2014 Elections

El Salvador’s Constitutional Court Considering Claim Against Presidential Candidate Tony Saca

The Constitutional Court of El Salvador yesterday accepted a claim filed by Ramiro Peña Marín y Wilmer Humberto Marín Sánchez that the presidential candidacy of Tony Saca is unconstitutional.

The Court is considering three claims – 1) Saca, who was President of El Salvador from 2004-2009, isn’t eligible to run again until 2019; 2) he is guilty of fraud during his presidency; and 3) he has shares in corporations that have state contracts, which is a violation of Article 127 of the Constitution.

Tony Saca, who is running as a candidate for the UNIDAD party, is not the defendant in the case; rather it is the Supreme Electoral Tribunal that has to prove the constitutionality of their decision to certify his candidacy. The Court has given them 10 business days to submit a brief justifying their certification of the Saca candidacy. After the TSE has submitted its brief, the Court will send the case to the Attorney General’s Office to get their opinion.

The first claim argues that a former President cannot run for another term until he has been out of office for an entire term. Article 152 of the Constitution says, “The following shall not be candidates for the President of the Republic:

1st – He who has filled the Presidency of the Republic for more than six months, consecutive or not, during the period immediately prior to or within the last six months prior to the beginning of the presidential period.

The plaintiffs argue that the former president is ineligible to run again until after the new President takes office in 2014, and he couldn’t begin a second term until 2019.

The second argument is that Tony Saca committed fraud in 2009 when his administration submitted its final report. The plaintiffs argue that there was no way the administration could complete the report appropriately until those who had positions in the administration had finished going through their final audits, which did not happen until 2010.

The third argument the Court is considering is that Tony Saca is ineligible to be President because he holds shares in corporations that have government contracts. Article 152 .7, which refers back to 127 .6, of the Constitution prohibits a President from having government contracts. The plaintiffs argue that his ownership of Grupo Radial Samix, which has government contracts, makes Saca ineligible to run. They also argue that his involvement in the National Telecommunications Administration, which also has government contracts, makes him ineligible. Saca has argued that he transferred interests in these corporations to family members to avoid a conflict with the Constitution, but the plaintiffs argue this was insufficient and just an attempt to circumvent the constitutional requirements. He also argues that the concessions were to corporations, and while he was on the board of those corporations he did not own the concessions.

Tony Saca responded to the claims by saying he is sure the Constitutional Court will resolve the claim in his favor. He also said the claims show that the ARENA party is afraid of his candidacy and that they have had to resort to a dirty campaign. The former president also pointed to polls that show his candidacy will guarantee that no one candidate will win 50% of the vote on election day, forcing a runoff.

There were six other claims of unconstitutionality related to the Presidential Candidates – 4 others against Tony Saca (UNIDAD), one against Norman Quijano (ARENA), and one against Sánchez Cerén (FMLN). The court did not validate these complaints; they only agreed to consider the three against Tony Saca.

El Faro.net points out that if the Court agreed to hear the case, it means that there is a real constitutional issue to debate – this is not just a formality. All five members of the Court signed off on the decision.

Tony Saca is not having a good week in the press. On Tuesday (November 19, 2012) El Faro published an interesting report on Saca’s earnings during his presidency. They found that in 2003, the year before he became president, Saca was worth roughly $600,000 and had an annual income of  $200,000. By 2009 and the end of his Presidency, Saca was worth $10.5 million, more than 16 times what he was worth the year before he was sworn in as President.

If the Constitutional Court decides to annual Saca’s candidacy, it will most likely favor Norman Quijano and the ARENA party. Polls indicate that Saca is splitting the more conservative votes, giving Cerén and the FMLN a boost. The argument is that if Cerén can’t win in the first round, he’ll be able to peel away enough Saca supporters to win in the second and become President.

The last polls from La Prensa Grafica, however, show a close race with the Cerén and the FMLN ahead with only 29.4%. Quijano and the ARENA are close behind with 28.3%, with Saca is a distant third getting only 9.8% of the vote. Approximately 30% of voters remain undecided, which means this race is still far from over.

El Salvador Government

Legislative Assembly Reaches Agreement on New Attorney General

It appears the Salvadoran Government will avoid another institutional crisis by selecting a new Attorney General for the three-year term that is to begin on September 19, 2012.

A conflict arose on April 25, 2012 when the outgoing Legislative Assembly chose Astor Escalante to be the next Attorney General of El Salvador. At 1:00 in the morning, Sigfredo Reyes, President of the Legislative Assembly, swore him in, even though his term would not start for another 5 months.

