What’s Behind El Salvador’s Reform of the Constitution?

https://www.thedialogue.org/analysis/whats-behind-el-salvadors-reform-of-the-constitution/

 

Salvadoran Vice President Félix Ulloa recently presented a constitutional reform proposal, which includes more than 200 modifications to the country’s current constitution. Among the most notable suggested reforms is the extension of the presidential term from five to six years. To be approved, both the current Legislative Assembly and the next one, which will be elected in 2024, must accept the government’s proposal. What are the main reasons behind the reform’s introduction, and would it benefit the country? How likely is the reform to win approval in 2024, President Nayib Bukele’s last year in office? If passed and enacted, what would this reform mean for Salvadoran government institutions, particularly the country’s electoral and judicial systems?

 

Ricardo Cevallos, partner at Ricardo A. Cevallos y Asociados: “El Salvador’s constitution has been in force since 1983, and there has never been such a large number of amendments proposed—215. The constitution has 274 articles, so the proposal could be considered a rewrite just from looking at the number of modifications to be enacted. The Constitutional Assembly that created the 1983 Constitution had a broad representation of many of the then-political forces in society, which would not happen if the current and future legislatures approve the reforms, as the president’s party controls the legislative branch. The government has not provided any reasons for this proposed change, except that other countries such as Mexico have six-year presidential terms. The practical advantage of having six-year terms would be to align the presidential election with the legislative election, which takes place every three years­—thus saving money. But aside from that, there is no logic to this change. Some of the amendments seem reasonable at face value; others have been discussed previously by different civil and political organizations. The main problem with this set of amendments for many of these organizations is the lack of transparency in the discussions to adopt them, which would be completely open to the public in a Constitutional Assembly. Another issue is that the legislature may want to apply the amendments to Bukele’s administration, as he will still be in office in 2024. This would go against the legal principle of the nonretroactive application of legal norms. If the amendments pass—which they probably will, judging from the president’s popularity—they will undoubtedly mean severe changes to El Salvador’s legal landscape. But as Bukele’s party slogan states, they are here to make history.”

 

Celia Medrano, San Salvador-based journalist specialized in human rights: “It is important to understand the context of constitutional changes in El Salvador. It is difficult to speak of reforming the constitution if more than 200 articles are to be modified. In reality, it is changing the constitution. This seeks to change the rules of the game at a time when the president controls the Legislative Assembly, following an unconstitutional dismissal of the magistrates of the constitutional chamber of the Supreme Court and the attorney general, whose roles have been given to officials who also respond to the interests of the groups that control the presidency. There is talk of recognizing human rights, equal marriage and euthanasia, but we must focus on the core changes that are intended to take place. The prohibition on the existence of armed political groups is to be eliminated, and a single political party would be established. The presidential term would also be extended. These changes to the constitution would violate the constitution itself. Safeguards referred to as constitutional ‘stone articles’ that legislators established would be broken. Anticipating that a political group would want to perpetuate itself in power, lawmakers implemented these articles after decades of suffering at the hands of military dictatorships. It is no coincidence that the constitution is being changed in favor of the interests of the president after ruptures of the basic protections of democratic institutions such as separation of powers. Faced with the establishment of an authoritarian and militaristic regime, nothing in El Salvador today represents any control on arbitrariness and abuse of power. Nor are there any guarantees for a population that, albeit slowly, is becoming increasingly disillusioned and dissatisfied.”

