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“Defending the Constitution Is Not Up to One Court. It’s the Collective Work of Citizens Committed to the Democratic Order.”

Rodolfo González, former magistrate of the Constitutional Court, warns that any president running afoul of the court’s rulings is committing a crime. The constitution grants the judicial branch various means, he says, of enforcing its decisions. González forewarns that, given Bukele’s authoritarian streak, seen both now and in the military occupation of the Legislative Assembly on February 9, the president will continue to reject the authority of other branches of government. He reminds us, “Saca and Funes also thought they were untouchable.”

 
 

As the Salvadoran government seeks to mobilize a response to the COVID-19 pandemic, a mounting confrontation between the executive and judicial branches is escalating into a political crisis.

On April 14, President Nayib Bukele issued Executive Order 19 through the Ministry of Health, establishing “extraordinary prevention and containment measures” to slow the spread of the virus. On the basis of the order, Bukele has sanctioned the ongoing detention of hundreds of people for violating the domestic quarantine order, according to Human Rights Watch.

The next day, the Constitutional Court ordered the government to cease detentions for the violation of domestic quarantine, arguing that there is no law in place to authorize such a deprivation of liberty. In his response, President Bukele accused the magistrates of “wishing our people dead” and, on Twitter, announced he would not uphold the ruling. “5 people are not going to decide the death of hundreds of thousands of Salvadorans… no matter how much ink or stamps they use,” he wrote.

During a televised morning interview on Canal 12 on Thursday, April 16, his legal counsel, Conan Castro, confirmed that the executive had decided not to sustain the ruling.

“This is very serious,” responded Rodolfo González when asked to assess Bukele’s recent pronouncements. “He’s dragging the country to the precipice.”

González served as magistrate of the preceding Constitutional Court—magistrates are elected by the Legislative Assembly to nine-year terms—which became known as the “fantastic four” for consistently handing down verdicts in a manner independent from political and economic interests. Since the current constitution took effect in 1983, he says, never has it faced such a threat as it does presently. “Defending the constitution is not up to one Court. It’s the collective work of citizens committed to the democratic order,” he remarked.

To the former magistrate and attorney, the executive’s actions on April 15 are not an isolated incident; rather, they are the deliberate efforts of an increasingly authoritarian ruler to remove obstacles to his messianic mission. We saw the same behavior on February 9, he argued, when Bukele occupied the assembly with military force, “and we’ll see it again.”

Shortly after Bukele’s declarations, González wrote on Twitter: “This is absolutely intolerable. The Court has the legal avenues to ensure that its verdicts, which are constitutionally-binding, are carried out.”

I called him at noon on April 16 to understand which legal avenues El Salvador possesses to emerge from this crisis. Below is our conversation.

Caption: Rodolfo González, former Constitutional Court magistrate (2009-18). Photo by Víctor Peña/El Faro
 
Caption: Rodolfo González, former Constitutional Court magistrate (2009-18). Photo by Víctor Peña/El Faro

Does the president have the power to void the decisions of other branches of government?

No, he does not. In states such as ours, political legitimacy only comes through the democratic process, in accordance with the rule of law. Executives are permitted to govern with their own distinct style, but they must never disregard the fundamental division of powers or the law.

In political systems such as ours, presidential power is subordinate to legislation and the constitution, and the judicial power is the ultimate arbiter of rights and responsibilities. If a person is charged with a crime but maintains their innocence, it is up to a tribunal, not the parties, to establish guilt. Similarly, the judicial branch—not the executive or legislative—must adjudicate political disputes.

But when a president defies the Constitutional Court’s authority, that seems quite different from standard courtroom litigation. In other words, the effects on our democracy…

This is very serious, given that he is the head of a group of public officials tasked with running various departments of government. There is a broader risk of infringing upon civil rights. The ministers, governors, ambassadors, and presidents of publicly-owned companies report to the president.

With Bukele, I’m convinced there’s a mixture of ignorance about the legal and political framework, plus an authoritarian streak. But let’s say, in good faith, that his interpretation of his own powers—in this case, his ability to curb individual liberty—contradicts the findings of the highest court in the land. There is an extremely high risk that the chief of police, the minister of defense, and the rest of the officials under the executive will follow his lead. The potential for violations of individual liberty in the streets grows exponentially, because right now, soldiers and police are judges in the streets determining if your mask is on correctly, or if you are keeping your distance from others.

El Faro called Bukele’s actions on February 9 a self-coup. Are his words on April 15, as well as the confirmation of his legal counsel, Conan Castro, on the following day, yet another self-coup?

