The president of El Salvador, Mauricio Funes, will be in Washington DC this week to meet with U.S. officials, business interests, and the International Development Bank (IDB). His agenda includes discussions about regional security issues, the gang truce and reduction of the murder-rate in El Salvador, as well as the temporary protective status (TPS) for Salvadorans. President Funes also said he would be meeting with business interests regarding the possibility of new investments in El Salvador.
Funes will meet with Secretary of State John Kerry to discuss, in part, security and the gang truce. Last month marked the one-year anniversary of the truce, which seems to have resulted in steep declines in the official homicide rate – the official murder rate in 2011 was 4,371 and in 2012 it dropped to 2,582. While gang leaders credit the reduction in homicides to their commitment in transitioning to a more peaceful society, the Salvadoran government has attributed the decrease to improvements in their security efforts. Funes will also meet with officials from the IDP and participate in a meeting on regional security issues.
Discussions with US officials about temporary protective status (TPS) for Salvadorans in the US are timely, as the US Congress is trying to pass comprehensive immigration reform. TPS allows many Salvadorans to live and work in the U.S., but they have limited rights and no clear path to residency or citizenship. Immigration reform is an opportunity to create mechanisms for Salvadorans to convert their TPS to a more permanent status, which will afford them more rights.
On Thursday, President Funes will meet with business interests that have “an important announcement about a multi-million dollar investment that they want to make in El Salvador.” Salvadoran officials said the meeting would be with “businesses that are willing to make important investments in the area of new technology.” The announcement comes during a time when the U.S. is encouraging the Salvadoran Legislature to pass a Law on Public-Private Partnerships (P3 Law) as a prerequisite to signing a second Millennium Challenge Corporation (MCC) compact. The P3 Law and the MCC are fairly controversial issues in El Salvador. While Funes is in favor of both, there is disagreement in his party over support of these new initiatives.
This trip is an opportunity for President Funes to convince U.S. officials that his administration is making the kind of progress (lower murder rates and more foreign investment) and reforms (P3 Law) they want before approving more aid or giving the Salvadoran Diaspora more rights.
Decriminalization, or legalization, of drugs in Central America is a hot topic in El Salvador and Guatemala right now. Last Friday, Inside Story Americas, an Al-Jazeera news program, ran a program on the effects of drug trafficking on Central America, touching on the pros/cons of decriminalization.
The program was in response to comments made last week by Guatemalan President Otto Perez Molina, who said he would be open to decriminalizing drugs in an effort to address Guatemala’s security issues. The comments came after a meeting with Salvadoran President Mauricio Funes who also said he is also open to the idea. President Funes stated,
“Our government is open to discussion on any proposal or measure which achieves a reduction in the high levels of consumption in our countries, but particularly (to reduce) the production and trafficking of drugs. As long as the United States does not make any effort to reduce the high levels of (narcotics) consumption, there’s very little we can do in our countries to fight against the cartels, and try to block the production and trade in drugs.”
Saving the discussion about the pros and cons of decriminalization or legalization for another blog post, an interesting point of these recent conversations is the growing emphasis on the failure of the U.S. to curb its demand for drugs. Al Jazeera cited a recent government report that found that 22.6 million Americans used illicit drugs in 2010, nearly 9% of the population. While the number of users dropped from 2.4 million in 2006 to 1.5 million in 2010, the U.S. remains the largest consumer of cocaine in the world.
The Inside Story panelists said the heads of state in Central America, and even Mexico and Colombia who have talked about decriminalization, may be discussing decriminalization in order to pressure the U.S. into taking more actions to decrease demand. Experts from around the world agree that the “war on drugs,” as it has been fought over the past 40 years, has failed. Even President Obama has acknowledged that the U.S. needs to address the demand issue, and treat the issue as a public health problem.
U.S. policies have yet to change, though. In 2011, the National Drug Control Strategy had a budget of $15.5 billion, and the expenditures were roughly the same as in previous years. Approximately 1/3 ($5.6 billion) of the federal budget for the war on drugs was allocated for treatment and prevention – an increase of $0.2 billion from the 2010 budget. The remaining $9.9 billion was allocated for law enforcement, interdiction, and international support, the same as previous years.
