- A constitutional crisis looms in El Salvador in the wake of massive protests against new legislation that undermines the power of the judicial branch.
- President Mauricio Funes, once the self-professed “candidate for change,” disillusioned his supporters by veering to the right and signing Decree 743 into law.
- The proposed law was a response to rumors that the 1993 Amnesty Law, which absolved perpetrators of war crimes from legal prosecution, was scheduled to be overturned.
- A change in the Amnesty Law could be detrimental to a number of active politicians on both sides of the political spectrum.
- The Salvadoran Supreme Court took an unprecedented step in affirming its independence from political parties.
An Alarming Decree
Protesters took the Salvadoran nation by storm last week in response to a new law passed by conservative assemblymen. This measure asserted that no resolution could be declared unconstitutional without a unanimous vote in the constitutional court—a judicial body responsible for reviewing the legitimacy of laws. Previously, any resolution seeking to define a law as unconstitutional required an 80% majority in the committee, which comprises five Supreme Court Justices. However, seditious Decree 743, hastily passed in a matter of hours on Thursday, June 2nd, requires an unattainable unanimous agreement. The Justices argued that this represented a threat to the separation of powers and to the system of checks and balances in the Salvadoran government, and thus declared Decree 743 unconstitutional by a four to one vote. Four of the Justices who voted to annul the decree are presently liberal and the Justice who voted in opposition is conservative.
This legislation was designed in response to fears that the Supreme Court would attempt to dismantle the 1993 Amnesty Law, which absolves all war criminals, some of whom are currently elected officials, from legal retribution. In addition, authors of the law were concerned that Supreme Court Justices would have the opportunity to reexamine the Central America Free Trade Agreement (CAFTA-DR) and the dollarization of the economy. A series of progressive resolutions, that were issued thanks to a liberal majority in the Supreme Court’s constitutional committee, threatened both conservatives and liberals on the bench. Civilian organizations and citizens predicted that Decree 743 would indefinitely halt constitutional procedures by preventing and therefore threatened to ignite the fire of a popular uprising.
Spurring an Uprising
El Salvador’s conservative parties, including the National Republican Alliance (ARENA), Grand Alliance for National Unity (GANA), National Conciliation Party (PCN), and Christian Democratic Party (PDC), in collaboration with the FMLN President Mauricio Funes, shocked the Central American country with their incendiary measure. If applied, the decree would require an improbable unanimous vote that would be supervised by the judicial body that oversees claims of unconstitutionality.
Alarmed and concerned that a unanimous vote would be all but implausible, public prosecutors, students, journalists, and a sampling of politically active citizens almost instantly took to the streets in protest once the law was promulgated. Protesters, outraged by the controversial decree, swelled in number as the hours passed. Demonstrators set up camp outside the Presidential Palace in a powerful manifestation condemning a law that could very well threaten future democratic development of the small nation. The popular uprising called for the nullification of Decree 743 before the law could even be implemented.
In 2009, El Salvador elected the so-called “candidate for change”—none other than the nation’s current president, the supposedly liberal Mauricio Funes. It is unimaginable that the nation’s polarized political parties will easily agree on any controversial issue, such as gay marriage, abortion, and women’s rights; therefore, the social reforms Funes proposed during his 2009 campaign are now likely to be stalled indefinitely.
Funes Swings Right
The most distressing development is not that the right wing would attempt such a farfetched maneuver, but that Funes would actually sign the decree into law. The act was being signed comparatively late in the Funes presidency and reveals the administration’s undetected swing to the right, causing his former supporters to question the motivation of betraying his party and its ideals. Without question, the tides have shifted, redefining the political waters of a leader who once proudly proclaimed himself to be a disciple of the revered Monsignor Oscar Romero and an indefatigable challenger of the Salvadoran right wing.
Funes reportedly backed the decree in an effort to gain support from the right for his relatively moderate legislative agenda, but the move then backfired subjecting the President to widespread criticism and resulting in plummeting support.
On June 5, the FMLN publicly condemned the right wing for allowing such a law to pass, in an attempt to save face with its former supporters, yet the party omitted any mention of president Funes’ involvement.. Although he had carved out a role for himself in the “lightning operation,” the party’s statement amply alluded to the FMLN president. But before the decree was fully discussed, he offered his support and then authorized the law almost immediately. Only later was it discovered that he had been involved in the decree’s formulation to begin with.
In its declaration, the FMLN strategically failed to mention that two of its party representatives hastily signaled their support for the decree and pushed for the law to be approved by the executive branch the very same day. The remainder of FMLN representatives abstained from the vote, demonstrating a reluctance to face the consequences of either position. However, backing down on their vote has proven equally detrimental to the democracy as voting for the proposed law would have been.
The FMLN, avoiding a firm stance on the matter, stated its belief that “a serious, open and sincere dialogue between the governmental branches is the very least that society demands…” The leftist party went on to state that El Salvador should use this opportunity to prevent any future attempts by any branch of the government from violating the constitution.
A Threat to the Separation of Powers
Under the conditions of Decree 743, El Salvador would have been unable to reverse either the 1993 Amnesty Law, CAFTA-DR, and dollarization or adhere to a number of OAS suggestions, such as equal rights for same-sex unions or marriages. Previously, El Salvador deemed same-sex marriage and unions as unconstitutional. Considering that the fifth Supreme Court justice has a history of voting conservatively, a unanimous vote was highly inconceivable to reject such a declaration.
