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NICARAGUA
Depoliticizing the courts
Tim Rogers
10/28/2004
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Draft law that would open judges’ seats to competitions is seen as a top priority.

With Nicaragua’s fledgling democracy apparently in deep water, many are looking at a judicial reform measure known as the Ley de Carrera Judicial as one key rescue line.

The bill, aimed at depoliticizing the judicial branch — controlled by members of the Sandinista National Liberation Front, which governed Nicaragua from 1979 to 1990 — and reinforcing the country’s often-faulty system of checks and balances, is expected to become law by early next year.

All for an unbiased court

President Enrique Bolaños and congressional leaders have all identified the Ley de Carrera Judicial as a top priority for the country. While not a panacea for all that ails Nicaragua, the law is designed to fortify the country’s nascent democracy while improving the investment climate here.

"No one will invest here until they know their money is safe and investors need to know that if they have problems, they can appeal to an unbiased court," said Congressman Donald Lacayo, president of the National Assembly’s Judicial Commission, which is currently revising the final draft of the bill.

Foreign lending organizations, such as USAID and the United Nations Development Program (UNDP), also have come out in support of the bill. USAID went so far last September as to condition the reestablishment of US aid to the Supreme Court on passage of the law.

The 83-article bill proposes to professionalize the country’s judicial system by submitting all sitting district and municipal judges to open competitions for their judgeships. A special commission appointed by the Supreme Court would select the most qualified contestants to fill the each post.

The current draft of the bill calls for all sitting judges to compete for their jobs within six months of the law entering into force. This time frame has become a major point of contention, and the final version of the law will probably call for an incremental phasing in over the next two years, Lacayo said.

Sandinista control

Currently, Sandinista judges still control more than 80 percent of the country’s 436 lower judgeships, which are lifetime posts that were awarded to party loyalists during the 1980s.

Until three years ago, the Sandinistas also controlled the Supreme Court and the Appeals Tribunals. Now, the higher courts have several judge seats filled by members of the Liberal Constitutional Party (PLC) — a result of an infamous agreement known as the "pacto" forged in 1999 between Sandinista party boss Daniel Ortega and Liberal boss Arnoldo Alemán.

Yet despite modest Sandinista concessions in recent years, the court system in Nicaragua is seen largely as an extension of the power wielded by Ortega.

Nicaragua’s democracy, which still hasn’t celebrated its 15th birthday, is still learning to walk on its own, unsupported by Alemán on the right, and Ortega on the left.

The two party bosses exert enormous influence over Nicaragua’s ship of state, effectively orchestrating the National Assembly and — in Ortega’s case — important court decisions.

Over the last two years, Bolaños has managed to wriggle lose the executive branch from the grips of Ortega and Alemán. But Bolaños, elected president as a candidate of the PLC and now a party member of the minority Alliance for the Republic, is criticized by many pundits as being a president without a clear mandate, governing with the support of the international community rather than domestic consensus.

Institutional crisis

The result is an institutional crisis that has weakened government reforms and compromised the credibility of the judicial system.

The situation has gotten so dire in recent months, that Nicaraguan Cardinal Miguel Obando y Bravo has recently made several public calls for "an honest and sincere" national dialogue to resolve the stalemate.

Although many are banking on the Ley de Carrera Judicial to help solve the country’s institutional problems, there is little consensus over how the bill should be written.

The reform measure has undergone various partisan drafts in the last four years, more recently an executive branch rewrite that was rejected by both Sandinistas and Liberals in 2003.

The initiative then went to the National Assembly’s Judicial Commission, which was charged with developing a compromise draft that could make it through Congress.

The Sandinistas, who potentially have the most to lose from the bill, are providing the greatest opposition to the current working draft, which was penned by the Liberal-controlled Judicial Commission. The Sandinistas argue that the new version of the bill is "dictatorial" and "fascist," and violates five articles of the Constitution.

"Instead of promoting and strengthening the judiciary, the Liberal lawmakers are (attempting) to punish without due process judges and magistrates of Nicaragua, in violation of Article 34 of the Constitution that establishes the right of all citizens to due process," the Sandinistas wrote in their minority report.

Panel chief Lacayo claims the Sandinistas are afraid of losing their control over the courts so they are resorting to invented arguments about unconstitutionality.

The Liberal congressman said the law is not intended to punish Sandinista judges, but provide a tool to ensure that the best qualified individuals are awarded the posts. The Sandinistas, meanwhile, claim everything in Nicaragua is political and the Liberals are just trying to swap influence in the judicial system.

A group of Sandinista judges last March attempted to prevent Congress from even discussing the bill by filing an injunction with the Supreme Court. The Sandinista judges on the Supreme Court initially accepted the injunction, but later overruled when it was determined an injunction could not be filed against a bill.

Ironically much of the political hullabaloo surrounding the Ley de Carrera Judicial appears to be evidence of why Nicaragua needs the law.


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