Court Resolution Curtails Access to Information and Hinders Advancements in Transparency

Blogpost

Magistrates of the Constitutional Chamber of El Salvador’s Supreme Court recently executed a masterful bait and switch, issuing a controversial ruling that simultaneously forces the current leftist Farabundo Martí National Liberation Front (FMLN) presidential administration to publicize politically-sensitive material while undermining past and future public access to information. Social movement and legal organizations have decried the ruling as “extremely damaging” and an “evident setback for advances that have been made in terms of access to information.”

The Institute for Public Access to Information (IAIP) is a public institution created in 2013 by former president Mauricio Funes tasked with guaranteeing citizen access to governmental data and ensuring that public institutions fulfill the requirements mandated by El Salvador’s new Public Access to Information Law. In 2014, the IAIP received a request from a private citizen demanding that the Office of the President publicize all of the travel expenditures and itineraries for former president Mauricio Funes, the first FMLN president, as well as for former first lady Vanda Pignato and for international guests who visited the country during the period of his presidency (2009-2014).

Initially, the Office of the President denied the request on the grounds that information was classified as it was pertinent to national security. The IAIP upheld this rationale and denied the request. Appealing the denial, the case eventually made it to the Supreme Court, where, in 2016, the court overturned the IAIP´s resolution and demanded that the Cerén Administration publicize the requested information. The Administration complied and published information regarding presidential flights dating back to 1989 through 2014 and has continued to make this information available during the current administration.

The plaintiffs, however, were unsatisfied and returned to the court, where they argued that the information was incomplete because it did not include cost of flights, itineraries of meetings the president held, or the same information for international guests or the former first lady.

In October, the Constitutional Chamber issued its decision, stating that the Administration had not complied with the initial ruling and ordering the President’s Office and the Court of Accounts, similar to the U.S. Government Accountability Office, to publicize budgets and expenditures for President Funes’ trips, including summaries of expenses and amenities for international guests and the former first lady.

The case has been controversial, testing the extent to which the government can simultaneously comply with transparency laws and protect sensitive information. But what caused the most public uproar was a series of additional stipulations that the Chamber issued when delivering its ruling against the Administration. The Chamber named a number of exemptions for government compliance with access to information.

First, the court ruled that government institutions can deny requests if it determines that the information requested is “not of public interest.” Second, the ruling gives government officials the option to deny a request that they determine represents a deliberate interest to obstruct the institution’s work and function. Finally, the court stated that government institutions are no longer required to make information from previous administrations public.

Herminia Funes, a commissioner for the IAIP, criticized the ruling, saying, “We are thoroughly concerned with these types of resolutions because they don’t just harm the Institute, they harm the country. I think they will take us away from complying with international norms to which the country subscribes.”

Social movement and civil society organizations widely denounced the Court’s decision for undermining the IAIP and giving far too much discretionary power to government officials, thus rolling back progress that has been made under the FMLN in terms of transparency and accountability. As Loyla Robles, who heads the Transparency Department at the Foundation for the Study and Application of Rights (FESPAD) explained, “The Public Access to Information Law expressly states that if the information has not yet been made available, it’s the institution’s obligation to generate it. The chamber’s ruling says the exact opposite, that if the information hasn’t already been processed, the institution is under no obligation to do so, which violates the good faith principle on which public officials should act.”

Ironically, in 2016, magistrates from the Constitutional Chamber themselves denied a request for public information regarding a meeting held with leading right-wing media outlets following a series of controversial resolutions in which they blocked government access to $900 million in bonds directed at security and social programs and froze a new energy tax to invest in wind and solar.

Furthermore, the Constitutional Chamber’s stipulation that government offices are no longer required to publicize information regarding past administrations is a major blow to ongoing investigations into corruption that took place during right-wing ARENA administrations spanning from 1989 to 2009, including over 150 cases that have been presented to the Attorney General that he has yet to investigate. The Chamber’s unsolicited interpretation also raises serious concerns that the Chamber’s actions are politically-motivated, protecting members of the ARENA party from investigation or prosecution.

These additional stipulations have become characteristic of the Chamber and are a prime example of the type of judicial overstep that has unilaterally altered El Salvador’s system of governance for the benefit of specific economic and political interests.

In recent years, social movement organizations have repeatedly accused the magistrates of abuse of power and taken to the streets to call for their resignation. The Inter-American Commission on Human Rights (IACHR)recently admitted several cases against the magistrates, one brought by 30 substitute legislative deputies who were summarily deposed from their positions in 2016, one brought by the former president of the Supreme Court, Salomon Padilla, and one brought by a former Magistrate of the country’s Supreme Electoral Tribunal (TSE), Ulises Rivas, both of whom were deposed on the grounds of supposed political affiliation, which the Chamber outlawed in 2014.

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