EL SALVADOR: Bukele clears another obstacle to absolute power
Thank you for reading LatinNews' chosen article from the Latin American Weekly Report - 2 May 2024
El Salvador’s legislative assembly, controlled by Nayib Bukele’s personalist party Nuevas Ideas (NI), will have carte blanche to amend the constitution in the new legislature which began sitting on 1 May. At the eleventh-hour the NI pushed through an amendment in the outgoing legislature, which removes the requirement that changes to the country’s 1983 constitution must be approved by two successive legislatures. The increasingly sidelined political opposition and civil society groups decried the move. They argued that, contrary to the NI’s claims that it was responding to the popular will, it was designed purely to concentrate power in the hands of Bukele, who sidestepped a constitutional prohibition on re-election in February [WR-24-05 ], and will next month become the country’s first head of state in nearly a century to serve a second consecutive term.
The reform to amend Article 248 of the country’s constitution was approved by the outgoing 84-seat legislature on 29 April, two days before elected members of the newly downsized 60-member body were due to take up their seats. The constitution confers power on the legislative assembly to amend the constitution, with a simple majority in one legislature followed by a two-thirds majority in the next. However, under the amendment, which was approved by 66 votes in favour, just the vote of three-quarters of legislators in one legislature would suffice to approve constitutional reforms. In the incoming legislative assembly, NI will have 54 seats, meaning that the initiative will be rubberstamped and it will then comfortably exceed the threshold for future constitutional reform.
Since February 2021, when NI won an unprecedented two-thirds legislative majority enabling Bukele, who took office in June 2019, to stack key institutions like the supreme court (CSJ) and constitutional chamber (SC) with loyalists, speculation had gathered pace that constitutional reform would be on the cards – not least to remove the ban on consecutive presidential re-election. In September 2021, a commission led by Vice President Félix Ulloa?and tasked by Bukele with drafting changes to the constitution, unveiled its proposals, which included plans to amend presidential term limits and the process of changing the constitution itself [WR-21-33 ], with eventual amendments put to a referendum.
In the event, Bukele shelved the initiative after securing a favourable ruling soon afterwards from the now-pliant SC [WR-21-36 ] which enabled him to run for re-election in February 2024. Nonetheless, suspicion persisted that the definitive removal of these limits through constitutional reform was just a matter of time. Article 248 explicitly states that “Under no circumstances, may the articles of this Constitution, which refer to the form and system of government, to the territory of the Republic, and to the principle that a President cannot succeed himself, be amended”.
El Salvador’s constitution is inflexible on this point, packed full of padlocks to prevent a strongman from taking complete control of the state. But the amendment to Article 248 paves the way for wholesale changes by Bukele’s NI without the need for ratification in the next legislature. For starters, it could move to quietly drop the section in Article 248 clearly circumscribing the scope of any constitutional amendment.
Unsurprisingly the latest manoeuvre by the NI-controlled legislature has been blasted by the main opposition right-wing Alianza Republicana Nacionalista (Arena), which has just two seats in the new legislature, down from 15, and the left-wing Frente Farabundo Martí para la Liberación Nacional (FMLN), which has been left without any seats, having had four previously. Arena released a statement saying it would now be possible for the constitution to be reformed in a day: “10 deputies could present an initiative at 10 o’clock in the morning, take a break for a coffee, and ratify it at 11 o’clock.” It said the NI would simply do Bukele’s biding, and could decide to insert an article allowing for a state of exception to be declared indefinitely, for instance, to remove the need to keep voting to extend it. Bukele has maintained that he has no intention of standing for re-election again because it is not allowed by the constitution, but NI now has a free hand to remove the articles outlawing it.
The local civil rights NGO Fundación de Estudios para la Aplicación del Derecho (Fespad) argued that the reform “opens the door to arbitrariness and abuse of power and seeks to strengthen absolute power”. It also drew condemnation from other civil society groups. Local NGO Acción Ciudadana (AC) warned NI is “eliminating another political counterweight”, while a joint statement signed by AC, Fundación Nacional para el Desarrollo (Funde), the local branch of international NGO Transparency International, and the human rights institute of the Universidad Centroamericana (Idhuca)?pointed out that the actual process of constitutional reform is one of the key counterweights that currently exist in the Salvadorean political system, in terms of protecting citizens’ rights in the face of “abuses of legislative majorities”.
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The NI president of the legislative assembly, Ernesto Castro, dismissed the criticism, justifying the constitutional reform on the grounds that “the Salvadorean people have demanded changes in our country”. When the initiative was presented NI argued that “this assembly has seen the necessity amid rapid change and new emerging realities that current and future generations have a tool to be able to confront these challenges immediately”. But it is difficult to sustain the argument that Bukele and his ruling party are primarily motivated by the urge to improve the ‘rights of the people’ when the outgoing NI-dominated legislature did not even approve the right to water that the previous legislature had approved. If “the will of the people of El Salvador” is its uppermost concern, why did the party not include constitutional reform in its election campaign? And why did it do away with the recommendation by the commission led by Vice President Ulloa to put constitutional reforms to a popular referendum?
NI deputy Ana Figueroa argued that far from weakening the constitution, the party had strengthened it by pushing up the threshold for constitutional reform from two-thirds to three-quarters. But this is disingenuous. It would not have settled on the three-quarters threshold unless it could comfortably clear it, while doing away with the need for constitutional reforms to be approved in two consecutive legislatures makes the constitution far more vulnerable to the caprice of an authoritarian government.
Consolidating power
The approval of the initiative is just the latest in a string of measures ratified by the NI-controlled legislature aimed at further concentrating power in the hands of Bukele and his party. Other examples include legislation ratified in June 2023 which reduced both the legislature’s size and the number of municipalities (to 44 from 262), as well as amending the formula for calculating the distribution of legislative seats [WR-23-23 ]. This came on the heels of amendments to the electoral code passed in March 2023, which removed previous constraints on? amending electoral laws within one year of elections [WR-23-11 ].
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