The People Spoke and 743 Was Repealed!

Yesterday, representatives from the FMLN and ARENA in the Legislative Assembly joined together to repeal Degree 734 – the controversial bill that required the Constitutional Court to reach unanimity in order to publish a decision. The Legislative Assembly passed Decree 743 and President Funes signed it into law on June 2, with no public debate. Protestors of all political colors and ideologies joined together to protest the bill, claiming that it violated the principal of an independent judiciary as established in both the Salvadoran Constitution and international treaties.

According to El Faro, the agreement began as a proposal by FMLN Representatives in the Legislative Assembly searching for a solution to the constitutional crisis that has been roiling since June 2. Their original proposal, which was introduced earlier in the week, maintained the unanimity requirement for the Constitutional Court when the decide whether a law is inapplicable, while allowing for a four out of five majority in other decisions. Representatives from the ARENA party, however, said they would support the FMLN plan if they got rid of the unanimity requirement altogether.

This past weekend, Voices hosted a small event in conjunction with our summer board meeting. In attendance were several Salvadoran-Americans living in the Washington DC area, and we asked their opinions on Decree 743 and the Constitutional issue. A middle-aged man we know only as Julio (nom de guerre), said that while de did not support Decree 743 at all, he thought the debate was little more than a growing pain in El Salvador’s efforts to strengthen its democratic institutions. He took the view that Decree 473 was meant to protect the same power structures that have existed since the Peace Accords were signed in 1992. He was confident that Decree 743 would not stand and that the Court and the rule of law would be stronger for having the debate.

We think Julio’s point is an important one. The decision to repeal Decree 743 seems to be a real victory for the rule of law and the independent judiciary, and will only serve to strengthen El Salvador’s institutions. The rule of law is stronger because even though the Constitution and international law may not be convenient for those with political and economic power who want to maintain greater control over the judiciary, Decree 743 did not stand. From this point forward, it also becomes more difficult for officials from the executive and legislative branches of government to interfere with the Court, even when they are taking on controversial decisions. And with stronger rule of law and even greater independence, the Constitutional Court will be able to continue addressing controversial issues such as reform of the Electoral Code.

The Decree 743 debate has also been valuable for the amount of attention it has focused on controversial issues such as Electoral Code reform. With the local and legislative elections scheduled for March 2012, the debate over reform is very important. Those who advocate reform believe that the current system of voting for political parties (who then choose representatives for the Legislative Assembly based on the number of votes they receive) is unconstitutional and that the people ought to be able to vote for individual candidates. Those who are opposed to reform argue that by giving political parties greater control over who is appointed to represent people in the Legislative Assembly, they can better control the agenda and prevent corruption and abuse. On July 8, a group of FMLN supporters issued a declaration against electoral reform, arguing in part that they are better able to defend the people against the economic and political interests of the wealthy elites if they maintain a system in which they choose representatives.

As the debate over the electoral process for the March 2012 elections continues in the coming weeks and months, it will be very important for Salvadorans to understand the changes proposed and what it would mean for their access to the governing process.

Yesterday’s repeal of Decree 743 is also another important indication that civil society and public participation are strengthening in El Salvador. Though Salvadoran law does not provide civil society or people the right to directly comment on actions taken by the central government (the Municipal Code allows for public participation at the local level), organizations and people have mounted strong advocacy campaigns that pressure government officials to listen. The Decree 743 advocacy campaign is as important as the anti-mining movement’s efforts to prevent the government from granting exploitation permits to Pacific Rim Mining Corporation, and the 2002 health workers strike to prevent privatization of part of the health care system. And like participants in the anti-mining movement and the 2002 health worker strikes, opponents of Decree 743 set aside their political party affiliations to unify as one people.

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