During a tense Saturday night, preceded by strong rumors that the Executive was planning to declare a state of exception, the Government of El Salvador announced an executive decree that aims to extend the State of Emergency brought on by COVID-19 for 30 more days. The decision was made public at a press conference called urgently and which started after 11 pm on Saturday the 16th, less than an hour before the legislative decree that regulated the State of Emergency during the past month expired, and just 24 hours after the Assembly refused to grant Nayib Bukele’s government an extension, alleging a lack of transparency in the use of funds to combat the pandemic.
The new executive decree unleashed immediate criticism from different civil society organizations, which denounced that the presidency is invading the powers of the legislative branch. The Office of the Attorney General of the Republic has already announced that it will file a claim of unconstitutionality against the decree before the Constitutional Chamber of the Supreme Court of Justice.
In a statement issued after midnight, two hours after the Executive's announcement, the Prosecutor's Office described the new decree as an 'act of usurpation of powers.' 'A suspension of rights can only be carried out through a formal law issued by the Legislative Assembly, so the announced executive decree could exceed its powers,' said the text; 'Although article 24 of the Civil Protection Law grants the power of the President of the Republic to decree a State of Emergency, in this case the conditions for decreeing such state by the Executive Branch are not met.'
To justify the announcement, the National Civil Protection Committee, with the Minister of the Interior, Mario Durán, at its head, invoked article 24 of the Civil Protection Law, which says that, in case the Assembly is not in session, the President of the Republic may decree a State of Emergency. The Prosecutor's Office refutes the argument, stating: 'The Legislative Assembly is not unable to meet at this time, so it has the legal and constitutional legitimacy to analyze the State of Emergency.'
Bukele continued pressing his case throughout Saturday from his Twitter account, demanding that the Assembly meet on that same day. The president of the Legislative body, however, scheduled a meeting for Monday at 3:00 pm.
Bukele’s move calls to mind the events beginning last February, when the Assembly held an emergency session Saturday, February 8, in search of an agreement to authorize the Executive to negotiate a loan that would finance its security strategy. Failing to do so, the assembly scheduled a new plenary session for Monday, February 10, but President Bukele wanted to force it to meet on Sunday, February 9. He entered into the chamber with the military and threatened to dissolve it in a show of force and intimidation of the Legislative power that received unanimous international condemnation.
FMLN deputy Gustavo Acosta described the attempt by the Executive to decree an extension of the National Emergency Law as a “flagrant violation of the Constitution.” 'An executive decree cannot extend a legislative decree,' he explains. PDC deputy Rodolfo Parker also maintained that, by extending a law, the president and his ministers have broken the constitutional order 'invoking a false cause.' He said that the Assembly has met permanently and that the decision not to approve the Executive's request for an extension is due to 'all the irregularities' that have occurred in its management of the emergency.
Rolando Alvarenga, former president of the Arena party and Legal Secretary during the presidency of Armando Calderón Sol (1994-1999), argued that the Executive cannot claim that it’s applying the Civil Protection Law when President Mario Ponce summoned the deputies that same Saturday for a plenary session on May 18. Ponce himself defended the time that the Assembly is taking to evaluate a new State of Emergency: 'The Government has not sent the complete and detailed reports on how the disbursements of all the resources have been used,' he insisted.
The Assembly had also demanded that the Executive introduce a plan to reactivate the economy, which the Government submitted on Thursday the 14th and has not yet been discussed.
A Question of Limits
'We have not moved a single comma,' said Conan Castro, legal secretary of the presidency, in defense of the decree. Castro, who was in charge of announcing the measure on behalf of Bukele, defended the decision, arguing that the Executive is trying to give 'legal certainty to citizens' and to maintain without variation the provisions that have operated in recent weeks and that are included in Legislative Decree 593, which was approved on 14 March and extended by the Assembly on April 16.
That literalness is part of the problem. President Bukele tried on Saturday night to justify his decree via Twitter, publishing the declaration of a State of Emergency made in 2009 by President Mauricio Funes (2009-2014) in reaction to Hurricane Ida. But unlike that executive decree, Legislative Decree 593 not only makes a declaration of national emergency and includes measures to be executed by the Government, but, among other things, temporarily annuls the Procurement and Contracting Law (Lacap) to facilitate the Executive to make emergency purchases and transfers of public funds directly to providers of medical supplies, in order to face the coronavirus pandemic.
By trying to extend 593 without the Assembly’s endorsement, the Executive is giving itself the power to continue to avoid the controls the general laws establish for the use of public funds for another month. The decree also bestows upon the Executive the authorization to not comply with the Access to Public Information Law .
Consulted on Saturday night, the ex-magistrate of the Constitutional Chamber, Rodolfo González, said he considered the decree is void and that, 'for legal security,' the Constitutional Chamber must go to work and officially declare the decree null. Another former magistrate of the Chamber, who asked not to be identified, said that what the Executive announced is 'the interpretation and application of the Constitution and the laws at [Bukele’s] whim.'
