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Hyper-Presidentialism Undermining the judicial system in El Salvador

By Leonor Arteaga Rubio*

On Friday, September 3, the Constitutional Chamber of El Salvador’s Supreme Court issued a ruling allowing presidents to run for reelection for a second term while still in office. This decision, which permits current President Nayib Bukele to seek reelection in 2024, defies El Salvador’s constitution, which prohibits presidents from holding office for two consecutive terms. It is but the latest in a series of moves against democracy and rule of law in El Salvador, which have raised growing international concern regarding the country’s rapid deterioration towards dictatorship.

Since assuming the presidency in June 2019, and especially since the February 2021 legislative elections, Bukele and the National Assembly – dominated by his political party — have moved to weaken checks and balances and co-opt El Salvador’s judiciary, consolidating power in the executive and undermining the rule of law. The decision to allow consecutive presidential reelection to a second term is a clear result of the “technical coup” that occurred on May 1, when the National Assembly unlawfully replaced all five magistrates of the Constitutional Chamber of the Supreme Court as well as the country’s Attorney General. The newly formed Constitutional Chamber’s latest ruling not only violates Art. 152 of the constitution, which prohibits consecutive reelection for presidents, but also its own previous ruling from 2014. In that unconstitutionality decision, the Chamber prohibited immediate presidential reelection and established a mandatory 10-year waiting period to run for reelection as president. Additionally, the Salvadoran constitution states that articles regarding the presidential term cannot be amended.

Since Bukele’s Nuevas Ideas party took control of Congress on May 1, efforts to end judicial independence in El Salvador have rapidly increased. On August 31, in an attempt to purge the country’s judiciary, Nuevas Ideas legislators approved reforms to the Judicial Career Law and the Organic Law of the Attorney General’s Office, effectively dismissing prosecutors and judges who are older than 60 or have served for more than 30 years. This purge may ultimately result in the dismissal of judges handling paradigmatic cases, including Judge Jorge Guzmán. He has presided over the ongoing El Mozote massacre case for years. Guzmán’s leadership in the El Mozote case is crucial, and his dismissal from the judiciary would be a blow for accountability in human rights cases from El Salvador’s civil war. “International pressure and pushback from other Salvadoran judges in response to Guzman’s potential dismissal have led the Supreme Court to announce they will make an exception in his case, a lone glimmer of hope among the growing and deeply troubling attacks on judicial independence”.

However, threats to judicial independence are so grave that Judge Guzmán has stated that he will likely not continue in his position unless all other judges are allowed to remain as well, to protest the bad faith nature of the government’s actions in dismissing a third of the country’s judiciary.

Furthermore, the Legislative Assembly move to reform El Salvador’s Judicial Career Law, directly violates Article 133(3) of the Salvadoran Constitution, which exclusively empowers the Supreme Court of Justice to propose laws related to organizing the judicial branch, the work of notaries and lawyers, and the jurisdiction and competence of the courts. Legislators argue that their intention is to purge a corrupt judicial system. There is a need to overhaul El Salvador’s judiciary, and several national and international actors have demanded such reforms for years; unfortunately, institutional reform in the country has been uneven and at times unsuccessful. Transitioning from an oppressive authoritarian regime and armed conflict to a democracy, as El Salvador has done for the past 30 years, undoubtedly requires significant reforms to institutions. However, corruption cannot be fought with more corruption, and legislators who have repeatedly violated the Constitution cannot act as guardians of the rule of law. Much remains to be done to make institutions more representative, transparent, and participatory – not undermine them.

In a joint statement, the Inter-American Commission on Human Rights (IACHR) and the UN Special Rapporteur on the Independence of Judges and Lawyers rejected the recent reforms and called on the Salvadoran government to respect judicial independence and the independence of the Attorney General’s Office. DPLF has pointed out that these new norms grant broad discretionary power to the Supreme Court or Attorney General to decide to transfer judges and prosecutors to other territorial or functional units for “justified reasons of convenience of service” or the “complexity or specialty of the cases.” The IACHR noted that, when based on discretionary reasons, the removal of a judge or prosecutors from cases can be interpreted as “in retaliation for his or [her] decisions,” and “[t]he threat of transfer can become a disincentive to independent performance of [their] functions.” Additionally, the UN Special Rapporteur on the independence of judges and lawyers has identified that these measures can be used as “disguised sanctions” to pressure and harass independent judges and prosecutors.

Based on these recent rulings, President Bukele now controls the Legislative Assembly, where laws are approved; he controls the Attorney General’s Office and the police, and thus the ability to carry out arrests and prosecutions; he controls the Supreme Court of Justice; and now, with the reforms to the Law of Judicial Careers, he is aiming to suppress the lower courts. The president’s ability to act unilaterally in areas that are not within his/her purview is a symptom of hyper-presidentialism, which is the case in El Salvador. Hyper-presidentialism occurs when there are not sufficient limits on presidential power, or he/she is able to subvert the limits in place, formally or informally.

Ultimately, with its most recent decision, the Executive-controlled Supreme Court has paved the way for consecutive presidential reelection, which in turn has created an opportunity for indefinite reelection, prohibited under the American Convention on Human Rights as reaffirmed by a recent Advisory Opinion to the IACHR. This kind of action, which we have seen before in our region’s history, is never for the people but always for the powerful.

* Leonor Arteaga Rubio is the Program Director for Impunity and Grave Human Rights Violations at the Due Process of Law Foundation (DPLF).

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