In addition to the well-documented affects on Mexico and South America, the U.S. demand for illicit drugs produced in South America and trafficked through Central America and Mexico have very real consequences in Salvadoran communities.
El Salvador, Honduras, and Guatemala now comprise the most violent region in the world. While police officials blame 90% of the murders on local youth gangs, other government agencies, recently demoted police officials, and civil society organizations believe the violence is the result of international organized criminals who are trafficking drugs, guns, people, and laundering money. They estimate that only 10-20% of El Salvador’s murders are attributable to local gangs. The high murder rates have resulted in such insecurity in El Salvador that the U.S. aid program, Partnership for Growth, indentified it as one of the country’s two primary barriers to economic growth.
Traffickers use border communities, coastal villages, and other regions to move shipments from South American producers to North American markets. But they don’t just use these communities quietly – they often take them over, corrupting local government and police officials, making sure that local citizens and law enforcement do not interfere with their activities.
Along the coast, traffickers use small villages, ports and tourist destinations to refuel the small boats they use to transport drug shipments by sea. They also use these villages to transfer shipments that arrive by boat to cars and trucks, which then continue the journey north via land routes. Traffickers use communities along El Salvador’s borders with Honduras and Guatemala to move shipments without interference from border agents.
The cartels control these towns by putting local government and police officials on their payrolls. In turn these officials arrange for locals to move and provide security for shipments, and make sure that law enforcement agencies do not interfere. The local government and police officials maintain a culture of lawlessness that prevents political opposition and limits civil society.
While it remains unclear how decriminalization or legalization would affect Central American communities, experts and even President Obama agree that the long-term solution must include a decrease demand in the U.S. Unfortunately, U.S. officials have yet to shift their priorities, forcing Central and South American governments to discuss other options. And until the U.S. can kick its cocaine problem, the violence will continue and the cartels will continue to control communities throughout the Americas.
Today the U.S. Embassy in San Salvador announced an aid package worth $50,000 to support the Salvadoran Ministry of Civil Protection’s efforts to respond to the worst flooding in the country’s modern history. The package will help buy “fuel for emergency vehicles, as well as portable kitchen sets and hygiene kits for people staying in government shelters.”
The Embassy statement also says that they are “distributing equipment that was previously donated to the government of El Salvador by USAID in anticipation of this type of emergency.” The equipment includes plastic sheeting, 2800 hygiene kits, shovels, and other tools.
In a similar announcement, La Prensa Grafica is reporting this evening that the International Development Bank is releasing the first $25 million of a $50 million loan package. President Funes tonight said that the funds will be used for recovering from the disaster. The La Prensa Grafica article also reports that the governments of Spain, Taiwan, Guatemala and the United States have offered assistances, as has the Central American Bank of Economic Integration and the United Nations Development Program, but it is unclear whether any support has actually to reach those in shelters.
President Funes tonight also confirmed that there are 32 confirmed deaths in El Salvador, and that 3 other people are reported as missing, and 32,000 are evacuated to emergency shelters.
Another article in La Prensa Grafica reports that the Legislative Assembly today voted unanimously to declare a national emergency for the next 60 days. In part that waives all duties on aid coming into the country from aid organizations.
While the US Embassy’s contribution is a nice start, the international community seems a little slow to respond. The flooding, at least in the Lower Lempa region of Usulután, has reached epic proportions. There are thousands of people in shelters with no food or water, and many others are still stuck in their communities.
Perhaps the lack of international aid is linked to the lack of coverage by the international media. The AP put out a story yesterday that was carried on the Huffington Post, and the blogs for a couple major news outlets. But a quick scan of some of the major news websites (NY Times, Washington Post, CNN, BBC, NPR, Al-Jazeera English) found not one story on the flooding in Central America; forget about a story focusing on El Salvador. Maybe that will change with tomorrow’s news cycle.
This apparent lack of attention makes your contribution and support all the more important. Please help us in two ways:
1) Click on the Donate Now button and make a financial contribution to flood relief – we’ll make sure it gets directly to the community; and
2) inform others about the devastation and ask them to make a contribution.
We’ll be providing another update tomorrow morning.
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.
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.
