Environment, Uncategorized

MARN Weak in Wake of Molasses Spill

DSC_0723Last week the Magdalena Sugar Mill in Santa Ana spilled 900,00 gallons of hot molasses into the Magdalena River, causing an environmental disaster. The spill is a reminder of how impotent the Ministry of the Environment is in protecting El Salvador’s natural resources.

In August 2015, the Constitutional Court ruled that the Ministry of the Environment cannot to impose fines against persons or corporations that violate environmental laws. The Environmental Court can find someone guilty of polluting, engaging in harmful activities without an environmental permit, or any other violation, but they cannot impose a fine.

The problem is Article 89 of the Environmental Law. When the Environmental Court finds someone guilty of violating the law, Article 89 says the Ministry should impose fines based on the daily salary for urban workers in San Salvador. Day fines are a common tool in Latin American countries for measuring appropriate penalties. If a person or business cuts down a forest without permission, or spills molasses into a river, the court can (in theory) fine them the equivalent of 2-100 or 101-5,000 days salary depending on the severity of the crime. The dollar amount of the day salary is based on the minimum wage for urban workers in San Salvador. Unfortunately, the minimum wage decree does not have a category for urban workers in San Salvador, therefore the Constitutional Court said the Ministry cannot levee any fines.

Following the molasses spill, the Environmental court ordered the Magdalena Mill to issue a public apology by taking an ad out in El Salvador’s two largest newspapers. They also have to come up with a cleanup plan. But the Ministry cannot impose a fine or otherwise punish the Mill. Their only real loss is the revenue that selling 900,000 gallons of molasses would have brought in had they not spilled it. At $150/ton, that would be a $789,500 loss. That is definitely a hit to the Mill, but it is not punitive nor does it compensate locals or the State for the damage to an important common resource and the clean up. El Salvador is in water crisis and damage to a river like the Magdalena is more serious than ever, especially to the 450 families that depend on it for their survival.

In December 2015 and again this week Environmental Minister Lina Pohl asked the Legislative Assembly to fix Article 89 so the Ministry can levee fines. It seems like this would be an easy one – they just need to change a couple words so that fines are based on an actual minimum wage or some other measure.

Unfortunately, the Legislative Assembly has a bad record on doing the right thing when it comes to the environment, food, and water. The current arrangement is ideal for powerful business interests – there is an environmental law but no real consequences for ignoring it. They can skip environmental permitting processes and pollute with impunity. These businesses have a lot of influence over the Legislature and are likely to oppose any effort to change Article 89, just as they have opposed the General Law on Water proposed in 2005 and efforts to amend the Constitution to recognize food sovereignty and access to water as basic human rights.

Residents of the Bajo Lempa region of Usulután have seen the Ministry’s impotence in action (or inaction). In trying to stop sugarcane growers from planting crops near mangrove forests, community leaders asked Ministry officials to stop the project, arguing that the project did not have an environmental permit. The Ministry told the communities that they could only ask the growers to go through the permitting process but could not do anything to stop them.

The Ministry of the Environment is good at writing reports and declaring states of emergency, but their mandate is so much more than that. The Ministry is tasked with ensuring that Salvadorans enjoy their Constitutional right to a clean, healthy environment. The reports and states of emergency detail just how badly the Ministry has failed over the years.

This has to change if El Salvador is going to address the water crisis and other pending disasters. The Legislature must reform Article 89 to give the Ministry some teeth, but then the Ministry has to use those teeth to go after poluuters. Similarly, the Legislature has to pass the General Water Law as drafted by civil society organizations in 2005, and finally recognize that all Salvadorans have the right to food sovereignty and access to water.

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Advocacy

Salvadoran Human Rights Organization, Pro-Busqueda Attacked

At 4:45 am yesterday morning, three unknown assailants raided the offices of Pro-Busqueda, a human rights organization in El Salvador that for more than 19 years has worked to reunite families separated during the country’s 12-year civil war.

