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

President Funes and FMLN Talk Coup

Since the September shutdown of the transit system in El Salvador, rumors have circulated that the threats allegedly made by gang members were in reality an attempt by right-wing extremists to destabilize the government and even overthrow the Funes Administration. These rumors came a little over a year after a coup in Honduras ousted a democratically elected President, and as the Ortega Administration in Nicaragua seeks to consolidate its power. Following the September 30th attempted coup in Ecuador in which a small group of police and soldiers tried to overthrow the leftist government of President Rafael Correa, OAS President José Miguel Insulza said “we ought to remain on alert [of coups], not just in Ecuador, but throughout the Western Hemisphere.”

Salvadoran President Mauricio Funes speaking to the COPPPAL in San Salvador on Monday (photo ticotimes.net)

In the past week, President Funes and the FMLN party he represents have addressed the possibility of a coup in El Salvador – in one breath dismissing it altogether, and in another taking it head on. In a speech Friday night celebrating internationals that fought alongside the FMLN during the 1980s, Medardo González (General Coordinator of the FMLN) addressed OAS President Insulza’s concerns by stating forcefully, “Here in El Salvador, we are on alert and will not permit any coup against the State.”

Diario CoLatino reported yesterday that President Funes is downplaying the threat of a coup in El Salvador. They quote Funes, “I do not have any information that makes me think [a coup] is possible, especially against a government like mine. In 16 months we have carried out our public duty, abided by the constitution, and been a government that has increased national unity.” The article also emphasizes that the President has the full support of the armed forces, and the international community, including the President of the United States.

President Funes also addressed the coup issue during a speech to the Permanent Conference of Latin American and Caribbean Political Parties. He called for the Organization of American States to create an early response system to prevent future coups in Latin America and establish criminal sanctions for those who break democratic order. He calls for OAS intervention not only before or during a military coup, but in “any other situation that could translate into ungovernability and destabilization.”

These carefully worded statements accomplish a few things. At the same time, the President and FMLN are assuring the Salvadoran people that the government is stable and that a coup is unlikely, while putting everyone on notice that they would confront a coup attempt head on and defeat it. President Funes is also using the recent instability in Ecuador and last year’s coup in Honduras to call on the international community to create better mechanisms to prevent future coups – mechanisms that would surely benefit his administration if extremists even tried to destabilize his government.