Salvadoran Democracy in a Coma
We have witnessed the end of judicial independence in El Salvador. The Nuevas Ideas legislative bloc — with the complicity of the GANA, PDC, and PCN parties — has illegally approved reforms to the Law of Judicial Careers and the Organic Law of the Attorney General’s Office (Fiscalía General de la República, or FGR), consummating the end of judicial independence and the takeover of the entire Salvadoran state apparatus by the group that controls the executive branch, led by Nayib Bukele. Justice is no longer a civil right, regulated by our laws and enshrined in our Constitution — it is an instrument of power wielded by those who rule the country.
The President now controls all three branches of government, along with the entire judicial system.
Bukele controls the Legislative Assembly, where laws are created and approved; he controls the Attorney General’s Office, which has exclusive power to direct and exercise prosecutorial action, which is to say, to accuse; he controls the police, and thus the ability to carry out arrests; he controls the Supreme Court of Justice; and now, with the reforms to the Law of Judicial Careers, he will control the country’s judges.
For those who the regime or its functionaries consider enemies, there is no longer any escape. Anyone can now be subject to arbitrary prosecution without the right to due process — without the right to a fair defense or a fair trial. There is no more judicial independence; no more constitutional guarantees, no more judicial remedies. There is no longer rule of law. For the friends of the regime, on the other hand, there is no longer any fear that their crimes will be punished.
While the reforms approved on the night of August 31 are extremely serious, they are not surprising. For months, we have seen government ministers and legislative representatives threaten judges for issuing rulings unfavorable to the regime. And when judges have gone against the will of Bukele and his supporters, they are accused of serving the special interests of “benefactors.” Thus, the objective of the reform, approved without debate or due procedure, is no secret.
This was the expected next step in the process of dismantling democracy and concentrating power that the group who governs the country began the day Bukele assumed the presidency — a group with intolerance as their ideology, authoritarianism as their ideal, propaganda as their strategy, and corruption as their only mode of operation. These latest reforms represent yet another step toward realizing their objectives, which are, in short, to put an end to our era of democratic rule.
The new reforms will force judges and prosecutors to retire once they turn 60, or after they complete 30 years of service, thus deposing magistrates such as Jorge Guzmán, who reopened and has presided over the case of the El Mozote massacre, or the judge who denied the release of former president Antonio Saca. This new regulations call for the removal of a third of all judges in the country, whose replacements will now be selected by the Supreme Court of Justice, an institution under the control of Bukele loyalists since May 1. The reform also modifies the structure and categories of the judiciary, opening the door for the Supreme Court to move or substitute judges — in other words, to control the entire judicial apparatus.
Pro-Bukele Assembly deputies argue that their intention is to purge a judicial system plagued by corruption. Certainly, there has been an urgent need to reform and overhaul the judiciary for years. We have demanded it ourselves, in these very pages. But you cannot fight corruption with more corruption, and it’s impossible to expect that the same deputies who have repeatedly violated the Constitution and who, just a few weeks ago, legislated to grant impunity to officials involved in irregular emergency purchases, are today the legitimate champions of the rule of law.
This Assembly is not combating corruption. On the contrary: like many of the laws concocted by the Casa Presidencial and approved without so much as being read by those who claim to raise their hands in the name of the people, the reforms approved on the night of August 31 were born out of corruption.
They are a violation of law, as they do not follow the proper avenues established for the creation of laws, but passed via procedural exemption and without prior debate. And they are also an abuse of the constitution — violating the article of the founding charter that gives exclusive power of legal initiative in this matter to the Supreme Court of Justice, not to the President or to the deputies.
This is not a matter of interpretation, but an issue already resolved in 2016 by the Constitutional Chamber of the Supreme Court in response to a lawsuit filed by, among others, the current legal advisor to the President, Javier Argueta, whose ethical, political and legal principles now run contrary to those he expressed when serving as a member of the National Association of Private Enterprise (ANEP). In that lawsuit, the Chamber ruled the law to be unconstitutional because it was approved “by legal initiative of the deputies of the Legislative Assembly, even though it regulates matters related to the organization of the judicial branch, and the jurisdiction and competence of the courts, and thus violates Art. 133 Ord. 3° C., which exclusively empowers the Supreme Court of Justice to exercise legal initiative in such matters.”
Despite the criteria established by this precedent, the Legislative Assembly has once again violated the law and the constitution at the behest of Bukele, just as they did on May 1. Of course, because there are no longer any checks or balances on the power of those who rule the country, there will be no consequences. And when there is no longer separation of powers, no institutional counterweights, and no mechanism for putting the brakes on the accumulation and arbitrary exercise of power, then there is no longer democracy. This is how serious the consequences are for Salvadoran society and the state. Bukele and his loyalists are ending our democracy, and the only obstacles that remain in their way — the only forms of national democratic expression left — are civil society, non-governmental organizations, and the work of journalism.
We are witnessing, in leaps and bounds, the end of the Republic and its replacement by an undemocratic family clan that uses the state for its own benefit. But for Bukele and his circle to achieve their ends, they must rely on a slew of dishonorable, opportunistic, and corrupt officials and bureaucrats who operate at their behest, as well as on a citizenry blinded by propaganda.
Just days before the bicentennial of our national independence, we are approaching the final days of our democracy. But the loss is only temporary, because this too shall pass.
FI name: September 2021