El Salvador’s President Nayib Bukele (AP Photo/Salvador Meléndez, File)
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El Salvador, in Brief: A proposal to reform the Salvadoran constitution would loosen current limits on judicial power and extend the presidential term. Lawyers question the legitimacy of the reform and the implications for Nayib Bukele’s tightening grip on power.
Bukele’s Moves
On Wednesday, August 11, after a year and a half of speculation as to whether President Bukele would leverage his enormous popularity to significantly alter El Salvador’s constitution, a commission to review the current constitution published recommendations for more than 200 changes.
The initiative, overseen by Vice President Félix Ulloa, has been rebuffed by Salvadoran civil society organizations who fear President Nayib Bukele is further eroding democratic institutions and checks on increasingly consolidated power. Bukele and his allies have argued for months that their overwhelming electoral victories give them a popular mandate to make the changes they wish.
Meanwhile, economic anxiety is running high in El Salvador: the national debt is at a crescendo, negotiations with the International Monetary Fund for a much-needed easing of the debt drag on, and, as a result, El Salvador’s international credit rating has suffered.
This week, after Ulloa announced the proposal, the price of El Salvador’s bonds dropped to a nine-month low amid international concerns of institutional instability and the rapid introduction of Bitcoin as national currency.
Since Bukele’s Nuevas Ideas party took two-thirds control of the Legislative Assembly this May, it has cemented its influence on the Supreme Court and in the top prosecutor’s office, and has announced it will double the size of the Armed Forces. The president is now moving to make his mark on Salvadoran democracy’s foundational document.
The country’s diplomatic corps will broach the reforms on Friday, August 13, followed by members of civil society and academics, yet Ulloa says most substantial changes have already been made. Bukele can then make final touches before sending the proposal to the Assembly on September 15, the bicentennial anniversary of Central American independence.
Key Reforms
The constitutional reforms would extend the presidential term from five years to six—a change which the administration announced in January it would seek. Presidents could also seek reelection after only one term out of office, instead of two.
Ulloa has defended the reforms, saying they will “harmonize” the political system by synchronizing three-year legislative periods with the presidential period, and that other measures, such as introducing referenda to remove broadly unpopular politicians from office, will promote democratic participation. Bukele has yet to publicly opine.
The rewrite would also remove key language from constitutional articles 85 and 86 separating legislative, executive, and judicial powers and eliminate the prohibition in article 85 against a single government party. The term for the attorney general — selected by the Assembly, today controlled by Bukele’s party — would also increase from three years to six.
One of the largest points of contention is a change to the future process of altering the constitution: Instead of requiring the ratification from two separate legislatures, future reforms would only require the approval of the sitting Assembly, followed by a popular referendum. The current reforms will still need approval from the 2024 Assembly.
The new constitution would also replace the electoral oversight body known as the Supreme Electoral Council (TSE) with a National Electoral Institute, enabling the body to audit public and private campaign finance.
The proposal also lays out significant changes to the Supreme Court’s most powerful chamber, including converting the current Constitutional Chamber within the Supreme Court to a Constitutional Tribunal, increasing the number of judges from five to seven, and altering the process of removing judges. The changes would “separate the administrative labors from the judicial ones within the judicial branch,” Ulloa said.
“Creating a Constitutional Tribunal doesn’t do a thing if its independence isn’t respected,” a leading national lawyer recently told La Prensa Gráfica. That independence recently came under attack when, this May, legislators from Bukele’s party illegally removed five justices on their first day in office. Former constitutional judge Rodolfo González said the changes are meant to “deceive and distort” and do not improve the justice system.
The changes also extend rights to some marginalized Salvadorans by banning discrimination based on ethnicity, sexual orientation, or gender expression and granting the right to vote to citizens residing abroad.
Constitutional Controversies
Throughout Central America, proposed constitutional reforms have provided fertile soil for major political crises. In 2008, Honduran President Manuel Zelaya pitched a referendum to potentially amend the constitution—a move later used against him as partial justification for the 2009 military coup that swept him from office.
The country’s Supreme Court then issued a controversial ruling in 2015 permitting reelection on the grounds that banning reelection is a violation of Hondurans’ rights, thus paving the way for the 2017 reelection of President Juan Orlando Hernández.
In Nicaragua, a 2014 constitutional reform got rid of limits on the number of presidential terms, paving the way for the continued reelection of President Daniel Ortega, who will seek his fourth consecutive election —now, after arresting his potential contenders, unopposed— this November.
These arguments were recently discredited by the Inter-American Court of Human Rights, which has stated that reelection is not a right protected by the American Convention on Human Rights, according to an unpublished court document obtained by El Deber.
Recently, in other Latin American countries, including Chile and Peru, discontent with the political status quo has fueled constitutional reforms or referendums. While Bukele’s party was democratically and overwhelmingly installed in the legislature just four months ago, the president of the Anti-Corruption Legal Advisory Center (ALAC), Wilson Sandoval, says these processes and that of El Salvador are apples and oranges.
In Chile, a referendum for constitutional reforms came after a mass protest movement demanded it. Sandoval wrote on Twitter: “That five lawyers get together to have coffee to extend Bukele’s tenure doesn’t represent us.”
La legitimidad de las reformas constitucionales es nula al ver ejemplos como el de Chile, en donde se ha dado un proceso desde las calles exigiendo cambios, participando en el proceso. Que 5 abogados se reúnan a tomar café para alargar el período a Bukele no nos representa.
— Wilson Sandoval (@wosm87) July 25, 2021
Other lawyers have more fundamental questions about the legitimacy of the constitutional reform. “The Executive should not be able to propose the elimination of its own fundamental limits nor how it would like to exercise power,” lawyer Jose Marinero Cortés wrote for El Faro in January.
According to current law, any constitutional reforms would require first approval by the current legislature and second approval by the 2024 legislature. If approved, these reforms would allow for quick changes with decades-long repercussions, but would also assuage concerns that Bukele was pushing reform to secure his immediate reelection.
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