Evidence is mounting that the Mexican paramilitary group Los Zetas has begun to infiltrate El Salvador in search of weapons. The recent seizure of 1,812 grenades is now suspected to have been destined for a group of Zetas in Guatemala. News sources have linked the stolen grenades have implicated a recently vanished army major with ties to the Zetas.
Los Zetas is a Mexican cartel that includes many former members of the Mexican Special Forces. The gang is sophisticatedly organized and brutal, and its members are intelligent and very well trained. It is estimated that about 35,000 people have died in Mexico since Mexico’s president, Felipe Calderón, started cracking down on drug trafficking and organized crime in Mexico in 2006. Calderón’s mandated closing and patrolling of spaces and territories in Mexico that were known to be dominated and controlled by drug cartels, namely Los Zeta, has been effective, and has spurred parts of the gang to migrate to locations where the can more easily operate.
Funes has explicitly stated that there is a group of Los Zetas that is exploring El Salvador, trying to form alliances or open relations with local gangs and drug traffickers. He doesn’t necessarily believe that gang members will settle in El Salvador, as they are currently doing in Guatemala, but he worries that they are arriving with the intent of acquiring assault weapons. Funes reasons that there are many weapons in the hands of Salvadoran civilians that have not be registered or legalized as a consequence of 12 years of civil war within the country. This makes weapons transfers easy and virtually undetectable, providing a prime opportunity for the Zetas to acquire arms in El Salvador.
However, others have raised the specter of a more permanent move by Los Zetas into El Salvador. In addition to its abundance of weapons, El Salvador’s use of the US dollar may make it an easy place to launder drug money. Recent seizures of large amounts of cash and the discovery of a purported Zeta training camp in the vicinity of Guazapa have added to fears that the drug war may have found a new battleground.
Salvadoran President Mauricio Funes condemned the murder of environmental activist Juan Francisco Durán Ayala, according to a press release issued yesterday. He went on to express sympathy for Durán’s family and acknowledge the loss that this murder and others that have occurred in Cabañas represent for the environmental movement. The president offered to provide “more security to the environmental movement, because its struggles and demands are just,” before reiterating his opposition to the Cabañas mining project. “I will not put the public health of the population at risk in exchange for some additional income that we could receive,” he said.
PRESIDENT FUNES CONDEMS THE MURDER OF AN ENVIORNMENTALIST FROM CABAÑAS AND REAFIRMS HIS OPPOSITION TO MINING
Today, the President of the Republic, Mauricio Funes, emphatically condemned the murder of Juan Francisco Durán Ayala, a volunteer with the Environmental Committee of Cabañas, which was carried out by unknown subjects June 3rd.
“As President of the Republic I lament any murder that happens in the country, regardless of motives, of course I feel the pain of the family and the environmental movement in loss of these four leading environmental defenders” expressed President Funes upon condemning the murder of Durán Ayala and the three other environmentalists who have been killed in recent years in the department of Cabañas.
Durán Ayala, 30 years old, was disappeared last June 3rd, one day after he was hanging signs about the campaign against mining in the city of Ilobasco as part of his environmental activism.
President Funes said he would ensure the will and the investigative capacity of the Civilian National Police Force, to be able to identify those responsible for the murder and moreover he offered to give “more security to the environmental movement, because its struggles and demands are just.”
“I will not allow any mineral exploitation project in the country, I have said that and it is my official position”, affirmed the Chief of State and he reiterated that the Ministry of the Economy has clear instructions not to authorize any mineral exploitation projects in the country.
President Funes pointed out that he is convinced that even when a mining project can bring some jobs and income for the government through taxes, the cost of the environmental impact and the damage to public health is much greater.
“I will not put the public health of the population at risk in exchange for some additional income that we could receive,” the President emphasized.
A few weeks after President Funes signed Decree 743 into law, requiring the Constitutional Court to make decisions by unanimous consent, Salvaodrans remain very concerned about the impact of the law and how the current standoff between the judicial and legislative bodies of government will play out. We now know that President Funes was involved in formulating Decree 743, and two representatives of his own FMLN were supportive of the measure, going as far as to ask the President to sign the bill into law the day it passed the legislature. This is contrary to the impression given by an FMLN press release last week that indicated it was the right-wing parties that pushed the bill through. ARENA party representatives were in fact supportive of the bill, but shortly after it became law, party leaders seemed willing to back its repeal. Their early support of Decree 743 was apparently motivated by their fear that the Constitutional Court was going to repeal the Amnesty Law as well as the law that ratified the Central American Free Trade Agreement. In expressing willingness to support a repeal of the law, the ARENA said they were misinformed about the law, but it seems more likely that they were reacting to the public’s disapproval of the law and saw a way to get an advantage in the 2012 municipal and local elections.
