El Salvador / Transparency

Constitutional Court to Bukele: Stop Using the Armed Forces to Put Democracy at Risk

Thursday, February 13, 2020
Sergio Arauz

On Monday, February 10, the Constitutional Court ruled that president Nayib Bukele jeopardized democracy after bursting into the legislative chamber with an entourage of dozens of heavily-armed soldiers and policemen. His forceful occupation of the Assembly on Sunday afternoon culminated in threats against the deputies. “It’s clear who is in control here,” said the president, sitting in the chair reserved for the president of the legislative body. 

The Constitutional Court’s resolution rebuked the events as a violation of the separation of the three state powers and triggered national and international condemnation. The magistrates reasoned that “the wielding of weapons and active-duty military officials’ current positions of authority are apt to cause intimidation and influence people’s decisions for reasons other than their political convictions.”

The court continued: “Armed forces cannot be employed for political, partisan, or other unconstitutional purposes.”

The ruling, in effect a temporary injunction against Bukele’s actions in defense of the legislative branch, was issued in response to a claim of unconstitutionality filed by citizens Ruth Eleonora López Alfaro and Luis Ramón Portillo Ayala.

The ongoing skirmishes between Bukele and the Assembly escalated on Wednesday, February 5, when Bukele invoked a constitutional power of the Cabinet to call for an emergency session of the Legislative Assembly, with the sole purpose of approving a loan of $109 million from the Central American Bank for Economic Integration. The money would finance the third stage of Bukele’s Plan for Territorial Control. Lacking a filing from the involved parties in the days leading up to the confrontation, the court stayed quiet as Bukele called for the extraordinary session. The Assembly refused to convene, arguing that the executive branch had overreached and mistaken its constitutional authority.

López and Ayala presented their complaint on Saturday morning while the army surrounded the Legislative Assembly. By then, Bukele and some officials had already taken to Twitter to call for a popular insurrection if the Assembly refused to meet and consent to the president’s request. According to some magistrates, the time of the filing of the complaint did not leave enough time for them to take action and announce the filing until Monday. After the occupation of the Assembly on Sunday, Bukele headed outside to a stage constructed by the president’s staff, where he gave a speech implicitly threatening to dissolve the Legislative Assembly. Furthermore, the president threatened, if the Assembly did not comply with his agenda in a week’s time, he would return to the legislative chamber “together with the people.”

The court’s decision places it as an arbiter and brings the executive branch’s agenda to a definitive halt. The verdict also thwarts the “continued threat against the government’s political system and separation of powers through public and military force.”

The highest court of justice’s unanimous ruling dealt yet another blow to the Bukele administration, which already had received international condemnation. Even the United States, the new administration’s chief ally, joined the condemnations of the use of the Armed Forces. The injunction mean to restrain the actions of the president, his cabinet, and especially his minister of defense and chief of police.


Four checks on the use of security forces

The ruling of the country’s highest judicial body declares that the occupation of the Assembly is “evidence of actions that put the republican and democratic character of the government and pluralistic system at risk.”

The court sustains that the president’s actions put “at risk the organic separation of functions or division of powers” by demonstrating elements of “a potentially illegitimate use of military and police force.”

In its 14-page resolution sternly rebuking the president, the court ordered four precautionary measures. First, it ordered the cabinet to cease calling for a plenary session of the Legislative Assembly to authorize the negotiation of the loan in question.

The second order is to “terminate the effects of any rule or regulation imposed by the cabinet’s summoning of the Assembly. 

The third and most forceful order is aimed at the president: Bukele must “abstain from using the Armed Forces contrary to their constitutionally-established purposes and stop putting at risk the government’s republican, democratic, and representative order, the pluralistic political system, and, particularly, the separation of powers.”

Finally, the court ordered René Merino Monroy, minister of national defense, and Mauricio Arriaza Chicas, chief of the National Civil Police (PNC in Spanish), to “not engage in functions and activities apart from their constitutional and legal mandates.” In other words, they should not entertain calls like that of last Sunday urging them to take what the court deems “political action.” 

In its resolution, the court also established that the PNC “cannot lend its services to political, partisan, or personal objectives, nor any other purpose that falls outside of its legal and constitutional mandate.” The court based its argument on article 159, subsection 2 of the constitution, which establishes that public safety will be in the hands of the National Civil Police, which will be a professional, apolitical body independent from the Armed Forces.

Efraín Arévalo, constitutional expert, explained that “the resolution doesn’t impede the president from calling for another meeting, but from using the PNC and the Armed Forces to push his agenda.” What the resolution does require, according to Arévalo, is that the Armed Forces and PNC stop obeying unconstitutional orders from the president. “The Court orders you to abstain from supporting actions designed to intimidate political parties, and in particular, deputies.

The plaintiffs also asked the court to censure the president’s calls for popular revolt through Twitter since Friday. In the ruling, while the court responded that “a tweet cannot be subject to direct constitutional censure in this case,” it allowed the plaintiffs to submit journalistic reports registering the president’s rallying cries. The court noted that these calls took place “without the required conditions for the people’s sovereign exercise of this right.”

Arévalo explained that when article 87 refers to the right to insurrection, it does so envisioning a scenario in which the president is committing gross violations of citizens’ rights. Yet while Bukele has invoked the right against the legislature, he himself has taken actions causing a shift in judicial norms and a consolidation of the separation of powers.

(From left to right) Aldo Cader, Carlos Sergio Avilés, Carlos Sánchez and Marina Marenco de Torrento, four of the five magistrates of the highest court of justice in El Salvador, at their swearing-in on Friday, November 16, 2018. Photo by Carlos Barrera/El Faro.
(From left to right) Aldo Cader, Carlos Sergio Avilés, Carlos Sánchez and Marina Marenco de Torrento, four of the five magistrates of the highest court of justice in El Salvador, at their swearing-in on Friday, November 16, 2018. Photo by Carlos Barrera/El Faro.

The president backs down

Around 9 p.m., the Office of the President issued a statement responding that “while we might disagree with the decision, […] we will comply with the Constitutional Court’s order as we wait for a final interpretation.” They maintain that the president has the right to call the deputies to a plenary session through his cabinet.

“We call on the Constitutional Court, as it issues its final corresponding verdict, to take into consideration the current security interests of the republic, through an interpretation that allows the Constitution to adapt to current realities, so that it does not issue a related constitutional ruling curbing the powers of the Cabinet.” The statement fails to acknowledge any wrongdoing or interference in the events of last Saturday.

On Monday afternoon, when the court issued a press release announcing its resolution, the president responded to the Supreme Court via his official Twitter account: “The system shields itself. And that is how things have always stayed the same,” he wrote.


* Translated by Roman Gressier

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