El Salvador Government, Politics

Defense Minister David Munguía Payés

Yesterday afternoon, President Funes appointed Minister of National Defense David Munguía Payés as Minister of Justice and Security. It is the first time since El Salvador ended twelve years of civil war that a military official has been in charge of El Salvador’s domestic security. Minister Munguía Payés is replacing former Minister Manuel Melgar who resigned just over two weeks ago.

As Minister of Defense, Munguía Payés oversaw the deployment of troops in San Salvador neighborhoods controlled by El Salvador’s notorious gangs. He made the news earlier in 2011 when he warned that Mexican drug cartels were building a presence in the region and targeting Central American police and military bases as a source for weapons.

When President Funes made the announcement yesterday, he said he “asked for concrete results in the fight against crime.” In his first statement as the new Minister, Munguía Payes said that he “is convinced that has not come to work miracles, but he is committed to taking concrete steps.” He also said that he was committed to respecting the Constitution and human rights, and managing public security as a civilian as mandated by the Peace Accords.

According to ElFaro.net, during the ceremony to swear in the new Minister of Security, President Funes made a tacit admission that the government had not made significant advances in combating murders in the past 2 ½ years.

The FMLN objected to appointing Minister Munguía Payés because of his military background. They argue that his appointment is a step backwards in El Salvador’s democracy, and a violation of the Peace Accords. Former leftist guerillas who were integrated into the National Civil Police also expressed concern that Munguía Payés’ appointment would result be detrimental, but President Funes assured them that there would be no structural changes within the police force.

According to an article on netorivas.net, the FMLN has had a good relationship with Munguía Payés in the past. The former colonel had a falling out of sorts with ARENA politicians when Presidents Calderon Sol and Francisco Flores refused to promote him to General. In 2003, Sanchez Ceren, who was then the head of the FMLN party, announced that Munguia Payes was joining the FMLN, and would serve as an advisor on national security issues. One of the reasons for bringing him on was to bring other old soldiers into the FMLN fold. If the FMLN had won the 2004 Presidential elections, Munguía Payés would have likely been appointed Minister of Defense. His appointment is another reminder that the Funes Administration and the FMLN party are not working as closely together as they might be.

Partnership for Growth

Partnership for Growth: Part 1

On November 3rd, government representatives from the U.S. and El Salvador signed the Partnership for Growth Agreement with the goal of promoting economic development in El Salvador. The five-year program seeks to overcome two constraints to economic growth in El Salvador – crime and insecurity, and low productivity in the tradables sector.

Partnership for Growth “is a signature effort of President Barak Obama’s development policy, focused on economic growth as the core priority for United States development efforts.” El Salvador is, so far, one of only four countries to sign a Partnership for Growth agreement. The other countries are Philippines, Ghana, and Tanzania.

Over the next few weeks, Voices on the Border will examine what the Agreement says, what the Agreement does not discuss, and what the Agreement means for communities in El Salvador.

A fact sheet released by the U.S. Department of State lists five general goals for the Partnership Agreement:

–       Reduce the effects of the constraints to economic growth (crime and insecurity, and low productivity in tradables) over the next 5 years;

–       Provide conditions so that other countries can participate in the Partnership;

–       Demonstrate to the people of El Salvador the commitment to addressing the constraints to economic growth;

–       Increase the partnership between the government and private sector; and

–       Reinforce a bilateral relationship of mutual respect and action.

A team of economists from El Salvador and the United States spent the first few months of 2011 generating an economic report that defines the main constraints to economic growth in El Salvador. A link to the report can be found on the U.S. Embassy in San Salvador website, along with a statement of Principals and the Joint Country Action Plan. According to the report, the “shadow price” (potential GDP missed due to the constraints) of crime and insecurity and low productivity in the tradables sector is substantial.

In addition to providing a detailed review of the country’s economy, the report states,

“ the prevalence of crime represents a weakening of property rights because it demonstrates government failures to protect property from unlawful seizure and reduces the ability of economic actors to reliably recover returns on their investments.”

Citing statistics from the World Bank, the report says that small businesses in El Salvador lose an average of over 7% of their sales to crime. Medium size businesses report a 5% loss to crime. Businesses also have to pay for security, costing small and medium businesses an average of 3% of their total sales. Combined, the loss of sales and cost of security are 10% of sales for small businesses and 8% for medium size businesses.