Aware of his party’s pusillanimous position and in an attempt to protect his image, the FMLN president of parliament, Sigfrido Reyes, called the event “a democratic tragedy”. The leftist ruling party maintains that to allow such a law to continue to exist is to slash the Salvadoran people’s right to a timely and an entirely appropriate declaration of unconstitutionality. Supporters mourned the loss of a functioning democracy. The Salvadoran newspaper, El Faro, reported that lawyer Bessy Rivas was so stricken by the news that she shed tears in a show of civil disobedience outside the presidential palace while holding a sign that stated, “I am stunned by the sanction you made…Mr. President.”
The ARENA party backtracked on its support for the decree, but the damage has been done. The conservative party, troubled by the protests and fearful of its potential consequences, chose to retract its stance, which “provides a way out of what had threatened to become a major institutional crisis.” According to LatinNews, ARENA leader, Alfredo Cristiani, said that “[ARENA] would propose a new bill to repeal the controversial legislative decree”.
Nevertheless, the Supreme Court has taken matters into its own hands by taking the unprecedented step in affirming its independence from the political parties. In a meeting held last Thursday, June 9th, at which President Funes was present, a bipartisan delegation of politicians affirmed that the final court decision arrived by the Justices would be respected under one condition: that the court rule in favor of the party’s political demands. The Justices publicly declared that they will not be coerced into waiving their right to challenge the opinion of the branches of government and that the matter is not up for discussion.
The Supreme Court Justices of the Constitutional Committee asserted that the legislators cannot block the Supreme Court’s right to impart constitutional justice, proclaiming that they have the ability to delegitimize a decree when it goes against the Carta Magna. The Justices consider the Decree an “interference” with the function of the tribunal court.
The Inter-American Human Rights Commission of the OAS has maintained critical international pressure to repeal the 1993 Amnesty Law, which was deemed illegal under trans-national human rights’ treaties. The Salvadoran Constitution states that an international treaty presides over local law, thus inspiring the motion to declare the law unconstitutional. The two main political forces involved in the bloody twelve-year civil war, ARENA and the FMLN, have maintained a tenuous stance opposing the repeal of the amnesty law. The right and the left are aware that if the amnesty were repealed, politicians from both sides could face heavy consequences. Party members, concerned that El Salvador will follow suit after the annulment of Argentina’s amnesty law, took a radical step to ensure that a repeal would prove unviable.
The law, as it now stands, impedes the ability to enact the changes that would clearly be necessary to promote the common good of Salvadorans. However, there is good reason to believe that the protesters are not likely to rest until the polarized political parties come together to mend any damages that would be caused by Decree 743. According to his critics, Funes has woven a tangled web of hypocrisy and betrayal that ended up disillusioning many of his former supporters. If Funes, who now risks being a fallen leader, hopes to regain credibility, he must make rapid, if not copious, amends to exculpate for his wrongdoings. Until then, he would be wise to engage in some form of contrition for his obvious growing disservice to his nation.
 Latin News Daily. “Arena backtracks in El Salvador.” Latin News. June 9, 2011. http://www.latinnews.com/ldb/LDB22795.asp?instance=5.
 Arauz, Sergio and Gabriel Labrador. “Arena se retracta del decreto contra Sala y FMLN insta a cumplirlo”. June 8, 2011. El Faro. http://www.elfaro.net/es/201106/noticias/4354/
 Latin News Daily. “Arena backtracks in El Salvador.”
 Comision Política Frente Farabundo Marti Para La Liberacion Nacional. EL FMLN FRENTE AL DECRETO 743. June 4, 2011. http://www.contrapunto.com.sv/comunicados/el-fmln-frente-al-decreto-743
 Vaquerano, Ricardo. FMLN Censura Decreto 743 Pero Calla Sobre Funes. 5 June, 2011. El Faro. http://www.elfaro.net/es/201106/noticias/4322/
 Comision Política Frente Farabundo Marti Para La Liberacion Nacional. EL FMLN FRENTE AL DECRETO 743. June 4, 2011. Author’s translation. Contra Punto. http://www.contrapunto.com.sv/comunicados/el-fmln-frente-al-decreto-743
 Vaquerano, Ricardo. “FMLN Censura Decreto 743 Pero Calla Sobre Funes”.
Mauro Arias. “Twitterazo contra Funes”. El Faro. http://elfaro.net/es/201106/fotos/4305/?pid=4
 Latin News Daily. “Arena backtracks in El Salvador.”
 Arauz, Sergio y Gabriel Labrador. “Partidos condicionan desatar a Sala si esta se deja atar en el futuro”. June 10, 2011. El Faro. http://www.elfaro.net/es/201106/noticias/4368/
 Perez, David. “Sala de lo Constitucional declara inaplicable el 743”. June 7, 2011. DiarioCoLatino. http://www.diariocolatino.com/es/20110607/portada/93225/Sala-de-lo-Constitucional-declara-inaplicable-el-743.htm
 Arauz, Sergio. “Sala de lo Constitucional declara inaplicable el decreto que la ataría de manos”.