(Dec. 18, 2009) On October 19, 2009, the Constitutional Chamber of the Supreme Court of Nicaragua issued a decision that effectively permits the President, Vice-President, mayors, and vice-mayors to run for reelection. (Case No. 602-09, in the Amparo Writ Ortega et al. v. the Supreme Electoral Council of the Republic of Nicaragua, ARCHIVOS DE LA CORTE SUPREMA DE JUSTICIA, Oct. 19, 2009, available at http://content.glin.gov/summary/224071.) The decision partially annuls articles 147 and 178 of the Constitution, which had established term limits related to those offices. (The Political Constitution of Nicaragua [as amended], Global Legal Information Network [GLIN] online legal database, available at http://www.glin.gov/view.action?glinID=22460 (last visited Dec. 17, 2009).)
The petitioners in the case, including current President Daniel Ortega and numerous other elected officials, had requested that the Court annul an administrative resolution affecting reelections. That resolution had been issued by the Supreme Electoral Council (SEC) on October 16, 2009, denying the petitioners' request to allow sitting officials who were party to the case to run for an additional term. The petitioners argued before the SEC that a contradiction existed between the constitutional principle of unconditional equality, found in articles 27, 48, 50, and 51 of the Constitution, and the principle of electoral prohibition contemplated in articles 147 and 178. The petitioners asserted that the challenged constitutional provisions were prejudicial because they did not allow the petitioners to run in the presidential and mayoral elections scheduled for 2011 and 2012. The SEC dismissed the claim based on its lack of jurisdiction to hear the case. (Case No. 602-09, supra.)
Following that response from the SEC, the petitioners brought the case before the Supreme Court through a Writ of Amparo [amparo actions are actions aimed at protecting constitutional rights] requesting the annulment of the electoral prohibition provision of the Constitution, based on its violation of the principles of equality before the law, equality in the exercise of the political rights of the office holders to participate in the political affairs of the country, and sovereignty and national self-determination, among other constitutional guarantees, all of which are in accordance with international human rights conventions by which Nicaragua is bound. The petitioners also mentioned that the preamble to the Constitution prevails over any constitutional provisions that contradict the philosophical basis expressed in that preamble, stemming from “the revolutionary conquests achieved by the people,” whether in words or in spirit, as stated in the preamble. They also argued that members of the National Assembly and other elected political bodies are not subject to the term limit provisions that had been applied to the President, Vice-President, mayor, and vice-mayors. Application of the prohibition on reelection was, they maintained, discriminatory against the petitioners.
The Court reasoned that the application of the challenged constitutional provisions did constitute unequal treatment in light of “the principles of equality and proportionality,” since under the Constitution the only grounds for limiting the reelection bid of elected officials are age, criminal conviction, or civil interdiction. Moreover, the Court stated, the original constitutional framers did not establish the prohibitions contained in articles 147 and 178; these articles were added by what the Court called the “Derivative Constitutional Power” of the legislature on July 4, 1995. (Art. 13, Law 192, Partial Amendment Law to the Political Constitution of Nicaragua, GLIN, http://www.glin.gov/view.action?glinID=55980 (last visited Dec. 17, 2009).) The Derivative Constitutional Power, the Court explained, did not confer more powers than those the original constitutional framers had conferred and, therefore, the amendment adding articles 147 and 178 to the Constitution had violated the principle of sovereignty. (Case No. 602-09, supra.)
The decision partially struck down article 147, overturning language that banned the reelection of any incumbent President or Vice-President, as well as of those who have held the office of President of the Republic during the two previous terms. The provision extended to the Vice-President, or any deputy who had exercised the office of Vice-President or President during the 12 months prior to the date on which the election takes place. Article 178 was also partially repealed; the affected provisions were those that banned mayors and vice-mayors from reelection for the period immediately following that in which they hold office. (Id.)
Finally, the Court held that because the decision produced effects only for the parties to the case, the Court had referred the matter to the full Supreme Court for en banc ratification of the decision, which would make it applicable to all citizens. (Id.)