June 16th 2011
Dr. Rafael Solis was one of the lawyers responsible for framing the Constitution of 1987 and organizing the legal aspects of Nicaragua's first transition from one democratically elected government to another in 1990. That year, constitutional arrangements were complicated by the fact that the elections had been brought forward from November to February.
Tortilla con Sal : Can you tell us about the legal context of the Presidential decree of January 2010 that extended the periods of office for the magistrates of the Supreme Court of Justice and the Supreme Electoral Council?
Rafael Solis : The fundamental thing for all the officials in this situation , above all the magistrates of the Supreme Electoral Council is that the political Constitution established an Article so that until a new magistrate is named to replace the previous one whose period of office has expired, the current magistrate continues in his position indefinitely until a replacement is named.
In this case the National Assembly could not name replacements because there weren't the votes. So the institutions could not disappear or become tied up or lame ducks and so it was sorted out as has been done throughout Europe, in that the interpretation of that Constitutional article in Nicaragua was oriented to the future as a final disposition, not just a transitory one for the moment in which the Constitution was applied when there were magistrates with their periods expired.
Rather it was for whenever in the future, and the magistrates were able to continue in their posts until the new magistrates might be named. That's what the second clause of Article 201 states and that is the main argument of the ruling of the Supreme Court of Justice which left the matter clear.
As well as that, there was a decree, No. 3-2010, issued by the President of the Republic exercising his functions which he issued in the month of January when the National Assembly was not in session. He has the power to issue a decree and that also ordained in practice that all the officials whose periods were to expire in the following months should continue in their positions.
So that is is to say there was a Constitutional disposition, a decree, a law issued by the President of the Republic that is also valid, although of a lower order than the Constitution, which obliged all us officials whose periods have expired to stay in our posts until the new officials are elected.
That is what has been done
Really we are working well. Currently in the Court only one magistrate has not returned to work,. That's Dr. Cuaresma. The National Assembly..., practically everyone is back working and in teh Auditor General of the Republic where there was some resistance among the Liberal Controllers, there the Liberal Controllers are working. Some left their position one day but returned after a couple of weeks. The Superintendent of Banks is working with his period expired. The Public Prosecutor of the Republic too.
The importance of this debate has been aired publicly indicating that we should apply the Constitution and the law by continuing in our posts until new officials are elected and let's hope that will happen shortly.