June 17th 2011
Tortilla con Sal : There has been controversy over the legal background to the candidacy of President Ortega in the elections of November this year. Could you summarize the legal context for us?
Dra. Alba Luz Ramos : In February 1996, the Supreme Court of Justice issued three judgements in relation to three appeals regarding Law 192, a partial reform of the political Constitution, that had been made by people affected by some prohibitions established in that law. So the Court in those three judgements of the 21st, 22nd and 23rd of February 1996 laid down that it was an exclusive faculty of the Electoral Power, the Supreme Electoral Council to deal with everything relating to those prohibitions in the political Constitution. Everything relating to electoral matters, the Court said was of the competence of the Supreme Electoral Council.
Based on that judgement, the President and the Mayors went to the Electoral Council and asked it to clarify Article 147 of the Constitution relating to a prohibition applicable to some Nicaraguan citizens, like the President, the Vice President, the Mayors and the deputy Mayors. Something that did not affect members of the National Assembly or the Central American Parliament.
So, in a world of equals, of citizens with equal rights to be elected some were discriminated against and some were not. Some were forbidden from being re-elected and others were free to be re-elected which led the appellants to seek a clarification of that prohibition established in the constitutional reform of 1995. In other words, that prohibition was not in the original Nicaraguan Constitution, the Constitution of 1987 which is the last National Constituent Assembly we had, the most recent originating Constituent Assembly held by us in Nicaragua.
All the other Constituent instances are derivative instances that made partial reforms to the Constitution. So the Supreme Electoral Council told them that in that moment they could not clarify that Article because they were not engaged then in an electoral process. Since that resolution by the Electoral Council is an administrative one, the appellants decided to resort to the Court for the Court to make clear whether that Article was in accordance with the other constitutional dispositions and above all with the original dispositions of the 1987 Constitution.
It is on that basis that the Court, or rather the Constitutional Division of the Court, in its judgement No. 504 of October 19th 2009, ruled that the original Constitution had not established that restriction for Mayors, Deputy Mayors, nor for the President or the Vice-President of the Republic and therefore, based on constitutional doctrine, the derived constituent instance could not have gone beyond what was laid out in the original constituent instance by establishing a restriction that damaged fundamental constitutional principles like the right to elect and be elected or the principle of equality before the law. Because it established a discrimination between one group of citizens, of equals, and left them in unequal conditions being among that same group of citizens with the right to be elected.
Even so, the reformers removed that right for some people under certain circumstances while maintaining it for other people under those same circumstances and so violating the principle of equality that is established in a fundamental way as part of the fundamental rights in our original Constitution of 1987. For that reason, an antinomy arose that had to be resolved in favour of those fundamental principles established by the original Constitution based on German constitutional doctrine, a doctrine used by other countries too in order to resolve similar cases, as happened in Colombia and in Costa Rica in similar cases over prohibitions on re-election. Such was the fundamental basis of the judgement that was made. And the ruling does not derogate that article nor does it reform the Constitution as has been alleged because what the relevant Law of Recourse does is to declare that article inapplicable because there exists an antinomy between two constitutional principles.
On the other hand, nor is this the first time that the Court has ruled on such constitutional antinomies. Other earlier rulings exist where the Court has ruled on antinomies. In a judgement of 2007, the Court ruled there was an antinomy between Article 138 of the Constitution and Article 174 and the Court ruled Article 138 to be inapplicable. Nor was that the first time the Court had ruled on such antinomies. Why do they arise? Because there have been constitutional reforms where the derived constituent instance has often gone further than its competence allows, because it cannot go beyond what has been established in the original Constituent instance.
TcS : Is it possible to clarify the way in which the Court's Constitutional Division delivered its ruling?
ALR : To deliver this judgement the Court's Constitutional Division called together all its magistrates. The magistrates Damasis Sirias, Ivan Escobar Fornos and Sergio Cuaresma did not attend. But all the Divisions of the court have deputy magistrates and the deputy magistrates did attend. That is why it is commonly alleged that the session was made up only of Sandinista magistrates. However, the Liberal magistrates were called upon but did not assist.
But there is a ruling following ruling No. 504 of October 19th 2009, which is the ruling we are discussing, and that is ruling No. 67 of March 8th 2010, in other words some months later, a ruling likewise of the Court's Constitutional Division where these Liberal magistrates Sirias, Cuaresma and Escobar Fornos did take part and in which are used exactly the same arguments that were used in the ruling that declared inapplicable the reformed Article 147 of the political Constitution. And furthermore, mention is made in this judgement of ruling No. 504 of October 2009. And I'd like to read it so you can see that exactly the same arguments really were used.
It reads, "In accordance with its supremacy, the constituent norm is the first mandate in the legal order to which constituted norms should conform, including, for them to be valid, derived constituent instances. When this does not happen there arises a conflict between ordinary derived norms and those of the derived constituent instances against the norms of the original constituent instance which through its supremacy, prevails over the others, even more so when dealing with the fundamental and supreme principles that inform our political Constitution gathered in the Preamble and in Articles One, Two, Five and Six of the Constitution, as we have sustained in our ruling and as this Constitutional Division of the Court has repeated in its ruling No. 504 when referring to the principle of popular sovereignty and the right to elect and be elected which cannot be changed by a derived constituent instance."
This ruling is signed too by the Liberal magistrates. It uses the self same arguments of ruling No. 504 in relation to the matter of re-election and furthermore itself alludes to that ruling.