Decree 743: The Controversy Continues

As the constitutional crisis continues in El Salvador, several different people and groups have staked out their formal positions on Decree 743, the law passed on June 2 that weakens the country’s Constitutional Court.  If you haven’t read our other posts about Decree 743, click here for more information.

Last week, Constitutional Court Magistrate Sydney Blanco was in Washington, DC visiting friends and family, but took time to meet with Salvadorans in the area and others interested in the issue. Magistrate Blanco is one of the four Constitutional Court Magistrates most affected by Decree 743.

Blanco speaking at an event held last Friday by the Salvadoran Lawyers Association in Maryland

At a press conference held at the Central American Resource Center on Wednesday, Magistrate Blanco stressed that, as judges on the Constitutional Court, he and his colleagues are independent. He continued, “we are not thinking whether [a decision] is going to prejudice or favor one political party or another; our only motivation is the Constitution.”

During the conference, Magistrate Blanco emphasized that not only the content, but also the form of decree 743, is unconstitutional.  The decree was approved and sanctioned in a mere 7-hour window and was not discussed, which is inherently unconstitutional.  In addition, the magistrate noted that the Salvadoran Constitution provides for pluralism of political views, as established in its article 686.  The Magistrate commented on the necessity of these “different streams of political thought…[allowing] each magistrate to think differently and possess a different view.”  He argued that pluralism is undermined by the decree’s requirement of unanimity in the Court.

Pluralism is the basis of  judicial independence, which is a recent phenomenon in El Salvador. Until 2009, when Mauricio Funes was elected President and Sydney Blanco and others were appointed as Magistrates to the Constitutional Court, the judiciary often served political and economic interests of those in power. Since taking the bench in 2009, however, the current Court has struck down several controversial laws, including the Electoral Code.

In a letter dated June 30, 2011, a group of civil society organizations, which included FESPAD, FUNDE, FUSADES, WOLA[V3] , and others, reject Decree 743 because it violates the principals of an independent judiciary and separation powers. They argue that Decree 743 is targeted to interfere with the Constitutional Court’s work, and therefore violates Article 8(1) of the American Convention of Human Rights and Article 14(1) of the International Covenant on Civil and Political Rights, which guarantee citizens the right to an independent judiciary.

While the Constitutional Court has undoubtedly been greatly impacted by the decree, Blanco asserted, “The decree has not interrupted the work of the Court…for us [Magistrates] the decree was born and died instantaneously.”  In addition to the charge of obstructing the function of the Court, organizations opposed to the decree view it as a separation of powers issue, in that the Legislative Assembly and Executive have limited the abilities of the court in order to keep them from ruling on the Amnesty Law, continuing their call for reform of the Electoral Code, and other issues.

On July 8, another group of Salvadoran organizations participated in a conference on electoral reform, resulting in a declaration supporting President Funes and his efforts to limit the Court’s authority. Without even mentioning Decree 743, the declaration and its signatories clearly support the administration and the FMLN in the current debate. They accuse FUSADES, ANEP, and the ARENA party of using the Constitutional Court to destabilize the government by finding the Electoral Code unconstitutional and creating chaos in the months before the January 2012 municipal and legislative elections.

It seems unlikely that the Court’s demand for reformation of the Electoral Code was a right-wing conspiracy. Domestic and international organizations have talked about the need for reform of the Electoral Code since before the 2009 elections. Whether or not there was a conspiracy with the Court, some right-wing politicians and groups have used the debate to drive a wedge between left-leaning organizations and political parties. Early on, members of the ARENA party, who are surely just as opposed to electoral reform as the FMLN, said that they would support repeal of Decree 743, and since then have been largely absent from the debate, letting Funes and the FMLN struggle to defend the unpopular law.

Drafters of the declaration produced at the July 8th conference recognized that right-wing interests are using election reform and Decree 743 as wedge issues, trying to divide the FMLN and President Funes from large segments of their base. The declaration calls on the People and organizations not to fall for false or confusing information and to continue to support the administration and party of change. The declaration, however, does not back its positions on reform of the Electoral Code and Decree 743 with the same kind of legal reasoning that the drafters of the July 30th letter to President Funes use. The drafters instead depend on the threat that the right-wing supporters of the oligarchy are trying to destablise the government.

Magistrate Sydney Blanco said that there isn’t much of a crisis for the court. He argues that they ruled Decree 743 unconstitutional and has been operating same as always. The Official Diary of the government, however, did not publish that ruling because it did not have the signature of all five Magistrates, which Decree 743 requires. So the standoff between the branches of government continues. It remains unclear what the process will be for electing representatives to the Legislative Assembly will be in January 2012 or whether the Magistrates will be able to serve out the rest of their term. It is apparent, however, that the President’s base is split on the issue and he has spent a lot of political capital.

 

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