The assailants held a driver and night watchman at gunpoint while they destroyed files and computers, doused offices with gasoline, and set them on fire. A statement sent around by Pro-Busqueda yesterday afternoon said that the attackers targeted the offices most vital to their work, destroying archives and files related to cases that they have pending in the judicial system. When the attackers left, the night watchman and driver were able to free themselves and put out the fires with hoses

Ester Alvarenga, a Former Director of Pro-Busqueda and a member of the technical team said that the assailants had done the most damage in the administrative and advocacy departments. She also made it clear that they have all of their information backed up so it was a not a total loss.

Human Rights Ombudsman David Morales, who visited the scene shortly after the attack said it was well planned and was reminiscent of attacks on human rights organizations during the 1980s. He also said there hasn’t been an attack like this on a human rights organizations since the end of the war.

The specific reasons for the attack remains unclear, but it is likely related to cases pending in international and domestic courts related to the forced disappearances of children during the war. This past Monday, the Constitutional Court suspended evidentiary hearings against former members of the armed forces who did not attend their habeas corpus hearing, during which Pro-Busqueda was scheduled to present evidence they have collected against the defendents.

Just last month the Catholic Church closed Tutela Legal, one of the leading human rights organizations in El Salvador. The organization housed an extensive collection of evidence and documents related to human rights abuses committed during the civil war. The closing of Tutela Legal and the attack on Pro-busqueda come as the Constitutional Court considers constitutionality of the Amnesty Law, which has protected war criminals from being prosecuted for atrocities committed during the 1980s.

Tutela Legal and Pro-Busqueda are not the only organizations and people with evidence and records that could be used to prosecute crimes committed during the civil war. The Human Rights Institute at the University of Central America (IDHUCA) and others have been collecting evidence and documents since before the war ended, and could also be a threat to those who risk prosecution.

In March Voices staff had a conversation with Benjamin Cuellar, the director of the IDHUCA, about the Amnesty Law and the lack of transitional justice after the war. Instead of treating the Peace Accords as the beginning of the peace process, the Salvadoran government and many international stakeholders were too quick to declare peace and put the war in the past, ignoring issues of justice. But it is difficult if not impossible to achieve peace until there is also justice.

Womens issues

Constitutional Court Says Beatriz Cannot Terminate Her Pregnancy

The Salvadoran Supreme Court handed down a 4 to 1 decision denying Beatriz’ request to terminate her 26-week fetus, which doctors say has a fatal anomaly and will not survive childbirth.

Over the past couple months, Beatriz has gained international attention because she has lupus, an autoimmune disease that has damaged her kidneys and resulted in other health problems. If forced to carry her pregnancy to term she faces any number of life-threatening complications including kidney failure or preeclampsia – pregnancy related hypertension.

El Salvador has an absolute ban on abortion that does not allow exceptions for the health of the mother or for rape or incest. In April Beatriz’s doctors and attorney appealed to the Salvadoran Constitutional Court, asking that her medical team be allowed to terminate her pregnancy without fear of prosecution and prison.

After weeks of contemplation, four of the Court’s five magistrates determined that if Beatriz and her doctors terminated the pregnancy they could be prosecuted under the abortion ban.

According to the BBC, Rodolfo Gonzalez, one of the four Magistrates who voted against allowing the termination, said he had not been convinced that Beatriz was at risk of dying if the pregnancy was allowed to continue. He also said that they could not turn the Constitutional Court into a “tribunal to allow the interruption of pregnancies.”

The Magistrates also said the rights of the mother cannot supersede those of the unborn child, and vice versa, that the rights of the fetus cannot supersede those of the mother. That logic, however, doesn’t seem to work in this case. Either way the court decided they would put the rights of the mother or the fetus over the rights of the other, and they decided that the fetus’ rights trump, even though it has no chance of survival.

The Court could have taken the opportunity to decide that El Salvador’s abortion ban is too extreme and that women should not have to carry pregnancies that are jeopardizing their health. In their appeal to the Constitutional Court Beatriz’s attorney was challenging the ban and asking for a broader decision that at least allowed for an exception when the mother’s life is at risk. A broader decision would have addressed Magistrate Gonzalez’s fear that the Court would turn into a tribunal for women seeking to terminate their pregnancies. But the Constitutional Court, which has showed some independence in recent years, does not appear ready to start protecting the rights of Salvadoran women.

