Transparency Law Passes Unanimously

(To read more on our coverage of the Transparency Law, look here and here.)

A mere three months after its introduction on December 2, 2010, the Legislative Assembly of El Salvador voted yesterday to accept President Funes’s comments on the Transparency and Public Access to Information Law. Despite minor differences in opinion among the parties on certain points of the law, it was passed unanimously (81 votes). This complete consensus comes as somewhat of a surprise, especially given the strong opposition originally presented by the PCN (National Conciliation Party), GANA (Grand Alliance for National Unity), and the PDC (Christian Democratic Party). However, commented the president of the Legislative Committee, Guillermo Ávila Qüehl (ARENA), “what’s important is that it passed.” This vote was the final step in the law-making process, and the law is scheduled to become effective in March 2012.

The law recognizes three categories of information: reserved, confidential, and public.  Reserved information, which the government may refuse to divulge, is anything that could compromise national security or the public interest. Personal information about individuals (such as any health conditions, or religious or sexual preferences) is considered confidential and will also not be available to the public. What constitutes public information has yet to be precisely defined, but may potentially encompass all information which is not reserved or confidential.

The law now requires government institutions, and private entities funded by the state, to make information available to the public by establishing an accessible database of information, in addition to supplying inquirers with their requested public information. Additionally, the law creates a new government agency (yet to be appointed), tasked with implementing the law and punishing those who do not comply.

 

Surveys on Democracy in El Salvador

Earlier this month, El Faro published the results of a November 2010 survey conducted by Analítika Research & Marketing (ARM) that highlighted the public’s willingness to sacrifice democracy for greater economic stability and publicDemo security. Almost half the respondents said they would support a military coup to replace the democratic system in place if economic and security issues are not resolved. Seventy-two percent of the respondents said that the resolution of their problems, regardless of the means, is the government’s most important responsibility.

A 2008 survey by the Latin American Public Opinion Project (LAPOP) reported that 61% of Salvadorans consider the most pressing problem to be their economic situation, while 34% said security was their primary concern. Combined, 95% of Salvadorans list the economy or security as their top concern. Similarly, the Latinobarómetro’s annual poll found that only 18% report that they are satisfied with their economic status.

El Salvador’s numbers are in line with the rest of Latin America. The 2006 United Nations Report on Democracy in Latin America found that 56% of Latin Americans “believe that economic development is more important than democracy, and 55% would “support an authoritarian government if it resolved economic problems.”

At first glance, these surveys might seem to indicate that half of all Salvadorans are itching for an overthrow of the current government, with the economic situation not improving and security situation only becoming more serious. Fortunately, several other factors keep extremists from organizing a coup. For one, in December 2010, President Funes still enjoyed a 79% approval rating, indicating that while people are not happy about their economic situation, they don’t necessarily blame it on the Funes Administration. In addition, of those who are willing to sacrifice democracy for a better economy, at least some of them are also among the 18% who are satisfied with their economic status, but believe that an autocratic government is better. Finally, most Salvadorans over the age of 25 or 30 remember life during wartime and would probably not support another conflict.

What is most telling about the ARM survey is that 72% believe the government is responsible for resolving their problems, possibly indicating that Salvadorans could be more proactive in solving their own problems. Similarly, the willingness to trade democracy for a better economy and higher levels of security indicate a lack of commitment or confidence in the democratic process. This is born out in the low levels of public participation in local and central governments. And arguably, it’s the lack of public participation that allows those with economic and political power to protect their interests while the majority continues to struggle. Or put another way, it’s the widespread willingness to sacrifice democracy for economic development that leaves Salvadorans without either.

While the economic and security issues have not improved much since President Funes took office in June 2009, the administration and Legislative Assembly have taken steps to eliminate corruption and make the government more transparent. Now is a good time for more Salvadorans to get involved in their local and central governments, and contribute to building the economy and improving security.

Update on the Transparency Law

Last week, we blogged about the status of El Salvador’s proposed transparency law and the myriad reactions to it.

Today, a Diario CoLatino piece makes us hopeful for its quick passage. Three parties (FMLN, GANA, and PCN) have united to support the incorporation of President Funes’s recommendations into the legislation. These three parties, together, have 60 votes worth of say in the matter, 17 more than the minimum needed for the law’s passage. They aim to vote and resubmit the legislation to the President quickly, so that it may become effective early in 2012, before El Salvador’s presidential elections.