Another notable update is that the President did not in fact sign the original version of the decree that was passed by the Legislative Assembly; instead, he signed a one paragraph version of it. The missing four paragraphs of the measure included provisions that indicate what will happen if not all five magistrates are present may it be due to vacancies, inabilities to serve, absences, or any other circumstance.
As this crisis unfolds, one thing is clear – President Funes is losing support from all sides. His approval ratings have plummeted to 41%, down from 83% in April. While he may recover some of that support, its an understatement to say that President Funes spent some of his political capital on Decree 743, and it still remains unclear what he got in return. Maybe he didn’t expect such extreme fallout?
The FMLN is not united on this issue either. Though some have supported Decree 743, former Secretary General of the FMLN, Fabio Castillo said that after years of supporting the President, he now regrets voting for him in 2009. Shortly after his statement, Castillo was asked to resign from his current position in the consulting commission of the Ministry for External Relations.
Norma Guevara, a department secretary of the FMLN, says that she has proof that FUSADES, a non-profit organization that is often called a right-wing think tank, caused this constitutional conflict in order to destabilize the government. Whether or not this true remains to be seen, but it is certainly reasonable to think that organizations and individuals view this as an opportunity to discredit and weaken the Funes Administration.
The President was recently in Mexico from June 20-21 on a state visit aimed at addressing several of the issues facing both El Salvador and Mexico, such as migration, gang violence, commerce, and climate change, among other things. This visit comes amid this power struggle among the branches of government in El Salvador. With many people calling for the repeal of this decree, it will be interesting to see what actions will be taken upon President Funes’ return after a subsequent security conference in Guatemala.
Last week we posted two stories about Decree 743 – the controversial law that requires El Salvador’s Constitutional Court to make decisions by unanimous consensus instead of a four-vote majority as in the past. Due to the makeup of the court, decree 743 essentially renders the court powerless.
There has been a lot of movement around this issue since our last update – the following are highlights from the week’s developments. Despite all the statements from government officials, legal experts, civil society leaders, and others, there is still a lot that remains unclear about the politics behind the passage of Decree 743 and how the current debate over the law will play out.
Thursday, June 2
The Legislative Assembly passed decree 743 with the support of the PCN, PDC, GANA, and ARENA conservative parties. Left and centrist parties FMLN and CD legislatures abstained from the vote, meaning that they did not vote against the bill, but just didn’t participate.
President Mauricio Funes signed Decree 743 into law.
Friday, June 3
Decree 743 is published in the Diario Oficial, at which point it took effect.
Sigfredo Reyes, the FMLN President of the Legislative Assembly, called Decree 743 a “tragedy for democracy.”
By late afternoon, protesters had organized a demonstration in front of the Presidential Palace in San Salvador. Organizers used text messages and social media to spread the word of the protest and several hundred participated.
Saturday, June 4
In the morning civil society organizations met to discuss Decree 743 and to organize a movement against it. They also agreed on organizing a larger protest at 3:00pm on Sunday at the Salvador del Mundo Monument, in San Salvador. They created a Facebook page and twitter accounts, and reached out to communities through phone calls and word of mouth.
The FMLN party issued an official statement denouncing Decree 743.
Sunday, June 5
Over five hundred people representing all sectors of Salvadoran society participated in the protest at the Salvador del Mundo. Civil society representatives used a pickup truck as a makeshift stage and a loud speaker to denounce the law and voice their opinions on the impact of Decree 743 if it is allowed to stand.
Monday, June 6
Civil society organizations met again at the University of Central America (UCA) to continue discussing their opposition and planning a strategy to challenge the new law.
President Funes responded to the objections of Decree 743, stating that it is constitutional and not a restriction of the judiciary. He argued that the law promotes democracy by requiring all of the justices to come to an agreement before making a decision on a case. President Funes also stated that the process for drafting and passing the law was transparent and not done under the table.