These events pose a real threat to the nation’s institutionality. At a bare minimum, assuming public office requires knowledge of, and commitment to respect, the republican system of division of powers through checks and balances, and above all, the limits to presidential power. He can’t determine them himself. Two centuries ago, the idea of political self-restraint was discarded in favor of the idea that the judicial branch should set the limits of executive power.

These fanatical notions of "saving the nation" are a form of savior complex. On February 9, the justification was security. On April 15, it was public health. By May, the justification tipping the scale of institutionality could very well be national security or some other esoteric argument, imposing the president’s reading of the constitution over that of the body with the last say in interpreting legality—the Court of Constitutionality of the Supreme Court.

Unless we properly tend to the system of checks and balances, this type of abstract pretext could very well return, within months, under similar or worse circumstances. It will happen again.

What makes you say that?

It’s clear as day: the road to authoritarianism. We saw it a century ago in Germany: "I am the only one who knows the needs of the people. Nobody comes between me and the people. All these institutions are stumbling blocks in the path toward the people’s glorious destiny." We see examples of this throughout history.

Does the president’s declaration flouting the Court’s authority, or the legal counsel’s reiteration, constitute a crime?

They at least speak to intention. We’ll have to see how they play out. Right now, if people are being detained and sent to detention centers, ignoring… The court has clearly ruled that it cannot be ignored.

What do you mean?

The idea is that someone broke quarantine and went outside, and based on that act alone, they are presumed a vector for contagion—which is absurd, because if someone else presents a certificate from their employer, they are no longer considered a risk. It’s unreasonable. Both the secretary of legal affairs and the legal advisor have announced the executive’s refusal to comply. If that materializes into instances of detention, where 30-day isolation is wielded as a punishment rather than a public health measure, then it becomes a crime. I believe the court should activate the tools at its disposal to enforce its rulings. According to the constitution, tribunals have the power to judge and to enforce their judgments.

What consequences does a president incur if they reject the Constitutional Court’s authority?

The penal code refers to violation of a court order. The Court ruled that Executive Order 19 is not a legitimate basis for the deprivation of liberty, so anyone ordering or carrying out such an act is party to the crime of unlawful detention.

But the nature of wrongdoing and consequences for a police officer who detains someone are different from a president or other official who openly refuses to uphold a court order.

Prosecutors have the discretion to analyze whether [the position of the individual] is an aggravating factor. I would say it is. There is a difference between a frontline enforcer—such as a police officer or soldier—who might have doubts as to whether their actions are right, and a higher authority who, supposedly under adequate legal counsel, and with undoubtedly greater knowledge of cause, knowingly and willfully commits the crime in question. The attorney general should weigh these factors.

Is that the purview of the Constitutional Court or the attorney general?

In this case, the court can look to habeas corpus under the Law of Constitutional Procedure. The law states that if a judge disobeys a court order, the Court will initiate disciplinary action before the Supreme Court. If an official under the executive branch—but other than the president—disobeys, the Court notifies their superior, the president. And if it is the president who disobeys, the matter goes to trial by the Legislative Assembly. Previously, the president tweeted that his order would continue full-force. The Court can and should declare Executive Order 19 unconstitutional ex officio. With [former Peruvian president] Fujimori and [former Guatemalan president] Serrano Elías, the respective courts swiftly acted when confronted with a grave threat to their constitutional republics.

But I suppose that would be the last resort after a series of other moves...

Yes, like freeing people from detention centers…

Well, the Court can’t do that. It can only order their release. I say that because the Court already ordered it, yet they continue to hold them. In a stand-off like this, where the court has ordered one thing but the proper authority is not complying, what happens?

Even though the president is the commander-in-chief of the military, they are not the Armed Forces of the executive branch. The constitution clearly states, in article 212, that all three branches of the state can call on the military to ensure that their rulings are duly enforced. Ruling on writs of habeas corpus is the responsibility of the judicial power. I’m aware that if the Court ever issued a resolution calling for the use of the armed forces, it would amount to a true state crisis, but, to be clear, Bukele and his strain of populism have brought us to this point. Set aside the authoritarian streak and the fanatical cult of personality; let’s analyze his interpretation of the public health threat. He thinks that the only way to protect public health and avoid mass death is through a caricature of people out in the street as the engines of the pandemic. That’s why we send them in the middle of the night to detention centers where they cannot access their own testing results. He says it’s the only way to rein in contagion. But habeas corpus protects individuals against unlawful detention, and the court’s ruling is clear: people are being deprived of liberty. The constitution gives the judicial branch the authority to use the armed forces to enforce its rulings. I know this sounds deeply troubling. The clause has never been invoked since the constitution took effect in 1983, but the executive’s absurd exercise of power has brought us to this point. This irresponsible brand of populism has brought us to this abyss.