The energetic effort made toward passing this law may be due in part to the recent election of a new president of the Legislative Assembly: Sigfrido Reyes, of FMLN. Reyes spoke to El Faro about his election, outlining his goal of transparency in the Assembly and executive branch, which do not have a lot of trust with the Salvadoran public.

Still too early to celebrate, but this seems to be an important step to letting the sun shine on the Salvadoran government.

New Transparency Law Stalled

On December 2, 2010, the Legislative Assembly of El Salvador approved the Transparency and Public Information Access Law (Ley de Transparencia y Acceso a la Información Pública in Spanish), and on January 6, 2011, President Funes vetoed it and returned it with comments to the Assembly.  The proposed law would have required government institutions, and private entities tied to the state, to make information available to the public without, necessarily, a formal request, by establishing an accessible database of information. Additionally, the proposed law would have created a new government agency tasked with implementing the law and punishing those who do not comply.

The bill passed by the Legislative Assembly created three categories of information: reserved, confidential, and public.  Reserved information, which the government may refuse to divulge, is anything that, if made public, would compromise national security or the public interest. Personal information about individuals (such as any health conditions, or religious or sexual preferences) is considered confidential and would also not be available to the public.  All information that does not fall into these two categories is categorized as public and would be available to everyone.

This would be El Salvador’s first law regulating transparency and the establishment of a database of public information. Currently individuals have the constitutional right to request information from state-affiliated agencies on the municipal level, but, as there is no law to guarantee and enforce this right, it is not currently used to its full advantage. Under this new law, institutions would have 10 business days from the date of a request for information not already public to provide the inquirer with either a) the information requested or b) a response denying the request if the information is reserved or confidential. If denied, the person making the request may appeal to the government agency implementing the law. If the enforcement agency, which will be comprised of five people that the President selects from a list of nominees from five social sectors, finds that the government body was unjustified in denying the request, they may release the information and impose a penalty of up to $8300.

The law passed the Legislative Assembly with a vote of 55-30, enjoying support from representatives from both the FMLN and ARENA parties. On January 6, President Funes vetoed the proposed law and returned it to the Assembly with comments. The law that was passed by the Legislative Assembly would give Salvadorans the right to request information 30 days after the President signed it into law. In his comments, President Funes requested that they give his administration one year before people can make requests, allowing his administration to create the new government agencies. He also suggested a more clear definition of what is ‘public’ information, instead of letting it be defined simply as what is not reserved or confidential, terms that are also vaguely defined. Lastly, he proposed that the Legislative Assembly better define how government institutions must respond in the case of an inquiry. In general, the President’s comments on the law and his reasons for vetoing it seem based on improving the law and its application, and not out of an opposition to its underlying principles.

The law was returned to the Legislative Assembly, which will look over the President’s comments and decide whether to address the issues he raised.

If the President eventually signs the bill into law, it would mean increased access to information and governmental transparency, which would theoretically foster more active and effective community participation and, in turn, keep government-affiliated institutions accountable to the people they represent. However, as columnist and professor Guillermo Mejía points out, in a politically developing nation like El Salvador, the public may not recognize the importance of this law or the importance of their role in its success. If Salvadorans do not use the law or take a more active role in holding their government officials accountable, the law will not have much of an impact on the country’s nascent democracy. To illustrate this point, Mejía cites the recent Wikileaks scandal as indicative of the persistence of governmental duplicity in the face of popular apathy even in developed nations like the U.S.

Many of those who have supported the laws passage are concerned that Funes’ veto is less about making the law better, but trying to kill the bill altogether. The Promoters of the Transparency and Public Information Access Law (abbreviated GP in Spanish – a summary of the group and a list of its members can be found here), writers for El Faro in particular, have expressed such concerns , and fear that the President is trying to minimize the transparency of his administration.  Others believe that Funes is trying to slow down the implementation of the law in order to give government officials more time to reorganize sensitive documents before they become public.

Funes has responded to these accusations by noting that the previous ARENA-run administrations that were in power for 20 years blocked all previous efforts to promote a transparency law. He has pointed out that he did not veto the bill outright, but sent it back with comments and a mind toward future progress.

