The People Spoke and 743 Was Repealed!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.

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 8^th 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 30^th 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.

 

Magistrate Sydney Blanco Event in Hyattsville MD – Tonight

For those of you in the DC area, Salvadoran Magistrate Sydney Blanco will be speaking at an event hosted by the Salvadoran Lawyer’s Association and the Salvadoran-American Initiative for Democracy in El Salvador at St. Mathew’s Episcopal Church in Hyattesville, MD tonight from 5:00 – 8:00.

Magistrate Blanco has been a judge in El Salvador for over 15 years, and currently serves on the country’s highest Constitutional Court. He and three other magistrates are currently embroiled in a constitutional crisis in El Salvador, which many believe to be the worst institutional conflict in El Salvador in a generation. For background information you can read our previous blog posts here, here, here, and here.

In a press conference earlier in the week, Magistrate Blanco said that he came to the DC area to visit family and friends, and to get away from the stress he has endured since the crisis began over a month ago.  He makes it clear that while he is not hear  to lobby around the issue, he is happy to speak to those who are interested.

No matter your position on Decree 743, we recommend going to hear Magistrate Blanco tonight from 5-8.

Here is the invitation we received:

Los invito a participar en un foro muy importante para informar a nuestra comunidad Salvadoreña-American del area de Maryland, Virginia, y DC.

Tenemos la oportunidad de escuchar la ponencia que dará el Magistrado Sidney Blanco en un foro comunitario sobre la actual crisis de gobernabilidad que El Salvador está enfrentando. Desde la firma de los Acuerdo de Paz, hemos venido avanzando y fortaleciendo los procesos democráticos. Pero ahora..¿qué significa el Decreto 743 para el futuro de la democracia Salvadoreña, la transparencia institucional, y la independencia jurídica?

Who/Quien: Magistrado Sidney Blanco de la Sala de lo Constitucional de la Corte Suprema de Justicia
When/Cuando: Viernes 15 de Julio de 5 a 8 p.m.
Where/Donde: St. Matthew’s Episcopal Church, 5901 36th Ave, Hyattsville MD 20782

Sponsors/Invitan:
Salvadoran Lawyers Association (SLA) and
Salvadoran-American Initiative for Democracy in El Salvador

Contacto: Daniel Joya 301-468-9299 danjoyas@yahoo.com <about:/mc/compose?to=danjoyas@yahoo.com>

Dear Friends,
I want to invite you to participate in an important event for our Salvadoran American community in the MD-DC-VA area.
You will have the opportunity to hear a presentation by Salvadoran Supreme Court Judge, Magistrado Sidney Blanco, at a community forum on the current governance and constitutional crisis that El Salvador is now facing. What does passage of legislative Decree 743 mean for the future of El Salvador’s democratic processes, transparency in governance, and an independent judiciary?

Hope to see you there! Espero verlos a todos!
Saludos,
Ana Sol Gutiérrez

Funes Quickly Losing Support over Decree 743 Discontent

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.

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.

Salvadorans Protest the Government’s Actions Against Constitutional Court

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).

Even Supreme Court Magistrate Mirna Perla attended the protest

A view of the diverse crowd that showed up in protest of Decree 743

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.