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.

Corruption, El Salvador Government, Mauricio Funes, Politics

Among Apparent Rampant Corruption in the Region, El Salvador Ranks Surprisingly Low

The second part of USAID’s survey on the political culture of Latin America examined the effects of crime and corruption on democracy. As trust is a necessary facet of democracy, fear of violence and a lack of confidence in the police or other public officials are detrimental to its development.

When survey respondents were asked about their perception of personal security, 44% of Salvadorans reported feeling “somewhat” to “very” unsafe, the third highest level of insecurity in the Americas, ranking behind only Peru and Argentina. El Salvador also has one of the highest rates of violence in the Americas, so these results aren’t surprising. In fact, these abstract perceptions of insecurity are approximately in line with the crime respondents have actually experienced: 38.6% of households report having at least one member who was a victim of violent crime in the past 12 months (crimes specifically mentioned in the survey question are robbery, burglary, assault, fraud, blackmail, extortion, and violent threats). This rate places El Salvador in the group of countries with the highest levels of victimization, on par with Mexico and Venezuela – an alarming place to be. Generally, the young, the wealthy, and those who live in urban metropolitan areas are most likely to be victimized, though citizens with greater economic problems also report high levels. USAID interviewers further found that respondents in neighborhoods with gang presence (pandillas) were more likely to have been victimized, though it is impossible to determine from these data whether this is causation or simply coincidence.

After discussing crime, survey questions turned to the issue of corruption. When asked directly how common it was for public officials to be corrupt, 66.7% of Salvadoran respondents answered that it was “common” or “very common,” a decline from 2008, and only 8.2% believe the problem of corruption is non-existent. Though at first glance these rates may seem high, it’s important to note that this is the 2nd lowest rate of perceived corruption in Latin America, lower even than that of the United States (69.9% of U.S. respondents think corruption is common practice in the country). Furthermore, only 11.4% of Salvadorans polled said they had been victims of corruption: again, one of the lowest levels in Latin America. These numbers would appear to be heartening, but given what we know about El Salvador, they are mostly just perplexing.  Nor do the results match up with other surveys, such as Transparency International’s Corruption Perceptions Index, which places El Salvador more moderately, as the 16th most corrupt country in the region (out of 28).  According to Transparency International’s metrics, corruption in El Salvador definitely exceeds levels in the US, Chile, Costa Rica and Brazil, among others.

It is difficult to determine whether these responses of perceived corruption correspond to the real levels.  Any number of factors can influence the accuracy of responses, be it a misformulation of the survey questions, the well-known ‘honeymoon period’ of recently elected President Funes, who still enjoys a 72% approval rate, or the simple subtlety of corruption.  A cultural accustom to corruption, along with differing personal definitions of the term can greatly affect the public’s perception.  On the other hand, since there is no way to measure the actual level of corruption in a country, there is no evidence contrary to the survey’s results.  The level of perceived corruption could very well be an accurate representation of the level of practiced corruption.  Also, the percentage of those who perceive the country to be corrupt, puzzlingly, seems to be lower than that of those who note that police don’t protect their citizens.  Many people would consider corruption to be a factor in situations where police fall short of their responsibilities.

Perhaps this is because corruption motivated by power is inherently harder to measure than that motivated by money. Even financially-motivated corruption, however, is much more complex than the survey implies.  The only question used to assess the entire culture of actual (rather than perceived) corruption is about authority figures asking law-abiding citizens for bribes. This is where the survey’s information most significantly falls short of a full investigation of the issue.  Corruption is more than actions, it is a culture.  When it takes hold of a society, it builds impunity and a weak rule of law, which erode democratic values.

If the perception of corruption is so low, relative to the other nations in the region, then the lack of respect for the law is puzzlingly high. More than 52% of interviewed Salvadorans agree that officials would be justified in occasionally acting outside of the law in order to catch a criminal, giving El Salvador the 2nd lowest population support for rule of law. Moreover, just over 50% of citizens say that a coup d’état would be justified in conditions of high crime and high corruption.

Overall, the seemingly low level of perceived corruption relative to other nations in the region is promising.  Although the true level of corruption is extremely important to the success of a democratic system, the public’s perception of corruption is also important.  The more corrupt the public views the government, the less trust people have for the government, which eventually destabilizes democracy.  The public’s optimistic attitude towards the level of corruption implies a certain level of trust in the government’s democratic system.