 

Update on Inspector General of the PNC, Zaira Navas

Since last week when we posted an article about the Legislative Assembly’s plans to form of a Special Commission to investigate the Investigator General of the National Civil Police (PNC) Zaira Navas, several top ranking officials, including Salvadoran President Mauricio Funes have spoken out on her behalf. Members of the Legislative Assembly, including Diputado José Antonio Almendáriz, accuse Navas of improperly investigating Police Commissioner Douglas Omar Garcia Funes, former Commissioner Godofredo Miranda, ex-Director of Police Ricardo Menesses, and many others for corruption and ties to organized crime and drug trafficking.

During the legislative session last Thursday, the 45 votes in favor of the Special Commission were enough to move ahead with the investigation of the Inspector General. While no left-wing FMLN diputados voted in favor of the special commission, 45 right-wing ARENA, PCN, PDC, and Gana legislators supported it.

Yesterday, President Funes expressed his support for Navas, confirming that she has only followed the guidelines he gave her in conducting a thorough “cleaning’ of the PNC. Simialrly, the Minister of Justice and Security, Manuel Melgar, has claimed that the commission may be unconstitutional and should not be permitted to go forward. Even Carlos Ascencio, the Director of the PNC, defended Navas, saying that she was simply following the lines of investigations that President Funes had ordered. The Office of the Ombudsman for Human Rights has also stated “we must respect the work of the Inspector General.”

Government Agencies in El Salvador have operated in the shadows for a little too long.  A little sunshine every now and then is good for everyone, unless they have something to hide.

Political Parties Reject Public Access to their own Finances

On Monday, the Legislative Assembly began going through the proposed Law on Transparency and Public Access to Information line by line.  According to Elfaro.net, the ARENA and FMLN political parties, the two largest, have rejected the provision that would require political parties to make their financial information available to the public.

The provision is one of many proposed by the Funes Administration to limit corruption in the government.  Unless it is removed, the provision would help end the system of political debts, in which a person or institution donates to campaigns in return for political support.  The provision is not limited to political parties but includes all entities, public or private, that manage public funds.

Article 6 of the Salvadoran Constitution guarantees the freedom of expression to all citizens. Over 10 years ago the Inter-American Court of Human Rights determined that the freedom of expression includes the right to access public information. The ElFaro.net article points out that El Salvador is required to respect that decision and give people free access to public information so that they are able to express themselves in an informed manner. The only provisions in Salvadoran law that give such a right is Title IX of the Municipal Code, which requires local governments to give citizens access to information.

El Faro notes that in recent years there is evidence that organized criminals have infiltrated political parties. They cite recent examples of diputados from the PAN (National Action Party) and the PCN (National Conciliation Party) who were arrested in the U.S. on charges related to drug trafficking. In our own investigation into the mining issue in Cabañas, we found several instances in which Pacific Rim is thought to have donated to local political campaigns or paid politicians for their support.

This new provision will allow citizens and civil society organizations the tools necessary to monitor the financial interests of those who manage public funds. It will allow people to see where political parties and politicians are getting their support and to whom they might be indebted politically. The law does not provide additional restrictions on who may make political donations or limits on how much they can give.

Representatives from the two largest political parties, FMLN and ARENA, rejected the proposal outright. Mario Valiente, a former mayor of San Salvador and an ARENA diputado, “expressed his disagreement with the possibility that political parties would have to reveal their sources of funding,” though he did not say why. He indicated, however, that such a provision is better suited for the Law on Political Parties, but acknowledges that it is unlikely that they will reform that law anytime soon.

Controversial Commission Would Implement Law on Access to Public Information and the Law on Government Ethics

Following up on our April 2 posting, the Funes Administration finally provided comments on the draft Law on Access to Public Information.

One of the controversial provisions of the draft creates a new Commission on Ethics and Access to Public Information that will oversee the implementation and monitoring of the new law, as well as the 2006 Government Ethics law that is also being reformed. Administration officials and others fear that one commission implementing both laws will create a large, ineffective bureaucracy, and the important reforms in each law will go unenforced.

The two laws are important to opening up El Salvador’s government by increasing public participation, promoting greater transparency, and taking more measures to limit corruption. If passed, the Law on Access to Public Information will give citizens the right to information that will allow them to know what their government representatives are doing and how. The Municipal Code provides such rights at the local level, but Salvadorans have never had free access to information from the Central Government.

The proposed reforms to the 2006 Law on Government Ethics will strengthen the existing regulations on how public officials and institutions conduct business. Government officials, for example, will no longer be permitted to engage in political party activities while on the clock.

