The Legislative Assembly gave the Executive Branch the ability to restrict the freedom of transit and assembly after two marathon sessions during which it also approved a national emergency regimen with the goal of preventing the spread of Coronavirus in El Salvador.
On Saturday, March 14, despite pressure from Nayib Bukele’s office to obtain approval of two decrees without major issue (a state of exception and a national emergency), political opposition toned down the Executive’s demands before allowing him to restrict mobility around the country and more rapidly access funds. The Assembly stopped Bukele from controlling other constitutional powers including the freedoms of speech, freedom of association, and interventions into telephone and mail communications.
With a second law, which declares a national emergency, the Assembly was able to maintain control over the movement of public funds and loans that could later be redistributed to address a health emergency. The Assembly can call emergency sessions to approve the use of these funds without major setbacks.
Specifically, the “Law on the temporary restriction of certain constitutional rights to deal with the Covid-19 pandemic” will restrict, for 15 days, two constitutional guarantees: the freedom of movement and the freedom of assembly, with the aim of slowing down the coronavirus spread.
According to the president’s office, both decrees have been “legally constituted as of March 14.” However, sources at the Legislative Assembly told El Faro that the final redaction of the temporary restriction of constitutional rights degree “wasn’t signed by the majority of members required from the Board of Directors” on that day and was instead sent to the president’s office on Sunday, March 15. The regular process of creating such a law requires a favorable sanction by the Legislative Branch and an official sending to the Executive Branch, with the signature of the majority of the Assembly’s directors, as well as approval by the President. After these processes, it is sent to the National Journal for publication.
The decree, which will go into effect once it is published in the National Journal, restricts free transit and the right to peaceful assembly. The measure seeks to enhance prevention efforts in border areas and reduce the risks of contagion in public agglomerations and in parts of the country that have been identified as “risk areas.”
Salvadorans who want to enter the country must go through a quarantine process, as stipulated by the authorities, but the departure of nationals from the territory is not prohibited.
There are no confirmed cases of coronavirus in El Salvador, according to the government. Bukele said that, out of 37 suspected cases of infection that have been presented, all have tested negative. In Central America, only El Salvador and Nicaragua report no cases of contagion. In Guatemala, one case was reported on March 13, while in Costa Rica, Honduras and Panama, cases have been reported since the beginning of March, exceeding thirty among the three countries. Costa Rica leads the region with 26 confirmed cases.
Concessions to Bukele
Bukele’s government, which has launched a campaign against the Legislative Assembly ever since it presented its demands, celebrated the approval of the decrees on March 14. However, the final drafts of the two approved bills are far from the original demands made by the presidency.
The government claims that, in order to prevent the virus’s spread, it tried to gain constitutional powers to restrict crowds (infection risks) and obtain the necessary resources to attend to the emergency through movements of health resources.
To meet the first goal, Bukele proposed a state of exception, a measure questioned by human rights organizations and opposition lawmakers. The main fear against the proposal was a precedent set by Bukele himself: On February 9, backed by heavily armed military forces and the police, Bukele took the Legislative Assembly to press the approval of the negotiation of a $109 million loan to finance a security plan. According to the Constitution, a state of exception would allow the suspension of constitutional guarantees, including the freedom of association and expression.
By the end of the week, and after circumventing criticisms, the government indicated that it didn’t seek the curtailment of those rights, but it lashed out at the opposition, claiming they would be responsible for a health crisis if they didn’t vote on the decrees.
The second bet was to request a state of emergency, in which the government is allowed to make use of public funds with looser controls by the Legislative Assembly. After the clash between the Executive and the Legislative branches on February 9, the Assembly took its time to study Bukele’s proposals and tone down his demands. Specifically, lawmakers modified the original proposal to make it more transparent when it comes to the movement of public resources.
The president had asked for the autonomy to move public funds between different institutions without the Assembly’s endorsement, but it was established that the Assembly will authorize these movements in emergency meetings. And while the president wanted to make purchases without following the Procurement Law, the Assembly established that they can make direct purchases of “goods and services related to the population’s health care,” and that such purchases must be reported.
Until Friday, March 13, the president had also asked for a blank check to transfer public funds to individuals and private entities to attend the emergency. This article was deleted, as was another that authorized the Treasury to manage financial resources from multilateral entities or organizations.
In a law detailing the “state of exception,” Bukele proposed “suspending” two constitutional guarantees, but the decree that lawmakers voted on changed the verb to “restricting.” The lawmakers also further defined the cases in which the government can limit the right of free transit across the country and the kind of meetings that can be prohibited in order to guarantee the population’s health.
Article 29 establishes that, in a state of exception, some constitutional guarantees may be suspended for a period of 30 days due to war, invasion, rebellion, sedition, catastrophe, epidemic or other calamities. In the decree approved on March 15, freedom of expression will not be restricted and the restriction’s term was reduced to 15 days, which could be extended.
During the first legislative session that tackled Bukele’s two proposed laws, the opposition parties — Arena, FMLN, PCN and PDC — decided, as a block, to vote for the state of emergency but not for the state of exception.
Until the morning of March 14, members of the Cabinet lobbied for the approval of both laws. During the negotiations after the first consultation session — which was held at 4:30 a.m. — they managed to find a crack among members of Arena, who ended up voting for the second law that night.
Two sources who learned of the latest negotiations between Carolina Recinos, the head of the Cabinet, and members of Arena, and who spoke under the condition of anonymity, said that, at dawn, the president’s office pressured Arena and PCN to vote with Gana to approve the state of exception. The threat, the sources said, was that if only the emergency declaration passed, it would be vetoed by the president, whose officials, throughout Friday and Saturday, publicly condemned lawmakers who they said were voting “against Salvadorans’ lives.”
'The Constitution provides for a State of Exception for 'exceptional' situations that our country may suffer at any point in its history. What kind of exceptional situation are lawmakers who do not want to approve it waiting for?” Bukele wrote hours before the vote.
By the end of the day, the right-wing parties joined Gana, the president’s party, collecting 58 votes. In Arena, some of the proprietary lawmakers were replaced by substitutes, in a maneuver that has already been questioned by the Constitutional Chamber, which has already annulled decrees when lawmakers resort to substitutes, at the last minute, to get a vote.
