Salvadoran Legislative Assembly and Supreme Court debate the Election Laws

On July 29, the Legislative Assembly and the Constitutional Branch of the Supreme Court began openly debating election reforms.  The Supreme Court issued a ruling that struck down clauses of the Election Code that required candidates to be members of a political party in order to run for office in the Legislative Assembly.  In the same ruling, the Court also said that the closed lists that political parties currently use on election ballots are unconstitutional.  Instead, the Court said, voters must be able to vote for individual candidates from each party.

The Court stated that sections of the Electoral Code were unconstitutional because they diminish voter autonomy and effectively eliminate direct elections, which is a right protected by Article 78 of the Salvadoran Constitution. Warned in advance of the Court’s impending decision, the Legislative Assembly passed several constitutional reforms, one of which completely banned independent candidates from participating in municipal and Legislative. The last minute reforms, some of which were passed at 1 am the night before the Court published its decision, were clearly intended to create conflict with the Supreme Court.

The Court found that the current system of electing Legislative Assembly representatives (diputados) unconstitutional because citizens vote for a party and not individual candidates. Following an election, the leaders of the party that received the most votes chooses the representatives. The judges argue that because citizens can only vote for a party and not a candidate (the ballot actually has the logos for each of the parties and not the names of a candidate), the system violates their right to direct elections. The decision will take affect immediately, long before the 2012 legislative elections, during which citizens will vote for specific candidates and not political parties  for the first time. The names of presidential candidates and municipal officials already appear on ballets, so the decision will not affect those elections. The Judges said that they hope their ruling will bring candidates closer and more accountable to voters by decreasing the influence of the political parties. They also requested that the Legislative Assembly rewrite sections of the Electoral Code dealing with independent candidates to save El Salvador from a legal vacuum on the issue.

Immediately after the decision was announced, leaders from the FMLN and ARENA parties met with Judges to persuade them not to sign the decision. According to elfaro.net, the Judges refused and the party leaders threatened to remove the Chief Justice from Court – one of the strongest powers the Constitution grants the Legislative Assembly. Other politicians, including President Mauricio Funes, brushed off the threat as unlikely.

Since the ruling was handed down it has received criticism from across the political spectrum.  The Legislative Assembly has taken action to prevent it from ever taking effect and threatened to take even stronger measures, including removing multiple Justices from the bench.  On August 1, the FMLN party (which currently holds the presidency) questioned the decision, particularly as it relates to the integrity of political parties in elections, and worried that the Court overstepped its bounds in issuing such a ruling.  Officials from other parties have not taken a clear position but seem tentatively critical of the ruling. Instead they are waiting for the Court to sign the decision and officially send it to the Legislative Assembly before staking out their positions. President Funes has asked for prudence and sensitivity as the Judicial and Legislative branches face off. He has also acknowledged that the laws governing elections are in need of improvement and clarification.  He stated, “I am not going to judge whether the decision of the Supreme Court is advisable or not, but it is a ruling that has to be observed by the Legislature or [the Assembly] would be in contempt of court.” (La prensa gráfica).

One concern over the Court’s ruling is that making legislative elections more direct could allow for greater influence and control by organized crime and drug traffickers. Norman Quijano, the mayor of San Salvador, expressed his doubts that individual candidates can be truly independent.  He fears that if diputados are if not chosen by party leaders, they are likely to be influenced by a variety of interests (La prensa gráfica).

The Catholic Church, however, was quick to defend the Court’s action. Last week, Monsignor José Escobar Alas, Archbishop of San Salvador, expressed his support for the Court’s ruling, saying that it supported democracy in the country.  In a public statement, he asked the Legislative Assembly to respect the ruling. He stated, “In the democratic process, it’s completely valid to have independent candidatures, as in many Latin American and European countries, it’s a step forward for democracy, because the more participation there is, the better. The people are the true winners” (Diario CoLatino).

Despite the heated rhetoric, the Legislative Assembly will have a difficult time getting around the Court’s decision. Amending the Constitution is not easy. Once the Legislative Assembly passes amendments, the next Legislative Assembly must ratify them by a two-thirds vote. According to Rómulo Rivas from the Independent Pro-Electoral Reform Movement (MIRE), the Congress is unable to do anything.  “If they try to pass a Constitutional reform, it would be very difficult, because the following legislature would have representatives elected under the new system, which would make it difficult to get the 56 votes necessary for a Constitutional reform” (Diario CoLatino).

No matter the outcome, the next few weeks are shaping up for a show down as the Legislative Assembly and the Supreme Court face off.  So far, both sides have proved themselves unwilling to compromise on the issue, but more than willing to take action to defend their position.  Because the next national election is not until 2012, and the Constitutional reforms require approval during the next session of the Legislative Assembly, there is still much time for the debate to develop as each side refines its position.

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