When was the last time that the executive rejected the authority of the Supreme Court?

This brings to mind when Mauricio Funes refused to publish two court decisions in its Official Gazette. We sent it, instead, to two newspapers with the highest circulation. Our rulings affected the dealings of the FMLN, the then-governing party, with the Integrated Transportation System of the Metropolitan Area of San Salvador (SITRAMSS), by freeing up a transportation line as a precautionary measure. People supposedly from the party arrived threatening to kick the courtroom door down.

But they heeded the ruling and freed up the line.

In the end, the Court managed to ensure that its decision was upheld. After spending weeks or months approving a law, it’s normal for Congress to feel resentment when the court strikes it down. It’s understandable. But you can’t peddle the trite talking point that you’re on the side of the people and, therefore, will continue doing what the court prohibited. You cannot do that.

You certainly can—it’s exactly what Bukele did. What I can’t quite grasp is what tools the Court has to curb an executive behaving like this.

Defending the constitution is not up to one Court, or the Constitutional Court. It’s the collective work of citizens committed to the democratic order. We’re hearing relatively sane people saying: “The lives of many people are at stake, and we don’t want a mass outbreak, so obeying the law doesn’t matter. All that matters is saving lives,” and that’s deeply troubling, because the citizenry—not the executive, nor judicial, nor legislative branches—must weigh its commitment to playing by the basic rules of democracy. Not all hinges on how loud, brave, or technically correct a court can be. It goes far beyond that. Populists use reductive talking points to appeal to people’s ignorance of the rules.

The rhetoric isn’t only populist, though; it’s popular. It’s all worsened by the fact that even the minister of defense and the chief of police have pledged loyalty to the president over the constitution.

Yes, but having served as magistrate to a court that sent [former presidents] Elías Antonio Saca and Mauricio Funes to trial for embezzlement, and having worked with Attorney General Douglas Meléndez and the public ministry to detain and try people accused of corruption or embezzlement, one would think that these would serve as precedent to avoid future abuse. Flores, Saca, and Funes all thought they were untouchable. All these people that are currently blinded by populism… I don’t just say this myself, but the Court has reminded them, in its ruling on April 8, that there will be civil and criminal liability for anyone who violates people’s constitutional rights. They won’t be able to claim that they were just following their superiors’ orders... These are the Court’s words, not mine! If people still don’t catch on, well, we’ll eventually see them in court, like we saw Funes. Like we saw Saca. Like we saw their assets liquidated. Those are the rules of a democracy.

But what’s more, let’s be clear: this already happened on February 9, and it happened again on April 15. And we’ll see it again.

But right now, to whom do we turn to uphold the law? The attorney general? The Assembly? The whims of the commander-in-chief?

I would say we can take two avenues: on one hand are the institutional processes and mechanisms under the Attorney General’s Office, the Supreme Court, and the Assembly to curb abuse and uphold the law; but on the other, and perhaps more importantly, is persuading public opinion that it is unwise to ride the tiger today, only to fall prey to it tomorrow. We’d be running from our system of checks and balances into the arms of a strongman. If he takes wise steps, we all benefit, but if he missteps, we fall off the edge with him. This is what happened with Hitler. As citizens, we should understand this history. Bukele’s words on April 15 are true: yes, the magistrates of the Constitutional Court are just five people. Just like the justices of the U.S. Supreme Court are just nine people. But around them should be the understanding, conviction, and commitment of their respective societies. Pitting one leader against five legalists? That’s not the way.

The Court has kept a respectful tone, saying that for the moment there is just an executive order, and that if they want to continue the detentions for violations of quarantine, they should put it into law.

There’s another complication here: it’s unclear to people how the public square should be governed, what is and is not acceptable, and what they can expect from authority…

Exactly. The state of exception, which we had not seen since 1990, lasted one month. Misguided police officers or soldiers took it as a license to tell people they couldn’t be out after certain times, that if you were carrying beer home from the supermarket among your groceries… we saw that last month. Faced with rulings, they respond with base appeals to pathos over logos: “Instead of respirators, we’ll serve the sick with a constitution,” etcetera… The court order never said everyone should roam the street freely—just to stop sending them to detention centers.

 

*Translated by Roman Gressier


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