The new Commission will be comprised of ten committee members, including a chairperson. The president will select the chairperson from a pool of candidates nominated by civil society representatives, who must then be confirmed by the Supreme Court. Civil society organizations, the Legislative Assembly, the Public Ministry, the Court of Auditors, the National Association of Private Companies, Universities, and others will choose the other commissioners.

Claudia Umaña, the Director of the Department of Legal Studies at FUSADES (the Salvadoran Foundation for Economic and Social Development) fears that the composition of the Commission and the lack of rules binding the members will make the Commission ineffective. She also worries that it is too much to ask one commission to oversee the application of two separate laws that cover separate issues. Marcos Rodríguez, the chair of the Undersecretary on Transparency disagrees, arguing that representation of all these groups will reduce conflicts of interests when the Commission makes decisions.

FUSADES and other organizations that have promoted a new Law on Access to Information are concerned that the current draft is not strong enough, and lacks the enforcement mechanisms necessary for full implementation. The draft, for example, does not contain the mechanisms to guarantee that the information a government agency provides is accurate and complete. The draft also fails to address issues such as when a government agency can withhold information, when they must publish information prior to a specific request, and whistleblower protection.

The Legislative Assembly will meet next week to discuss the Administration’s comments and concerns.

Visit from Gerson Martinez, Minister of Public Works

Gerson Martinez, Minister of Public Works, is visiting Washington DC this weekend and invited local solidarity groups and interested parties to join him for a brown bag lunch today. For background on Mr. Martinez, the Ministry of Public Works (MOP), and it’s relationship with Transparency International (TI) see our article from August of last year.

The discussion reviewed many of the current MOP projects, the ministry’s short and long term goals, and its ongoing relationship with TI.

Mr. Martinez reviewed a variety of MOP projects, focusing mainly on the construction of sufficient and adequate housing, the improvement of roads, highways and bridges, recovery from Hurricane Ida, and the creation of an international high-speed train to connect all of Central America. Mr. Martinez stressed that it is impossible to accomplish these goals in a 5 or 10 year plan, and the only realistic way to approach the issues is with a vision of 15 years or more. However, he also understands that many Salvadorans are currently in desperate need of these services, and that the problems must be tackled with both immediate and long-term programs.  Provisional housing and support is currently being provided, and disaster recovery is happening as quickly as resources permit. Mr. Martinez stated that the MOP does not expect to fully complete these projects until 2024.

The conversation also reviewed El Salvador’s growing relationship with Transparency International, an organization focused on decreasing  government corruption worldwide. MOP has historically been one of the most corrupt ministries, and Mr. Martinez is committed to  reversing this trend. His dedication has been inspirational, as President Funes and his entire administration have signed the observation agreements provided by TI. The Cámara de Empresas Privadas, a group of private business owners, has also agreed to the observations. Mr. Martinez hopes that by creating greater transparency in the national government resources will be used more appropriately and citizens will be empowered to participate fully in their government. His main concern with the initiative is that TI lacks the resources to observe all proceedings, and currently only witnesses a handful of the 100s of noteworthy events. TI also lacks the power to enforce its guidelines, leaving room for corrupt officials to only participate in the proceedings without outside observers.

Mr. Martinez ended the luncheon with the words “La transparencia es clave” (transparency is key), and a statement of appreciation for all in attendance.

FMLN Says it Will Back Transparency Law

Last week El Faro reported that FMLN legislators have committed to supporting a law on transparency and access to public information. The announcement followed a meeting with a group of stakeholders that include the Association of Salvadoran Journalists (APES), the Latin American Institute of Constitutional Law, the National Foundation for the Development, the Salvadoran Chapter of Transparency International, the University of José Siméon Cañas (UCA), the Association of Broadcasters (Asder), and FUSADES.

The Legislative Assembly considered a similar proposal last year, but ultimately rejected it, arguing that the cost of a new government institution to oversee transparency was too great considering the country’s economic concerns. The stakeholders group argues that the cost of implementing a transparency program far outweighs the current costs of corruption and misappropriation of government funds. In a recent public statement, representatives from Transparency International also stated that a country that is transparent and accountable to its citizenry is more efficient and faces less national and international arbitration.

In June, representatives from the ARENA party committed their support for legislation to promote transparency and access to public information. With support from both parties, legislators and members of the working group will begin drafting a new law followed by legislative discussions. El Salvador is one of the last countries in Latin America to adopt a transparency law.