Bukele's Legislative Assembly Ousts Supreme Court Magistrates and Attorney General
In its first day in office, the new Legislative Assembly controlled by Nayib Bukele's party set aside constitutionally-mandated procedures in removing five magistrates from the Supreme Court’s Constitutional Chamber, as well as the attorney general, and replacing them with party loyalists. The magistrates removed yesterday by the Assembly issued a resolution declaring the move unconstitutional, but Bukele mocked them on social media even as police officers escorted the newly-elected judges to their offices. Domestic experts and the political opposition have called the moves a technical coup d’etat.
In its first plenary session on Saturday, May 1, El Salvador’s recently-elected Legislative Assembly, controlled by the government-aligned party, Nuevas Ideas, set aside constitutional procedure in removing five magistrates of the Supreme Court’s Constitutional Chamber and substituting them with judges loyal to President Nayib Bukele. Minutes later, the Assembly removed Attorney General Raúl Melara and replaced him with former lead prosecutor for organized crime, Rodolfo Delgado. Both decisions — approved with 64 of 84 Assembly votes thanks to the additional support of GANA, the PCN, and PDC — are efforts to remove the last institutional checks on the president’s power since he took office in 2019, and whose party notched a blistering victory, one vote short of a supermajority, this February 28.
In the case of the Constitutional Court, the deputies — led by Ernesto Castro and Suecy Callejas, both of them members of Bukele’s cabinet prior to the elections — argued that the five magistrates and four alternates issued rulings in the past year that violated the constitution, in the sense that they hampered aspects of the work of the Ministry of Health during the Covid-19 pandemic that still lingers in El Salvador. Formally, the magistrates were accused of “converting the Constitutional Chamber into a superpower” above the other powers of the state by issuing “arbitrary and discriminatory rulings” and violating “the separation of powers of the organs of the state, and concretely, those of the Executive.”
The names of the Constitutional Chamber’s new magistrates were kept secret, even from the Nuevas Ideas legislative bloc, until deputy Christian Guevara, the bloc’s new leader, read them aloud during the plenary. Minutes later, and without evaluating the list, the Bukelista deputies elected the new magistrates: Luis Javier Suárez Magaña, Bukele’s chief of the Public Information Access Unit (IAIP); Héctor Naúm García, former prosecutor and professor at the Technological University; José Ángel Pérez Chacón, advisor to the presidency who defended the Army’s refusal to release El Mozote files in court; Elsy Dueñas Lovo, a magistrate from the Administrative Disputes Chamber who has opposed the release of Supreme Court documents on the personal finances of public officials; and Óscar López Jerez, a magistrate from the Civil Chamber, who has little experience in constitutional law and has been accused of negotiating favors with Luis Martínez, the former attorney general currently in prison for various crimes including embezzlement. López Jerez was named president of the Supreme Court, a position selected from among the five magistrates of the Constitutional Chamber.
Per article 185 of the Constitution, the list of candidates for magistrate of the Supreme Court should come from the National Council on the Judiciary, which would have submitted 30 names for consideration: half from an open call for applications that it would oversee and the other half from nominations of lawyers’ associations across civil society. During the first plenary, though, Nuevas Ideas Christian Guevara read a list of five names without offering any arguments or background information on the nominees. Then, the new president of the Assembly, Ernesto Castro, gave a five-minute recess before the names were summarily approved, one by one, each with 64 votes.
Various legal experts have called what happened on May 1 a technical coup d’etat. Amnesty International, the Center for Justice and International Law (CEJIL), and the Due Process of Law Foundation are among the organizations who have condemned the removal of the magistrates. Diego García Sayán, U.N. Special Rapporteur on the Independence of Judges and Lawyers, condemned the “steps taken by the seat of power to dismantle and weaken the judicial independence of the magistrates and dismiss the members of the Constitutional Chamber.” Luis Almagro, the secretary general of the Organization of American States who called critics of Bukele after the military occupation of the Legislative Assembly on February 9, 2020 “consistently hysterical,” noted that he “rejects the dismissal” of the magistrates and attorney general “and the actions of the Executive that guided these decisions.”
That same night, just half an hour later, the Constitutional Chamber issued a resolution declaring the legislature’s move unconstitutional. “This removal proceeding has not followed the necessary procedural guarantees,” the resolution reads. According to the magistrates, the illegal removal proceedings were a form of coercion from the executive power. Throughout 2020, Bukele disobeyed various Chamber resolutions that declared a dozen executive orders and other policy moves unconstitutional and oversteps of executive power.
Bukele launched a public confrontation with the Chamber on those grounds, accusing the magistrates on Twitter of wishing “the deaths of hundreds of thousands of Salvadorans.” In a national broadcast, he said that if he were a dictator, “I would have had them all shot.” “You save a thousand lives in exchange for five,” he said on August 11, 2020. Shortly after the Chamber issued its resolution on May 1, Bukele mocked them on social media: “The removed magistrates writing a resolution is like Norman Quijano [former president of the Assembly] wanting to come here and legislate. Ah, no, I just remembered he fled to Honduras.” Quijano fled the country just hours after his Assembly term expired and before the attorney general could issue an arrest warrant for alleged negotiations with gangs. The replacement attorney general, Raúl Melara, was also removed from office on Saturday night.
Melara was removed on the grounds of “clear proof of partisan affiliation” with the Nationalist Republican Alliance (Arena). Melara, whose relationship with Bukele has oscillated between closeness and confrontation, opened an investigation in November into corruption within the Ministries of Health and the Treasury, for the handling of pandemic-related funds and purchases. Melara was also investigating Nayib Bukele’s secret negotiations with MS-13, which El Faro revealed in September 2020.