Other jurists differed as to whether the Constitutional Chamber should decide ex officio or wait for the complaint of a third party. Efraín Arévalo, a constitutional lawyer, said that the lack of agreements between the Executive and the Legislative cannot be interpreted as “failure to meet”, and affirmed that an executive decree can never extend a legislative decree. He defended, however, that what happened does not justify an ex officio action by the Chamber: 'If someone is interested, they can file the lawsuit,' he said. 'In principle, the Chamber only acts at the request of the party.'
Minutes before the extension of the state of emergency was announced, civil organizations called for respect for the constitutional powers of each state organ. 'Any attempt to annul the powers of the government bodies or illegitimately compel them to come to a resolution... breaks down the constitutional order by ignoring the separation of powers,' declared the NGO Acción Ciudadana. Once the announcement was made, Acción Ciudadana, the Iberoamerican Institute of Constitutional Law, the Center for Legal Studies and Democracy, Transparency and Justice Foundation published a joint statement in which they denounced that the new decree 'exceeds the powers of the Executive body,' and defended its nullity.
In recent weeks, international organizations such as the Office of the United Nations High Commissioner for Human Rights, Amnesty International, and Human Rights Watch have denounced actions taken by the Nayib Bukele government in the fight against covid-19, for being violating Human Rights or violating the independence of powers. Since the health crisis began, Bukele has disregarded Supreme Court resolutions, defended the use of deadly force by public security forces, and confronted various sectors of civil society.
In mid-April, he accused human rights organizations of 'wanting more Salvadorans to die,' for reporting serious cases of police abuse. This week, after the resignation on Monday 11 of five members of the Committee appointed by the Assembly to monitor the public funds used in the response to the emergency, Bukele said that from now on he would not acknowledge Javier Simán as representative of the National Association of Private Enterprise (ANEP).
Three days later, the authorities closed, with the support of the Police and the Army, four factories from different companies that were manufacturing protective supplies for doctors or for fighting the spread of the virus at home, on the grounds that they were not complying with sanitary measures or that they did not have permits. Business unions, including ANEP, consider it part of a campaign of 'harassment, attack, and discredit' launched by the Executive. The Minister of Labor, Rolando Castro, assured that these are not acts of persecution of any business leader.
The Quarantine Continues
During the press conference in which the executive decree was announced, the Health Minister, Fran Alabí, argued that the health system is “days away from collapse” and brought forward a tragic scenario if the Executive is not given the legal tools it’s asking for: 'We will not be able to provide medical care to all patients,' he said. The Minister of the Interior, Mario Durán, also justified the measure due to the health crisis that covid-19 can generate in the country: “It is necessary to take extraordinary measures. We are at the point of collapse,” he said. Both insisted on the need to maintain the mandatory quarantine throughout the country to continue to stop infections.
According to the official data available, the public health system is currently treating 23 patients in critical condition due to the new coronavirus, while 39 are in serious condition. Of the 849 active cases with the disease, the majority (444) are asymptomatic and do not require hospitalization, let alone treatment in an Intensive Care Unit (ICU). In El Salvador, according to the Medical College, there are a total of 125 intensive care beds, including those of the Ministry of Health, Social Security, and private hospitals. The Salvadoran health system also has patients who require care in regular services, such as cancer patients or who have suffered trauma.
It is currently unknown how many of those ICU beds are still available. On May 5, President Bukele publicly said that since the pandemic began, his government had remodeled and expanded the network of public hospitals so that it was ready to attend new cases. When those beds were full, he said, the temporary beds being installed at the International Center for Fairs and Conventions (Cifco), as well as in the new hospital being built in front of Cifco, were going to start to be used. 'El Salvador had 100 ICUs, and when we finish there will be a thousand in total,' he said.
But there are delays in the delivery of the promised ICUs. The Cifco pavilions were supposed to be ready by the end of April, the hospital in mid-June. In addition, in recent days, the Government has not been able to guarantee the necessary medical protective supplies for health personnel, as denounced on the same Saturday, May 16, by members of the nursing staff of the San Rafael Hospital.
The representative of the World Health Organization in El Salvador, Carlos Garzón, has stated that 5% of all coronavirus patients go through intensive care. Minister Alabí said on May 16 that 20% of patients require advanced treatment.
The emergency declaration was not, in any case, necessary to maintain the mandatory confinement. Although the state of emergency decree expired on the night of May 16, this did not imply the end of home quarantine, which is protected by the Regulation for Isolation, Quarantine, Observation and Surveillance by covid-19, approved by the Assembly on May 5 and effective until Tuesday 19. This law establishes that the entire country is subject to sanitary control and empowers the Executive to establish additional circulation measures that it considers necessary to combat the pandemic. Executive decree 24, which established the so-called “special quarantine,” was released on May 10 and runs until Thursday, May 21.
As for the suspension of payments for basic services for three months, it is covered by another legislative decree, the Transitory Law to defer the payment of bills for water, electricity and telecommunications services (telephone, cable and internet), which was approved by the Assembly on March 20.
Neither the suspension of school classes and public events, indicated as key preventive actions by the secretary Conan Castro, need the Emergency Law to be applied, but can be determined by the Ministries of Education and Government under the aforementioned Quarantine Law, which in its first article establishes that 'the entire population must remain in domiciliary security, and may only leave their home or residence in authorized cases.'
The extension of the Quarantine Law is on the agenda to be discussed by the plenary of the Legislative Assembly on Monday, May 18.