Members of the ARENA party objected to his appointment and filed a complaint in the Constitutional Court. In July, the Court ruled in their favor declaring Escalante’s appointment unconstitutional. The based their decision on the principal that each Legislative Assembly (which serves a three year term) has the responsibility to appoint a specific number of judges, as well as the nation’s Attorney General. In April, the outgoing Legislative Assembly, which appointed Romeo Barahona when they took office in 2009, appointed Escalante to serve for the next three years. This was their second appointment and if it stood would have essentially denied the current Assembly an appointment.

The Court handed down its decision while it was embroiled in its own crisis; many, including Escalante, said that the Court’s decision was invalid. With the summer’s crisis resolved, some feared another institutional battle over Escalante’s appointment.

According to La Prensa Grafica, the Legislative Assembly has reached a decision that will avert a new battle between the legislative and judicial branches. Yesterday stakeholders met to discuss a resolution and it appears they will void Escalante’s April appointment and start the process again so the new Attorney General can take office on September 19, 2012. They will choose from the same list of 47 candidates that were considered in April, and it is possible that Escalante may be chosen again – the fight was over the process not the person. Sigfrido Reyes clarified yesterday that the decision reached by the working group was a political compromise, and not an indication that they agreed with the Constitutional Court’s decision.

Prior to the meeting, the Catholic Church, the President and others asked that the Legislative Assembly resolve the issue before Barahona’s last day on September 18. President Funes even offered to mediate between the parties, but it appears that won’t be necessary.

The online news journal La Página had interesting political analysis back in July when they reported on the Constitutional Court’s decision. It was the ARENA block of the Legislative Assembly that objected to Escalante’s appointment, even though the ARENA supported his appointment during the Saca administration. In the months after leaving office, former President Saca was ousted from the ARENA party. The split was ugly and when Saca joined the GANA party, ARENA labeled him a traitor. Members of the ARENA objected to Escalante now because he supported Saca during the split. It will be interesting to see if Escalante will have the support of this new Legislative Assembly, which has a few more ARENA representatives than it did in April.

El Salvador Government, Mauricio Funes, violence

Funes’ First Year

On Sunday, Linda Garrett from the Center for Democracy in the Americas published a defense of Funes’s first year in office.  She argues that his administration “assumed the mantle of power of a polarized country nearly bankrupt, wrought with poverty, violence, corruption and fragile democratic institutions.”

She applauds the administration for providing new social programs, financing agreements for the next five years, and his public apologies for such past crimes as the assassinations of Monseñor Romero in 1980 and the Jesuits in 1989.   She also cautions readers of the importance of supporting his administration in the face of the current violence and public insecurity that has dominated the news in the past few weeks.  This week’s headlines are evidence of this administration’s harried response.

Funes has reacted to each mounting case of violence with bolder and more repressive measures.  He deployed the military to work along side the civilian police soon after his inauguration.  On June 1st of this year he announced that the military would also intervene in the prisons, which they rushed to implement after the Sunday bus massacre in Méjicanos.  They are now partnering with Migration to patrol the un-manned border crossings, notorious for moving drugs, stolen vehicles, and undocumented people.

In a widely distributed public announcement Funes says social and preventive programs are important for the long term, but repressive measures are necessary now. The Ministry of Public Security is expected to present a bill to the Legislative Assembly in the coming days to outlaw gang membership.  During a press conference reporters asked how police would identify gang members.  Henry Campos, the vice minister for public security responded “by tattoos and other types of evidence”.  A law based on the same premise was declared unconstitutional in 2004.

But Funes made a pointed demand from the Attorney General’s office during his June 23rd speech addressing the bus massacre – the same speech where he announced the new bill.

“The fight against organized crime, delinquents and criminal groups is a task of every State institution.  This means not only the government must do its job well.  We need the public prosecutors and judges to also do theirs.”

The Attorney General’s office is an autonomous institution, and appointments come from the Legislative Assembly.  The ex-attorney general Astor Escalante told the press on Monday that of the 100 homicide prosecutors, only 30% have actually received any training.  The institution appoints prosecutors with very few requisites; there is no policy to recruit prosecutors who have actually won convictions.  At the end of 2009 this group of elite homicide prosecutors had 16% conviction rate.

Garrett is right to call for continued international support of a Funes administration battling violence and weak institutions with very few resources.  That does not mean an acceptance of reactionary and repressive measures – often the most accessible means for the ‘commander in chief’.  Funes needs public pressure to uphold ethical and progressive reforms more than ever; and he especially needs allies for strengthening institutions that he has little power to control.