The El Salvador Constraints Analysis (CA) determined that the effect of crime on El Salvador is between 4.8% and 10.8% of the country’s GDP, depending on whether health costs are included. Both figures are higher than the Central American average, and double the figure in Costa Rica, the only country in the region that does not have an epidemic level of crime. The report also states, “in the Global Competitive Report, El Salvador ranks last out of 139 countries under the Organized Crime Indicator, and next-to-last in Business Costs of Crime and Violence.” In coming blog posts, we will consider the Joint Country Action Plan and the activities the governments are planning to minimize insecurity as a constraint to economic development.

The CA also determined that low productivity in tradables is another constraint, suggesting that Salvadoran goods and services are less competitive internationally than those from countries such as Nicaragua, Honduras, and Costa Rica. As a result, El Salvador exports less than it could, and imports products that could potentially be made domestically. The CA calculates that the effect of low productivity in the tradables sector is “as much as 8 percent” of GDP.

The Partnership for Growth Agreement was just signed a couple weeks ago, and people and economists are still trying to fully understand its implications. Some have already begun holding it up as the most important development for El Salvador’s economy in recent history. Others are calling it the worst thing that could happen to El Salvador. In the coming weeks we will try to present a balanced analysis of the Agreement and how it fits into the larger picture of sustainable development in El Salvador.

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.

 

Mauricio Funes, Organized Crime, violence

Los Zetas in El Salvador: Is There a New Gang in Town?

Evidence is mounting that the Mexican paramilitary group Los Zetas has begun to infiltrate El Salvador in search of weapons.  The recent seizure of 1,812 grenades is now suspected to have been destined for a group of Zetas in Guatemala.  News sources have linked the stolen grenades have implicated a recently vanished army major with ties to the Zetas.

 

Los Zetas is a Mexican cartel that includes many former members of the Mexican Special Forces.  The gang is sophisticatedly organized and brutal, and its members are intelligent and very well trained. It is estimated that about 35,000 people have died in Mexico since Mexico’s president, Felipe Calderón, started cracking down on drug trafficking and organized crime in Mexico in 2006.  Calderón’s mandated closing and patrolling of spaces and territories in Mexico that were known to be dominated and controlled by drug cartels, namely Los Zeta, has been effective, and has spurred parts of the gang to migrate to locations where the can more easily operate.

 

Funes has explicitly stated that there is a group of Los Zetas that is exploring El Salvador, trying to form alliances or open relations with local gangs and drug traffickers.  He doesn’t necessarily believe that gang members will settle in El Salvador, as they are currently doing in Guatemala, but he worries that they are arriving with the intent of acquiring assault weapons.  Funes reasons that there are many weapons in the hands of Salvadoran civilians that have not be registered or legalized as a consequence of 12 years of civil war within the country.  This makes weapons transfers easy and virtually undetectable, providing a prime opportunity for the Zetas to acquire arms in El Salvador.

 

However, others have raised the specter of a more permanent move by Los Zetas into El Salvador.  In addition to its abundance of weapons, El Salvador’s use of the US dollar may make it an easy place to launder drug money.  Recent seizures of large amounts of cash and the discovery of a purported Zeta training camp in the vicinity of Guazapa have added to fears that the drug war may have found a new battleground.

 

Mauricio Funes, Politics

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.

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.

El Salvador Government, Mauricio Funes, Politics

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.

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.

Mauricio Funes, Politics, violence

Funes Proposes Mandatory Military Service for “At-Risk Youth”

In a speech to the legislative assembly on June 1st, President Mauricio Funes provided commentary on his second year in office and proposed goals for improvement of the country’s state of security.  Notable among these proposals is Funes’ plan to create a system of obligatory military service for youth at risk of being recruited, or targeted by gangs.  If enacted, those deemed to be “at risk”, a denomination given at the discretion of the National Civil Police, would be required to complete a total of 2 years of military training without weapons (6 months), civil protection training,  rehabilitation, and vocational training aimed to shape them into productive citizens.  Funes believes that removing an estimated 5,000 at-risk members of society off of the streets and putting them through this program will resolve many of the country’s security issues caused by the prevalence and entrenchment of violent gangs in Salvadoran society.

 

While Funes’ introduction of the plan was only general, with details and logistics to be decided upon at a later date, some of the infrastructure necessary to implement it is already in place: the Salvadoran Constitution stipulates obligatory military service for citizens age 18-30, although this provision (designated as a “dead letter” rule) is not implemented   The caveat is that recruiting minors is of the essence to the success of the plan; FBI statistics show that gangs often target middle and high school students for recruitment, who range from approximately 12-18 years of age.  The program would theoretically need to work with at-risk youth before they join the gangs.  These statistics and the need to recruit minors may necessitate some legal revisions.  However, “youth” in El Salvador includes both minors and young adults, so it is unclear as to whether he plans on targeting minors, or if the participants would be over 18.

