El Salvador Government, Mauricio Funes

The Debate Over Decree 743 Continues

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.

Timeline:

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.

Advocacy, El Salvador Government, Mauricio Funes, News Highlights, Politics

INSTITUTIONAL COUP IN EL SALVADOR

Photo Credit: El Faro's Mauro Arias

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.