The Constitutional Court declared Decree 743 unconstitutional.
Tuesday, June 7
Thirty-five civil society organizations held a press conference in which they demanded that the Legislative Assembly repeal the law.
The Constitutional Defense Forum, a Salvadoran organization, filed a lawsuit with the Supreme Court against Decree 743.
Wednesday, June 8
The Funes Administration began to evaluate Decree 743 and the possibility of repealing the law.
Medardo Gonzalez, the Secretary General of the FMLN, demanded that the Supreme Court recognize Decree 743 as law (yes, in contradiction to the FMLN’s Saturday statement opposing the law). In addition, he called the controversial decisions by the Constitutional Court “rebellious and irresponsible” and said that they were motivated by ideological and political motives.
The right-wing ARENA party called for the repeal of Decree 743 and asked that the FMLN join them. Former president and ARENA leader Alfredo Cristiani stated that ARENA’s support of the decree was based on misinformation that the Court would abolish the Amnesty Law and the law the enables CAFTA. He said now that he knew the Court will ‘defend’ the Amnesty Law, he will support the repeal of the decree.
The FMLN met in the afternoon to organize their stand on the law and their next steps.
Just before 4 pm, Salvadoran attorney Manuel Antonio Cortez Meléndez filed a claim with the Constitutional Court claiming that the Amnesty and CAFTA laws are unconstitutional. These cases had never been formally submitted to the Court prior to this point.
PDC officials motion to remove the four magistrates from the Constitutional Court for not complying with Decree 743 and declaring it unconstitutional.
Thursday, June 9
Civil society organizations organized another protest, marching from the Salvador del Mundo monument to the Legislative Assembly. Marchers demanded the repeal of Decree 743 and transparency in the process. One of the main complaints by civil society organizations is that the Legislative Assembly and President Funes were not transparent in passing the law or in discussing their justifications for the law. Once the marchers arrived at the Legislative Assembly, they demanded entrance but only a few were allowed in. Those who remained outside threw eggs at the entrance in protest. On the floor of the Assembly, Diputado Orlando Arevalo (an Independent) accepted a petition from the protestors.
Early in the day, FMLN representatives announced that they will not support ARENA’s efforts to repeal the law, stating that they have to work with the PDC, PCN, and GANA to “get themselves out of the mess they helped create.” They also refused to meet with civil society representatives, inciting the egg throwing.
Later in the day, representatives from the FMLN, PDC, and PCN stated that they would support repeal of the law, but only if the four magistrates from the Constitutional Court “demonstrated a change in attitude and don’t invade the functions of the Legislative Assembly.” Medardo Gonzalez stated, “the Court has to change, and if there is change, of course the FMLN will be the first to ask for the repeal of the decree.”
All five magistrates of Constitutional Court met with members of the Legislative Assembly for four hours in the afternoon. They insisted that they did not negotiate sentences or decrees, and simply clarified ‘misunderstandings’.
President Funes also released a statement expressing concern over the protests and further justifying his support of the law. His three arguments for supporting Decree 743 are: 1) The decree is constitutional in form and substance; 2) it was presented to prevent the judiciary and legislature from becoming embroiled in conflict; and 3) it does not prevent the Court from acting, and the magistrates are able to achieve consensus. He also stated that the ARENA declaration on Wednesday implies intervention and upon investigation could lead to the removal of any magistrates found negotiating with the Legislative Assmebly representatives.
Friday, June 10
President of the Supreme Court of Justice, Belarmino Jaime, publicly denies the existence of an agreement between the Court and either ARENA or Alfredo Cristiani.
The Secretaries General of both FMLN and PCN, Medardo Gonzalez and Ciro Cruz respectively, emerge from a multilateral meeting between the courts and the parties stating the willingness of their parties to sign on to a bill to repeal Decree 743.
ARENA denies the allegations by President Funes that an agreement was in place between them and the Court, and criticizes Funes for saying so.
The Archbishop of San Salvador urges the parties to work together to solve the crisis, expressing a wish for all sides to defend the people and the common good.
Monday, June 13
ARENA’s proposal to repeal Decree 743 received no response from the Committee on Constitutional Legislation and Legislative Assembly.