Corruption, El Salvador Government

Former Minister of Health Arrested on Corruption Charges in El Salvador

On Tuesday, April 5, the Salvadoran National Civil Police (PNC) arrested ex-Minister of Health José Guillermo Maza Brizuela and seven others on charges of corruption. Ex-Minister Maza was the Minister of Health under President Tony Saca, who left office on June 1, 2009 when the current President Mauricio Funes took office promising to root out corruption within the government agencies.

El Faro reports that the corruption charges stem from efforts to rebuild seven hospitals damaged in the 2001 earthquakes. In 2003 the World Bank approved a $169.4 million loan package to rebuild the hospitals, and CPK, a large Salvadoran contractor, won a contract with the Ministry of Health. Though the project was to be finished by 2006, only two hospitals are complete and the project is $73.4 million over-budget.

The charges filed against ex-Minister Maza include fraud and falsifying documents involving several aspects of the CPK contract. According to El Salvador, the type of contract between the Ministry and CPK prohibited altering the value of the contract or the deadlines for completing projects. On several occasions, however, ex-Minister Maza approved an increase in the amount of the contract, increasing the amount for rebuilding the Santa Theresa Hospital in Zacatecoluca, La Paz by $1.8 million.

Charges also claim that ex-Minister Maza approved payment for work that was never completed. Though CPK had only completed 47% of the work on the Santa Theresa Hospital, Maza approved payment for 70% of the value of the contract – a loss of almost $3.3 million.

Another charge stems from the purchase of $1.1 million in medical equipment for the Santa Theresa Hospital that was paid for but never received. CPK claimed that they had purchased the equipment and that it was in their facilities. Though the contract stated that they would receive payment when the medical equipment was installed, the Ministry approved payment because CPK claimed it was in their possession.

Among the others arrested with ex-Minister Maza is César Rolando García Herrara, an attorney who negotiated the contract between the Ministry of Health and CPK. Mr. García was the sub-director of the PNC under President Calderon Sol (1994-1999). He is accused of falsifying documents and fraud. The other six detained are Arturo Ernesto López Mejía, René Arturo Portillo Montano, José Mauricio Serrano Martínez, José Alexander Ramírez Jiménez, Herbert Leonel Perdomo Ulloa, Guillermo Rafael Alfaro García, all of whom are accused of corruption-related charges.

Ex-Minister Maza has faced allegations of corruption in the past. While he was Minister of Health, the two CT scan machines that were owned by the public health system were broken, and instead of having them repaired, hospitals sent patients to Maza’s private clinics. The Minister admitted that there was a conflict of interest, but insisted that he gave patients from the public system a discount, and he was not charged with any wrong doing.

These arrests were made as Attorney General Romeo Barahona has been coming under fire for his office’s inability to take on organized crime and prosecute politically sensitive cases. In recent weeks, President Funes has indicated that his administration is taking the steps necessary to form an international investigative body that will investigate organized crime and take on cases that the Attorney General’s office has been unable to prosecute. El Faro also reports that Barahona is currently seeking financial support from the U.S. Embassy to support their efforts in taking on organized crime.

If the ex-minister and executives from CPK are guilty of corruption in building hospitals it will have meant that tens of thousands of people in Zacatecoluca and other cities around EL Salvador have gone without adequate health care. Arresting ex-Minister Maza and the others was a good first step, but the real challenge lies ahead in successfully prosecuting them.

Corruption, El Salvador Government, Organized Crime, transparency

Update on Inspector General of the PNC, Zaira Navas

Since last week when we posted an article about the Legislative Assembly’s plans to form of a Special Commission to investigate the Investigator General of the National Civil Police (PNC) Zaira Navas, several top ranking officials, including Salvadoran President Mauricio Funes have spoken out on her behalf. Members of the Legislative Assembly, including Diputado José Antonio Almendáriz, accuse Navas of improperly investigating Police Commissioner Douglas Omar Garcia Funes, former Commissioner Godofredo Miranda, ex-Director of Police Ricardo Menesses, and many others for corruption and ties to organized crime and drug trafficking.

During the legislative session last Thursday, the 45 votes in favor of the Special Commission were enough to move ahead with the investigation of the Inspector General. While no left-wing FMLN diputados voted in favor of the special commission, 45 right-wing ARENA, PCN, PDC, and Gana legislators supported it.

Yesterday, President Funes expressed his support for Navas, confirming that she has only followed the guidelines he gave her in conducting a thorough “cleaning’ of the PNC. Simialrly, the Minister of Justice and Security, Manuel Melgar, has claimed that the commission may be unconstitutional and should not be permitted to go forward. Even Carlos Ascencio, the Director of the PNC, defended Navas, saying that she was simply following the lines of investigations that President Funes had ordered. The Office of the Ombudsman for Human Rights has also stated “we must respect the work of the Inspector General.”