 

Beatrice Rangel, member of the Advisor board and director of AMLA Consulting in Miami Beach: “El Salvador is about the 12th country to choose constitutional reform to solve a political impasse. This, of course, is a strategy to gain time while legitimizing the political views of the circumstantial majority. And as time passes and governments continue to fail to deliver quality public goods to their populations, new constitutions lose legitimacy, and pressures for renewed reform efforts mount. Worse in some cases, such as in Peru, is the attempt to marry presidentialism with a parliamentary government, which has encouraged fragmentation and instability. In extreme rent-seeking nations such Bolivia, Nicaragua and Venezuela, the door opens to authoritarian rulers who seize control of the state forever. As a result, Latin America holds the dubious record of having more constitutions per capita than any other region in the world. In El Salvador, the current reform seems to be headed in the very same direction as other Latin American countries. All of the region’s nations have enshrined regulatory frameworks in a constitutional category. As a result, all Latin American constitutions lack the flexibility necessary to adapt to social progress, so when change takes the economy and society in new directions, these constitutions seem utterly anachronic. President Bukele should be aware of this and remember that the only country with a constitution that has withstood the test of time is the United States. Before there was a constitutional text, there were the people. And the people agreed on a set of principles for self-government. Should Latin American countries desire to have enduring constitutions, the region has to give up on state intervention and societal control to allow the people to exert self-government through a set of principles that with time will create and strengthen a republic. The alternative is continuing chaos.”

 

Tim Muth, attorney and publisher of El Salvador Perspectives: “The changes proposed by the commission led by Vice President Félix Ulloa are wide-ranging, from lengthening terms in office of the president and other officials to acknowledgment of important human rights. The draft includes structural changes to the country’s Constitutional Court, to the tribunal which oversees all electoral processes and to the Court of Accounts. The proposal also opens up several paths for direct popular action, from recall elections of public officials to referendums and plebiscites. The constitution could be amended in the future by a simple majority vote in the legislature followed by a popular vote of ratification. These changes could be powerful future tools in the hands of a populist leader like Nayib Bukele. Significant criticism of these proposals focuses on the Salvadoran president. His administration has been criticized both at home and abroad for disrespecting human rights, ignoring the separation of powers, sequestering public information and attacking the independent press in El Salvador. Since the present government has been willing to flout the existing constitution and rulings of the Supreme Court, critics feel it has lost its authority to propose an amended constitution. Absent a major misstep, reforms endorsed by Bukele are very likely to be adopted despite those complaints. The Legislative Assembly, which Bukele’s party controls, rubber stamps his initiatives with little discussion. To become law, the reforms would need to be passed by a two-thirds majority in the next Assembly, which will come into office on May 1, 2024 following legislative elections.”

 

Ricardo J. Valencia, assistant professor of communications at California State University, Fullerton: “The reform proposal represents a de facto new constitution because it seeks to reform 215 out 274 articles of the current constitution. Ulloa’s proposal would increase the role of the president and reduce the autonomy of the other government branches. Also, it would protect sexual and ethnic minorities against discrimination and facilitate the adoption of new cryptocurrencies. Ulloa’s negligible power to shape public policy indicates that Bukele’s loyalists would hijack the proposition. Unlike Chile’s constitutional convention, led by civil society, a small cadre of Salvadoran jurists has led the impossible endeavor of bringing the constitution to modernity and appeasing Bukele’s desire for complete control of the Salvadoran state simultaneously. Bukele’s attacks on the current Salvadoran constitution prove that the president is only interested in reforms that increase his power, reduce judicial and public accountability of government funds, as well as facilitate the state’s use as a platform for wealthy crypto fans. Still, the timing of the proposal and the adverse history of the Salvadoran government make us believe that it is only a smokescreen to hide Bukele’s increasingly authoritarian nature. One of the possible scenarios is that Bukele’s majority in the Legislative Assembly could completely erase the more progressive constitutional reforms and approve the ones that allow him and his party to reign for decades, such as the complete dismantling of the Supreme Court. This might have consequences for the United States. A constitutional reform may put an end to the extradition of Salvadoran nationals to the United States for crimes committed there. A few days ago, the Salvadoran Supreme Court, which is controlled by magistrates whom Bukele unconstitutionally appointed, annulled a U.S. extradition request for an MS-13 leader wanted on terrorism charges.”

[Editor’s note: The Advisor invited El Salvador’s ambassador to the United States, Milena Mayorga, to submit a commentary for this issue but received no response.]