Florentin Melendez, who was the only Magistrate to vote to allow Beatriz access to an abortion, said the court should have ruled in her favor to “guarantee that the medical personnel would not omit [any treatments] and would act diligently at all times, without having to recur to legal authorization to protect the life of the mother and the human being she is carrying in her womb.”

But this is already a serious problem in El Salvador. As reported by the New York Times Magazine in 2006, the absolute ban on abortion prevents doctors from, among other things, treating women with ectopic pregnancies – a condition in which the fertilized egg is implanted in the fallopian tube instead of the uterus – without risking imprisonment. That’s right… Salvadoran doctors cannot treat ectopic pregnancies, which have zero chance of survival and can be fatal for the woman, without being prosecuted for violating El Salvador’s abortion ban.

A Salvadoran women’s rights organization that has taken on Beatriz’s case indicated they are trying to help Beatriz travel to another country where she can safely and legally terminate her pregnancy.

But Beatriz’s case is not unique and that is not an answer for the thousands of other women in El Salvador that are or will be in her position. Women with ectopic pregnancies, preeclampsia, lupus or other illnesses regularly die alone at home or in an over-crowded maternity ward where they are being denied life-saving treatments because doctors fear prosecution.

And every year 13, 14, and 15 year old girls are raped by a family members or local boys and have to drop out of school because they are pregnant, all but guaranteeing they will spend their lives in poverty.

There is some discussion – not enough – about El Salvador’s extremely high femicide rate – the highest in the world. But repression and violence against women comes in too many forms, and El Salvador’s extreme abortion ban is just another way that Salvadoran society represses women.

As we have stated on this blog before, the hypocrisy behind El Salvador’s abortion ban is extreme and tragic. The wealthier classes that enacted and enforce the ban and stripped any meaningful sex-education from schools, have access to the full range of health services from their private doctors, including contraception and abortion. They can also afford to travel to the U.S. or other countries where they can safely and anonymously terminate their pregnancies.

For now, the Constitutional Court and much of Salvadoran society seems to be okay with that. But the conversation will surely continue because there will undoubtedly be more brave women to come forward.

El Salvador Government

Funes Appoints a New Minister of Justice and Security, and New Director of PNC

Yesterday President Funes announced he has appointed Ricardo Perdomo to be the new Minister of Justice and Security and Rigoberto Pleités as the new director of the National Civil Police (PNC, in Spanish). He also announced that Francisco Salinas will now head the State Intelligence Organization (OIE, in Spanish), and that David Munguía Payés, his former Minister of Justice and Security, as his security adviser.

The changes come after the Constitutional Court’s recent decision that Munguía Payés (former Minister of Justice Security) and Francisco Salinas (former Director of the PNC) were ineligible for their posts due to their military careers.

Justice and Security Minister Perdomo is an economist and political scientist, and in January 2012 President Funes appointed him as the Director of the OIE. These are not Perdomo’s first government positions. He held several posts in the Durarte Administration (1984-1989) including the President’s Private Secretary, President of ANDA, Minister of Economics, and the President of the Elections Council.

Before being assigned as the new Director of the PNC, Rigoberto Pleités was the Director General of Migration and Foreigners, a post he accepted in January 2012. Director Pleités is an electrical engineer and has a master’s degree in business administration. He has also served as the Director of Human Development at the Ministry of Education.

During his announcement, President Funes said that Perdomo “ought to continue with the work begun to reduce crime in the country over the last ten months of his administration.” He similarly said that as the new director of police, Pleités “should continue the assignment of modernizing the police force with an emphasis on reducing the amount of extortion and organized crime, particularly related to drug trafficking.

President Funes also said that while he did not agree with the Constitutional Court’s decision that Payés and Salinas were disqualified from holding their positions due to their affiliation with the military, it was his obligation to comply with the order.

 

 

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, News Highlights, Politics

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.

El Salvador Government, Mauricio Funes, Politics

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.