 

Funes’ plan, while controversial, does have proponents. Aída Santos, the former director of the National Public Security Council, in her interview with El Faro applauded Funes’ plan, citing that many adolescent members of gangs often feel like prisoners who cannot escape the constant threats and harassment they experience as gang members.  She believes that military training will provide them with this escape, as well as the sense of community and support they may have been seeking to find through gang membership.

 

Those opposed to Funes’ plan for obligatory military service for at risk youth argue that the program will only serve to exacerbate gang violence, as when adolescents are recruited into the program, it is highly likely they will already be associated with a gang.  This would effectively mean that the Salvadoran government would be training gang members and possibly providing them with resources and connections within the government.  There are already reports of the police and the military being corrupt and having connections with organized crime and gang activity; this could have the potential to intensify that problem.

 

Others opposed to the plan make claims that it will violate human rights.   Henry Fino of the Human Rights Institute at the Central American University (IDHUCA), also in an El Faro interview alleged that Funes’ proposed use of the army is unconstitutional, as the army is only meant to intervene in matters of public security in extreme cases.  He believes that the prevention of crime is not an extreme circumstance, nor does he even consider it to be a matter of public security.

 

In addition, as Funes’ plan to impose obligatory military service on youth continues to develop and does, in fact, include minors, the President must be careful not to violate his treaty obligations under the Convention of the Rights of the Child (CRC).   The CRC, which El Salvador signed and later ratified in July of 1990, provides rigid protection for the rights of minors, of the sort that Funes seeks to recruit.  El Salvador also ratified an optional protocol to the CRC on the involvement of children in armed conflicts (A/RES/54/263) proposed in May of 2000 and signed and ratified by El Salvador by 2002.  Article 2 of the protocol is explicit when it states, “States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.”  The protocol in its third article also stipulates that any involvement of minors within the army must be “genuinely voluntary [and]…carried out with the informed consent of the person’s parents or legal guardians.”  If Funes continues to pursue the development of such plan, he must be aware of his obligations to the international community and the scrutiny he will come under if he violates his treaty obligations.

 

 

 

El Salvador Government, Mauricio Funes, Politics, U.S. Relations

President Obama Re-nominates Ambassador Aponte to El Salvador

The White House announced yesterday that President Obama has again nominated Mari Carmen Aponte to be the U.S. Ambassador to El Salvador. President Obama first nominated her to the post in December of 2009, but Senate Republicans led by Jim DeMint held her nomination in Committee. Sen. DeMint (R-SC) voiced concerns that Ms. Aponte had a romantic relationship in the 1990s with Roberto Tamayo, a Cuban who has alleged ties to the FBI and Fidel Castro.

President Obama used a recess appointment in August 2010 to by-pass the Senate and Ambassador Aponte was sworn in on September 22, 2010. As a recess appointment, her term will end in January 2012, giving the administration just under ten months to get her nomination approved by the Senate.

Senator DeMint and other Republicans have asked to see to her FBI files to better understand her relationship with Mr. Tamayo. In 1998, President Clinton nominated Ms. Aponte to serve as U.S. Ambassador to the Dominican Republic, but she withdrew her nomination when Senator Jessie Helms threatened to ask probing questions about the relationship.

The Salvadoran Embassy website posted the following biography for the Ambassador:

Before assuming the position of U.S. Ambassador to El Salvador, Mari Carmen Aponte worked as an attorney and consultant with Aponte Consulting, and served on the Board of Directors of Oriental Financial Group.  From 2001-2004, Ms. Aponte was the Executive Director of the Puerto Rican Federal Affairs Administration.

Prior to that, she practiced law in Washington D.C. for nearly twenty years.  Ms. Aponte has served as a member of the Board of Directors of the National Council of La Raza, the Puerto Rican Legal Defense and Education Fund, and the University of the District of Columbia.  She was a member of the Board of Rosemont College, and served as president of the Hispanic National Bar Association; the Hispanic Bar Association of the District of Columbia; and as a member of the District of Columbia Judicial Nominations Commission.  In 1979, as a White House Fellow, Ms. Aponte was Special Assistant to United States Housing and Urban Development Secretary Moon Landrieu.  Ms. Aponte has a B.A. in Political Science from Rosemont College, an M.A. in Theatre from Villanova University, and a J.D. from Temple University.

President Obama will be visiting El Salvador March 22-23 during a three-stop tour of Latin America. Last week, Salvadoran President Mauricio Funes said that they will be discussing the fight against poverty, which he says provides fertile ground for common crime and organized crime to flourish.