FMLN, GANA, PDC and PCN all declined to vote in favor of the repeal.
Medardo Gonzalez, Secretary General for the FMLN, now says the FMLN will not support the repeal of the decree in any fashion.
The debate over Decree 743 is far from over, and much seems unclear (at least from our vantage point). It seems that it is questionable whether the new law is even in force – last week four of the five Constitutional Court magistrates joined an opinion stating that it was not, which means that the repeal being discussed is not even necessary. It also remains unclear why Cristiani and some in the ARENA party are willing to support the repeal. Perhaps they see this as an opportunity to appeal to the wide sectors of Salvadoran society that oppose the decree in advance of the 2012 municipal and legislative elections.
Funes’ support for the law is also confusing, as well as lacking. The Constitutional Court is one of the only government entities that has been implementing the kinds of change that the President championed while campaigning in 2008-2009. His argument that the law prevents conflict between the legislative and judicial branches of government is wanting – such tension is common and a healthy element of the democratic process. Funes’ argument that Decree 743 is constitutional in both form and substance is circular – sayin’ it is, don’t make it so.
What seems very clear at this point is that civil society organizations did not have an opportunity to comment on Decree 743 until it was already signed into law. But judging by the the numerous statements made since the controversy began, politicians are concerned what civil society has to say and how the people might respond in 2012.
Over the weekend, El Salvador continued to react to Decree 743, which the Legislative Assembly passed Thursday and President Funes signed into law on Friady. As we posted on Saturday, decree 743 requires all five magistrates of the Constitutional Court to sign off on a decision before it becomes binding. The law is targeted at the four progressive magistrates (Belarmino Jaime, Florentín Meléndez, Rodolfo González y Sidney Blanco) that have taken on several controversial issues since joining the court two years ago.
Salvadorans protested Friday afternoon at the Presidential Palace and again yesterday at the Salvador del Mundo monument in San Salvador, where hundreds gathered. Organizers of the protests have used Facebook, email, text messages, and other social media to increase turnout at events and inform people of the potential importance of the law (click here for the movement’s Facebook page). The protest was notable not so much for its size, but for the diversity of people in attendance. People from all sectors of Salvadoran society were there – rich, poor, and those somewhere in between. (Click here for photos from Sunday’s protest).
Yesterday, the four Magistrates affected by the law issued a statement that the law is unconstitutional and inapplicable. El Mundo reports that they are working on a decision declaring the Decree’s unconstitutionality, and that they will publish it soon. According to the El Mundo article, their announcement may result in a protracted power struggle between the branches of government, as the judiciary fights to maintain its independence from the politics that drive legislators and administration officials.
The FMLN party also issued a statement on Saturday denouncing Decree 743. Their statement criticizes the right wing parties (ARENA, GANA, PNC, and PDC) that together have a majority in the Legislative Assembly, but fail to mention that President Funes, who ran as an FMLN candidate, signed the bill into law.
In addition to the FMLN, Attorney General Romeo Barahona denounced the law stating that it is unreasonable to think that a Constitutional Court can accomplish anything by unanimous vote. Other politicians from the left and right have also expressed concern over the law.
The El Mundo article argues that there are many reasons why right-wing parties would want to shut down the current Constitutional Court. We discussed several controversial decisions in our post on Saturday, but the El Mundo article believes it has more to do with the recent indictments of twenty Salvadorans in a Spanish court for their role in the 1989 murders of the six Jesuit priests, their housekeeper and her daughter (today El Faro posted an interesting article on that case). The current Constitutional Court has indicated that if INTERPOL issues an arrest warrant for anyone associated with that or other international cases, El Salvador must turn them over. Similarly, the El Mundo article believes that the current court is a threat to the amnesty law, which prevents the prosecution of crimes committed during El Salvador’s twelve-year civil war that ended in 1992. If the amnesty law were struck down as unconstitutional, ex-president and current leader of the ARENA party Alfredo Cristiani and many others could be prosecuted for numerous crimes detailed by the UN Truth Commission or other post-war investigations.
