## Facts

- José Arturo Tovar Peel, a Salvadoran citizen, filed an unconstitutionality action before the Constitutional Chamber of the Supreme Court of Justice of El Salvador.
- He alleged an **unconstitutional total legislative omission** by the Legislative Assembly for failing to enact legislation regulating the constitutional right to compensation for **moral (non-pecuniary) damages**.
- The claim relied principally on **Article 2(3) of the Constitution**, which recognizes compensation for moral damages “**conforme a la ley**” (“in accordance with the law”), and was also linked to **Article 245**, which addresses compensation for damages caused by public officials’ actions or omissions that violate constitutional rights.
- Tovar Peel argued that the constitutional text implies a binding requirement that the legislature enact a legal framework defining how moral-damages claims are asserted and resolved, including basic standards and procedural routes.
- During the proceedings, the Constitutional Chamber requested information from the Legislative Assembly about the alleged omission and the state of any relevant legislative action.
- The Attorney General opposed the complaint, pointing to various statutory provisions that, in the government’s view, already permitted recovery of moral damages in certain contexts.
- The dispute centered on whether those scattered provisions amounted to the type of general regulation contemplated by Article 2(3), or whether a regulatory void persisted that kept the constitutional right from operating as a practical, generally available remedy.

## Issues

1. Whether the Legislative Assembly’s failure to enact a law regulating compensation for moral damages, as contemplated by Article 2(3) of the Constitution, constitutes an unconstitutional **total legislative omission**.
2. Whether the constitutional phrase “in accordance with the law” in Article 2(3) imposes a **non-discretionary duty** on the legislature to legislate, rather than leaving regulation to legislative choice.
3. Whether existing dispersed statutes cited by the Attorney General sufficiently regulate moral-damages compensation to satisfy the constitutional command, or instead leave the constitutional right without the required general legal framework.

## Decision

- The Constitutional Chamber **granted** Tovar Peel’s unconstitutionality complaint and **declared** that the Legislative Assembly had incurred an **unconstitutional total omission** by not issuing the legislation required to develop Article 2(3)’s recognition of compensation for moral damages.
- The court held that Article 2(3) does more than announce an aspiration: by stating that moral-damage compensation exists “in accordance with the law,” it contains a **mandate to the legislature** to issue the legal rules necessary for the right’s exercise.
- The court rejected the argument that the constitutional duty was satisfied by scattered legal provisions that might allow moral-damages recovery in limited settings, concluding that they did not amount to the **general, organizing regulation** contemplated by the Constitution.
- As a remedy consistent with separation of functions, the court **ordered the Legislative Assembly to enact** a law regulating compensation for moral damages **within a set period**, leaving the policy choices and detailed design to the legislature.

## Legal Principles

- A constitutional claim of **unconstitutionality by total omission** may lie when the Constitution assigns a clear legislative task, the competent body does not carry it out within a reasonable time, and the absence of legislation blocks or seriously hinders the operation of a constitutionally recognized right.
- Constitutional language conditioning the operation of a right on action “in accordance with the law” can function as a **binding legislative command**, not merely an authorization to legislate.
- Constitutional provisions sometimes described as “programmatic” can still create **judicially enforceable duties** when the text imposes an obligation to legislate and prolonged inaction prevents the right from being exercised under general, predictable rules.
- In omission cases, the court’s remedy is typically to **declare the omission unconstitutional and order legislative action**; the court does not replace the legislature by drafting the statutory scheme itself.

## Conclusion

In *José Arturo Tovar Peel v. Legislative Assembly*, the Constitutional Chamber held that El Salvador’s Constitution recognizes compensation for moral damages and requires legislative regulation to make that right generally workable; because the Assembly had not enacted such a law, the court declared a total unconstitutional omission and ordered the legislature to pass the necessary legislation within a set timeframe.


José Arturo Tovar Peel v. Legislative Assembly, Unconstitutionality Complaint 53-2012 (2015)