Justice submitted a bill to the Legislative Assembly that affords prisoners basic human rights in compliance with international standards.6 ONUSAL contended that the main source of human rights abuses was impunity, which stems from a weak justice system. The Legislative Assembly had the task of appointing new members of the Supreme Court of Justice when the prior court’s term ended on 30 June 1994. The Commission on the Truth had recommended that the Legislative Assembly pass constitutional reforms that would decentralize the judiciary, but it did not do so.7

The ONUSAL Human Rights Division pushed for an overhaul of the penal system, including several high-level reforms to the judiciary, in order to bring the system into conformity with internationally recognized standards.8

  • 6. “Tenth report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador,” United Nations General Assembly / Security Council (A/49/116 S/1994/385), April 5, 1994.
  • 7. “Eleventh Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (1 March – 30 June 1994),” United Nations General Assembly / Security Council (A/49/281 S/1994/8861994), July 28, 1994.
  • 8. “Twelfth Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL) (1 July – 30 September 1994),” United Nations General Assembly / Security Council (A/49/585 S/1994/1220), October 31, 1994.
1995

Intermediate Implementation

The new Supreme Court of Justice began to modernize and purify the judiciary, as recommended by the Commission on the Truth and ONUSAL. The Court stopped short of complying with the recommendations to decentralize, however. By the time of the last report by the ONUSAL Human Rights Division, the National Council of the Judiciary was not developed into the empowered independent body envisioned in the Peace Agreements and the recommendations of the Commission on the Truth. At the same time, the Judicial Training School had not enacted selection criteria that would adequately implement the Peace Agreements, and reforms had not been made to curtail arbitrary detention, pre-trial detention and punishment.9

MINUSAL later confirmed that the Legislative Assembly failed to pass a number of required reforms by the end of the year, let alone the 31 October 1995 deadline. Stalled reforms included the criminal code, penitentiary law, repeal of the 1996 police law, and guarantees of due process.10

The Supreme Court of Justice contemplated creating special courts with anonymous judges to hear cases of alleged crimes detailed in the report of the Commission on the Truth.11

  • 9. “Thirteenth Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL),” United Nations General Assembly / Security Council (A/49/888 S/1995/281), April 18, 1995.
  • 10. “Mission of the United Nations in El Salvador: Report of the Secretary-General,” United Nations General Assembly (A/50/935), April 23, 1996.
  • 11. “El Salvador considers special courts,” United Press Internaitonal, February 14, 1995.
1996

Intermediate Implementation

The Supreme Court continued to make improvements in the judiciary. Issues addressed include professional ethics, delays in the judicial process, prison overpopulation, defendants’ legal counsel, and the vetting of lower judges.12

In response to public outcry, the Legislative Assembly passed an emergency crime law, which had the effect of undermining some judicial reforms prescribed by the Peace Agreement and the Commission on the Truth, especially due process.13 In December 1996, the Legislative Assembly approved the Code of Criminal Procedure aimed to improve the judicary.14

  • 12. “Mission of the United Nations in El Salvador: Report of the Secretary-General,” United Nations General Assembly (A/50/935), April 23, 1996.
  • 13. “Mission of the United Nations in El Salvador: Report of the Secretary-General,” United Nations General Assembly (A/50/935), April 23, 1996.
  • 14. “Assessment of the Peace Process in El Salvador: Report of the Secretary-General,” United Nations General Assembly (A/51/917), July 1, 1997.
1997

Intermediate Implementation

Despite the important structural reforms to the judiciary, the system was inefficient and lacked adequate capacity to continuously vet judges and officials.15

  • 15. “Assessment of the Peace Process in El Salvador: Report of the Secretary-General,” United Nations General Assembly (A/51/917), July 1, 1997.
1998

Intermediate Implementation

Judiciary reform took place when constitutional revisions were made in 1992. Nevertheless, there were issues related to the judicial reforms recommended by the Commission on the Truth, which was not fully implemented (Source: Amnesty International.16

  • 16. “El Salvador: 10th anniversary of Peace Accords, still no justice for victims of human rights violations,” AI Index AMR (29/001/2002), January 16, 2002.
1999

Intermediate Implementation

No further developments observed.

2000

Intermediate Implementation

No further developments observed.

2001

Intermediate Implementation

No further developments observed.