Over the past two years, the Constitutional Court has played an important role in strengthening democracy and government in El Salvador, and now the powerful interests they have taken on are striking back. Decree 743 has brought El Salvador to a real crossroads. If the law stands, the Constitution and rule of law will be significantly weakened, and its affects will endure long after the provisions expire in July 2012. If the members of the Constitutional Court and civil society can prevent implementation of Decree 743 and maintain the integrity and independence of the Court, the institution will be stronger for it, and may inspire more Salvadorans to believe in the rule of law and El Salvador’s developing democratic process.
As of Friday, June 2nd, the Salvadoran Legislative Assembly and the Presidency succeeded in sabotaging the Judiciary. A legislative initiative led by the National Coalition Party (PCN) proposed to change the process by which the Constitutional Court operates, requiring unanimity among the five magistrates on the bench to approve a decision. Such consensus is rare and would essentially prohibit the court from producing new decisions. Without deliberation, debate or amendments, the legislation passed Thursday afternoon and PCN representative Elizardo González Lovo left the assembly before the session was over to take the reform directly to the presidential palace to be approved or vetoed. To the dismay and shock of many, President Funes signed the reform within hours and it was made effective immediately.
The reform is an overt attack against four of the Constitutional Court magistrates whose term began in July 2009 following the election of current President Mauricio Funes. Their three-year term will expire in July 2012, and the drafters of the legislation included a sunset provision so that the unanimity requirement will expire in July 2012, after the four are off the bench.
Since becoming magistrates in 2009, Belarmino Jaime, Florentín Meléndez, Rodolfo González y Sidney Blanco have chosen strategic cases to strengthen national institutions and target corruption within government agencies. Over the past two years, the four magistrates have passed down some very important decisions, while the fifth magistrate, Nelson Castaneda, has mostly abstained from votes. In one example, the Court condemned a law that reallocated funds left over from the general budget to the President’s discretionary account. They also declared as unconstitutional the practice of limiting voters to elect only a political party and then allowing the party leadership to select the people who would fill legislative or other representative seats. In a related issue, the Constitutional Court struck down a ban on independent candidates, weakening the power that political parties have over the electoral process. Members of the Constitutional Court also declared unconstitutional the absolute control that the Attorney General’s Office has over what cases are investigated and prosecuted. The decision that caused the greatest controversy in recent weeks was their declaration against the 2005 reforms that allowed the PCN and PDC parties to continue participating in elections despite their in ability to secure the number of votes necessary to be put on the ballot or have representation on the Supreme Electoral Court.
While these sentences establish clear separation of powers and support transparency, they each considerably affect the powerful grip that the country’s respective political parties have held over Salvadoran governability.
The new law requiring unanimous consent to issue a ruling essentially takes away the court’s ability to take on any of these controversial issues. The timing of the law is not accidental. The Court was about to take up the issue of the “Dividend System” that guarantees seats in the Legislative Assembly for minority political parties, specifically the PCN and PDC.
As the reform was being rushed through the legislative process ARENA representative Ávila Qüel exclaimed, “The reform doesn’t favor institutionalism at all!” and reminded the Assembly that the Constitutional Magistrates are who dictate whether the Magna Carta has been violated, and even if he isn’t in agreement with their sentences, they must be respected. Before leaving the Assembly in protest, he cried, “Somebody should interpret the Constitution!”
This law and Funes’ support of it is wrong for many reasons. It is a settled principle of democracy that the Judiciary be independent of the Legislative and Executive branches, and left to interpret the constitution and law free from political interests. This new law is an overt action to protect political interests from actions of the court, and punish magistrates for taking on entrenched political and economic interests, as well as corruption. The law also sets a dangerous precedent that subjects the Judiciary to the will and interests of the Legislative and Executive branches.
Debate and dissent are at the very heart of democracy. El Salvador has a civil law system, yet their judicial code has always stipulated voting by majority. Unanimous voting closes the door to dissenting opinions, because the court must present only one opinion. Dissenting opinions create a dialogue between past, present, and future courts, in that it allows courts to rely on their predecessors when overturning precedent.
Civil society from all sectors of the political spectrum have expressed their concern. Also, the Organization of American States is meeting in San Salvador this weekend, and civil society will present a report to the Secretary General to demonstrate that the law violates the Inter-American Democratic Letter. Tomorrow there will be a demonstration at Salvador del Mundo at 3pm, and Monday morning there will be workshops at the UCA.