Case Summary and Outcome

Facts

Decision Overview

The Court had to determine whether the secrecy of the debates over stripping senior officials of immunity violated the right of access to information or rather it constituted a legitimate protection of the officials’ right to privacy. The Constitutional Chamber held that as a general rule imposing secrecy on such debates constituted a violation of the principles of transparency and disclosure that should govern legislative action, especially in matters involving the exercise of political functions. Therefore, it ruled as unconstitutional the word “secret” in Article 191 of the Rules of the Legislative Assembly.

The Constitutional Chamber began by noting that legislators are responsible for deciding certain matters because they have been delegated to do so by the people. Therefore, the people have the “full and unquestionable right” to information regarding “all matters which are discussed and decided in parliament,” as well as the justifications for the decisions made. Thus, “the people, citizens, public opinion, and the media” have the right “to scrutinize and supervise” all of the legislators’ actions in making laws, especially when political oversight is being exercised. (par. IV)

The Court emphasized that Article 117 of the Constitution provides that all sessions conducted by the Legislative Assembly were to be public, except in those exceptional cases in which the legislature established that the sessions were secret, for very well justified and widely beneficial reasons. Furthermore, for the Assembly to declare a session secret, two thirds of the legislators in attendance had to vote in support of imposing secrecy on a session. To the Court, this rule implied that exceptions to public access to the sessions were unique. In such cases, the Assembly was required to provide sufficient and reasonable arguments or grounds to substantiate its decision to declare a session secret. Moreover, the Court held that the decision to vote on a matter in a secret session was subject to subsequent constitutional review.

The Court explained that an evaluation of a legal action by the Assembly which called for immunity to be stripped did not include an analysis of the veracity of the facts. The Assembly solely verified the reliability and seriousness of the accusation, to ensure that it was not an attempt of political persecution. The Court thus held that the lifting of immunity held by senior officials was a political and non-judicial function. Given that these sessions were a political function, the citizens had to be informed of the process so that they could scrutinize it to prevent decisions contrary to the Constitutional Rule of Law.

Thus, for the Court it was contrary to the Constitution that the principles of transparency and disclosure were abrogated by a general rule of confidentiality and secrecy. The Court found that this violated the fundamental rights of access to information, freedom of information, and freedom of expression. For these reasons, the Court decided to declare unconstitutional the word “secret” in Article 191 of the rules.

Judges Castillo Víquez and Salazar Alvarado dissented. The Judges argued that lifting the immunity was required in order to prosecute officials, and thus the Assembly’s sessions had to be given as much secrecy as regular criminal proceedings.