Judicial Review of Constitutional Reforms in El Salvador: A Half-Hearted Control?

Abstract

This article critically analyzes the argument made by the Constitutional Chamber of El Salvador, based on the unconstitutionality ruling 7-2012, in the sense that it can only carry out an a priori judicial review of constitutional amendments. In El Salvador, the constitutional amendment procedure consists of two main steps: the approval of the reform agreement by a first conformation of the Legislative Assembly, and its ratification by a second conformation of said political body. This particular form of control carried out by the court consists in affirming that only the constitutional amendment agreement can be controlled, not the subsequent ratification decree because, once this second step has been reached, the amendment has already become part of the constitutional text and the existence of unconstitutional constitutional norms cannot be predicated. Nonetheless, I maintain that the existence of hierarchies within the same Constitution is possible. Said hierarchies are determined by the authority that issues the constitutional provisions. The original
constitutional provisions are superior to the provisions resulting from a constitutional amendment because the former were promulgated by a higher authority, the primary constituent power, while the latter were enacted by a lower power and, therefore, limited, the amendment power or secondary constituent power. Hence, the latter cannot exceed the limits imposed by the former.

Keywords
Constitution, constitutional amendment, judicial review, limits, unconstitutional constitutional amendments, unconstitutional constitutional norms, unconstitutionality.