A Test of Judicial Authority

September 25, 2007

A good indicator of the independence and effectiveness of the Supreme Court is the nature of its judicial review rulings, and the degree of compliance with them. Although on one important occasion, the UNO led legislature refused to submit to a Court ruling [see "Who Controls the National Assembly?"], the Court has passed a crucial test of its authority over the Executive. In 1991, the Court found that two key clauses of presidential decree 11-90, which set up an authority to review property confiscations, were unconstitutional on the grounds that powers constitutionally allocated to the judiciary were improperly given to an administrative agency. The substance of the ruling was that the agency designed to evaluate claims concerning the return of properties confiscated by the Sandinista government could not make accusations of wrongful ownership, pass judgement on the charge, and order a property transfer. Judgements, the Court ruled, were properly the purview of the courts.

The ruling on Decree 11-90 met with a mixed response. "The Executive immediately announced that it supported the decision of the Supreme Court," reported an UNO appointee to the Court. "It was very respectful, declaring publicly that it had no alternative other than to accept [the ruling], and so it did out of respect for the Supreme Court and judicial power."'

Within the Assembly, the Sandinistas welcomed the ruling since it rendered Decree 11-90 impotent and thus helped to preserve the property allocation their government had fostered. But the UNO majority subsequently passed a property law which included an article similar to the one ruled unconstitutional by the Court. The new law won the unanimous backing of UNO representatives in the National Assembly. The Sandinista representatives staged a walkout rather than participate in debates on the law, which the FSLN viewed as blatantly unconstitutional. In September, Chamorro supported the Sandinista position, issuing a veto of 17 articles and one full chapter of the new law, largely on the basis that these portions of the law violated the constitutional division of powers.

Although the National Assembly seemed primed to override her veto, which requires only 50% plus one extra vote in the National Assembly, legislators chose instead to redraft the law. Drafting a version of the text which the President would be politically capable of implementing seemed less risky than a showdown in the Court. The case, however, raises enormous political questions about the viability of the Sandinista model of democracy and its extension into the post-Sandinista period. The FSLN increasingly opts for a liberal model of democracy one person, one vote-in the political arena, but sticks to socialist democracy-to each according to his/her needs-in the social and economic spheres. The property law conflict is perhaps the clearest expression of the parties' differing conceptions of democracy. In the absence of negotiated agreements between the Sandinistas and the UNO about property rights, any such law seems destined to be challenged on constitutional grounds. 1. Interview with an UNO appointee to the Court, Managua, August, 1991.



Read the rest of NACLA's Sept/Oct 1993 issue: "Peril And Promise: The New Democracy in Latin America."

Tags: Nicaragua, democratization, Sandinistas, politics, judiciary

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