The new attorney general, Rodolfo Delgado, was the senior prosecutor for organized crime under six attorney generals, most of them tied to Arena and its splinter party, GANA: Belisario Artiga (1999-2005); Félix Garried Safie (2006-2009); Romeo Barahona (2009-2012); Ástor Escalante (cinco meses de 2009); and part of the term of Luis Martínez, who ended his term in 2015 and is now in prison for corruption.
The removal of the Constitutional Chamber magistrates, without room for formal debate in the plenary or for the magistrates to defend themselves, received condemnations the same night by international organizations and the U.S. government. Julie Chung, acting assistant secretary of state for western hemisphere affairs, issued a statement last night: “A strong U.S.-El Salvador relationship will depend on the Government of El Salvador supporting the separation of powers and upholding democratic norms.” The next morning, Secretary of State Antony Blinken revealed that he had just gotten off the phone with Bukele and expressed “serious concerns” over the moves against the Constitutional Chamber and attorney general.
Multiple outspoken Democrats in the U.S. House of Representatives also quickly condemned the removals, including Rep. Jim McGovern (MA), Rep. Albio Sires (NJ), and Rep. Norma Torres (CA). Biden’s senior director for the Western Hemisphere on the National Security Council, Juan S. González, also weighed in: “That’s not how things are done,” he wrote, in response to a tweet from José Miguel Vivanco, executive director of Human Rights Watch, reading: “Bukele breaks away from the rule of law and looks to concentrate power in his own hands.”
The German Minister of State, Niels Annen, also spoke out on Twitter: “Very concerned by the situation in El Salvador. I urgently call on the government and congress to respect the constitution and guarantee the division of powers.” The Costa Rican Ministry of Foreign Affairs issued a statement that Costa Rica "is closely following the developments in El Salvador, and expresses concern for the events of recent hours” The chancellor wrote on Sunday: “We call for respect for democratic institutions and the rule of law in El Salvador, through broad and transparent dialogue.”
Bukele was quick to respond to his international critics on the night of the removal proceedings: “To our friends in the international community: We want to work with you, do business, travel, get to know each other, and help out when we can. Our doors are open wider than ever,” he tweeted just after midnight. “But with all due respect: We’re cleaning out our house… and that is none of your business.”
The Cyan Steamroller
On May 1, what should have been a customary plenary session to mark the swearing-in of the new Legislative Assembly following the February 28 elections became a showcase for the enormous power that the Bukele administration and his party have attained. The night before, the official social media pages and website of the Assembly mysteriously changed logos before the new deputies had even taken office.
In the morning, the 20 opposition deputies — 14 from Arena, four from the FMLN, one from Vamos and the last from Nuestro Tiempo — were shut out from preparatory meetings as the day’s agenda was set and the membership of the new executive committee was negotiated behind their backs. The executive committee administers the resources of the Assembly and must approve every plenary agenda. Next, the overwhelming majority of Bukelista deputies disregarded parliamentary rules as the opposition’s microphones were turned off and their requests for the floor denied. For a good portion of the session, their desks didn’t display their names on the small LED screens; some screens showed only the name of the deputy’s party, whereas other deputies’ names were written on paper and stuck to the front of their desk. The opposition sat in the back.
Anabel Belloso, deputy from the FMLN, called the day’s events a coup d’etat on Twitter: "We oppose the coup d’etat promoted by the Nuevas Ideas deputies against the magistrates of the Constitutional Chamber. Their initiative is antidemocratic, offers no previously-established legal reasoning, denies the right to a hearing and defense, and does not justify the expedited process.” The head of Arena’s legislative bloc, René Portillo Cuadra, concurred: “What you’re doing tonight, with the majority that the people gave you, is a coup d’etat,” he said, when the Assembly president finally granted the floor for comment to a member of the opposition just before 7:30pm. “We haven’t concurred with our votes because we have a great responsibility. We need to transform our country, but not by trampling the constitution or the fundamental rights of others,” he said.
There was no known agenda for the first plenary. One deputy, a senior official from the executive branch, and two people who maintain constant communication with influential deputies in Nuevas Ideas told El Faro that, one day before the swearing-in of the new Assembly, they had no idea what the day’s agenda would be. “We still don’t know anything,” said one of them, less than 18 hours before the ceremony, adding that even the deputies from Nuevas Ideas had no idea who would be on the Assembly’s executive committee nor who would lead the party’s legislative bloc. Christian Guevara, a communications strategist who worked for the Arena governments came under scrutiny for accepting dozens of government contracts under the Bukele administration, has assumed the role.
In the president’s innermost circle, according to two senior officials, there was debate as to how far the new Assembly should go in its first day: “On Thursday I learned that there was debate over whether to replace the attorney general in one fell swoop,” one of the sources told El Faro. Other sources claim that there was debate over whether to also remove the members of the Supreme Electoral Tribunal, the Court of Accounts, and the Public Defender (PGR) — moves which didn’t take place.
At 9:35pm, an officer from the National Civil Police (PNC) ordered the detail guarding the door to the Supreme Court to block the entry of the newly-removed magistrates to their offices, an order which the officer receiving the order said he could not enforce. Right before 11, though, and despite the Constitutional Chamber’s decree of unconstitutionality, the newly-elected magistrates entered the offices escorted by the police. Then, a half-hour past midnight, the PNC mounted an operation in official and unmarked vehicles to seize control of the Attorney General’s Office and the country's new top prosecutor stepped foot in his office.
*Additional reporting from Gabriela Cáceres and Roman Gressier
FI name: May 2021