Government Agencies in El Salvador have operated in the shadows for a little too long.  A little sunshine every now and then is good for everyone, unless they have something to hide.

Corruption, El Salvador Government

A Message to El Salvador’s Diputados: When Death Threats Fail; Form a Special Commission.

El Faro photograph of Zaira Navas

This week, Diputado José Antonio Almendáriz from the conservative National Conciliation Party (PCN) proposed that the Legislative Assembly Security Commission form a special commission to investigate Zaira Navas, Inspector General of the National Civil Police (PNC).  Diputado Almendáriz is challenging Navas’s very clear mandate to investigate Police Commissioners accused of corruption or criminal activities.

Since 2009, Inspector General Navas has made news for her office’s investigations of PNC Commissioner Douglas Omar García Funes, former Commisioner Godofredo Miranda, ex-Director General of Police Ricardo Menesses, among others. Commissioner García Funes is the chief of the Counter Transnational Gang Center and is suspected of drug trafficking. According to an informant for the U.S. Drug Enforcement Agency, the Commissioner used his officers to provide security for shipments of drugs as they pass through El Salvador, and ensured that other police agencies would not interfere. Godofredo Miranda was accused, among other things, of botching an investigation into drug traffickers arrested under his command. Ricardo Menesses was forced to resign his post last year due to allegations that he has ties to high-ranking gang leaders and organized criminals.

Late last year, Inspector General Navas began receiving death threats for her investigations. The threats were so serious that U.S. Senator Patrick Leahy, who has had an interest in El Salvador for many years, wrote a letter to President Funes asking that he provide her with adequate protection so that she is able to complete her investigations. The threats did not deter Navas and her office continued its work.

Diputado Almendáriz justifies the need for a special commission claiming that 20 of the police officials that she is investigating have been cleared of the charges against them, and that she is targeting them because they are all former members of the Salvadoran Armed Forces. Citing the case of Godofredo Miranda, he said, “this is the case of Commissioner Miranda, which has already been dismissed, and the Police Inspector is still looking to gather evidence. She has been investigating for a year without results.”

It is curious that Diputado Almendáriz is worried about the Inspector General’s office investigations into allegations of drug trafficking and organized crime. He is the President of the Legislative Assembly’s Security Commission (the full title of which is the Commission on Public Security and Combating Drug Activity).  His mandate complements that of Navas’s.  He also represents Sonsonate in the Legislative Assembly, which has one of the highest crime rates and is allegedly a main transit points for drug traffickers entering El Salvador on their way to Guatemala and up to the United States. One would assume it is in his interest to investigate high-ranking police officers accused of trafficking drugs.

The Diputado, however, does have a history of cover-ups. The El Salvador Truth Commission, which among other things investigated war crimes during the civil war, found that then Lieutenant Colonel José Antonio Almendáriz was in command of the troops who executed Begoña Garcia Arandigoven, a 24-yeard old Spanish doctor, and that he “covered up the crime with the collaboration of the National Police Third Command Santa Ana Unit.

Threats did not seem to deter Investigator General Navas last year. We hope that the Special Commission doesn’t get in her way either.

Corruption, El Salvador Government

Transparency Initiative at the Ministry of Public Works

Elfaro.net recently reported that the Salvadoran Ministry of Public Works (MOP) is preparing to adopt mechanisms that will increase their transparency. The MOP will launch the program on August 31, making all information about public works and related contracts open to the public.  The program will also create a watchdog group to oversee implementation of the program and monitor the MOP projects and contracts. President Funes, the Minister of Public Works, the Salvadoran Chamber of the Construction Industry (Casalco), the National Development Foundation, and the Salvadoran Chapter of Transparency International all signed onto the transparency agreement.

Raúl Torres of Transparency International identified three criteria that must be met in order to achieve transparency: 1) open access to information from MOP and Casalco; 2) explanations of accounts from the Ministry and Casalco; and 3) active citizenry that is aware of how their tax money is being spent.  Mr. Torres continued that the watchdog group will function on at least two levels.  One special committee will have the authority to watch over all activities, while another committee that includes churches, academics, journalists, and internationals will produce related reports. 

Mr. Torres also stressed that as one of the least transparent part of the government, the MOP has facilitated much corruption in the past.  When President Funes nominated Gerson Martínez to serve as Minister of Public Works, they agreed that one of the main points of business was to address the issue of corruption. When they took office, the Minister reached out to Transparency International to work on the project.  They have worked on similar initiatives in Guatemala, Mexico, Colombia, and Argentina, with good results.