El Salvador / Historical Memory

Reelection in El Salvador Rhymes with Dictatorship

El Faro
El Faro

Monday, September 11, 2023
Nelson Rauda Zablah

Leer en español

Dressed in a suit and tie, Major Roberto d’Aubuisson counted out loud, pencil in hand, the representatives’ votes. It was September 28, 1983, and the Constituent Assembly was meeting in the Blue Room, the same one in use in El Salvador today, but with more wooden furniture and fewer legislative seats: At the time, the Assembly had 60 representatives, 24 fewer than it has now. That day, the representatives were approving Title III of the Constitution: “The State, its form of government and political system.”

The representatives argued about almost everything, both form and content. Not even the articles with seemingly obvious content were approved quickly. For example, they debated the precise text of Article 83 —which states that El Salvador is a sovereign state— for a day and a half before they decided to table it and move on to other articles. They also postponed finalizing Article 84, which establishes the country’s territorial limits. Article 85 involved a long debate over the meaning of the term “pluralist” in reference to El Salvador’s political system. Discussion of Article 86 began with a semantic argument over whether to use the word “powers” or “organs” to refer to the state’s three branches of government and then expanded to include a discussion of European constitutionalist authors.

There was an entire theoretical background debate surrounding Article 87 —the same one the Bukele government invoked decades later, before it controlled the Legislative Assembly— which addresses the right to insurrection. Initially, the representatives connected that article to the French Revolution’s right to resistance, and they added a phrase to protect the Constitution that they were drafting: in case of insurrection, the provision would only serve to remove the officials who had broken the constitutional order; it would not imply automatic constitutional reform.

That was the tone in which the constitution was drafted. The six parties in the legislature thoroughly debated each article and then each party had the right to respond. That’s why what happened with Article 88 was so striking: When the time came to discuss the provision, no one asked to speak. Nobody objected. The representatives voted for it unanimously. That article states: “Alternating the exercise of the Presidency of the Republic is indispensable for maintaining the established form of government and political system. The violation of this norm demands insurrection.”

The current ruling party refers to the 1983 text as “d’Aubuisson’s Constitution,” a pejorative allusion to the ARENA (Nationalist Republican Alliance) party founder —and conspirator in the assassination of Archbishop Óscar Romero— who presided over the Constituent Assembly. But that perspective brushes over the five months of work and debate of a Constituent Assembly made up of 60 representatives, only 19 of whom belonged to ARENA. It also disregards the fact that the document has developed over decades of Salvadoran constitutionalism in which, at least on paper, democracy is the country’s non-negotiable form of government.

Roberto d
Roberto d'Aubuisson presides over a plenary session of the 1983 Constituent Assembly, which debated the approval of El Salvador’s Political Constitution in the Legislative Assembly’s Blue Room. Photo from El Faro Archive.

El Salvador’s prohibition of presidential reelection is a constitutional tradition informed by concrete experiences and painful lessons from the country’s two centuries of independence. The last time a constitution was drafted, the representatives included six key articles that shielded the country from that possibility. Thirty-eight years later, the interpretation of Bukele’s handpicked Constitutional Chamber is using semantics to argue that a president can be in office for 10 years: Since Nayib Bukele is president from 2019 to 2024, he was not president in the preceding period, 2014-2019. Therefore, the constitutional prohibition does not apply to him; he can run in the election and, if he wins, govern between 2024 and 2029. After that, if he seeks a third term, all the Constitution’s prohibitions would apply to him.

The illegally selected Chamber’s interpellation is an attempt to change El Salvador’s constitutional history and flies in the face of the lessons that led to the prohibition in the first place.

El Faro reviewed hundreds of pages of the sessions debating and approving the 1983 draft constitution, hours of recorded sessions, and contemporary newspapers; it also consulted constitutional experts. It is clear that the Assembly reached an undeniable consensus when it approved Article 88 and five other key articles prohibiting the reelection of the president.

Article 75 of the Constitution discusses the loss of citizenship rights as a punishment for those who promote the president’s reelection. It was approved on September 20, 1983, with 59 votes.

The article prohibiting the person who has served as president from continuing in office “one more day” (formerly 150, now article 154) was approved without comment on the same day, with 54 votes.

The article describing the Assembly’s functions (Article 131 of the post-1992 Constitution, Article 127 of the original 1983 version) has 38 subparagraphs; subparagraph 16 states that the Assembly must “compulsorily disavow the President of the Republic or the person who takes his place when he continues in the exercise of his office, once his constitutional term is over.” The article was approved with 57 votes, without comment, on the afternoon of November 8, 1983.

The current Article 152 (it was Article 148 in the 1983 version) prohibits the candidacy of anyone who has served as President of the Republic for more than six months, consecutively or not, during the immediately preceding period. The article was approved with 55 votes on November 11, 1983.

Finally, Article 248 places a padlock on a previously closed door. Addressing constitutional reform, it says that “the articles of this Constitution referring to the form and system of government, to the Republic’s territory and to alternation in the exercise of the Presidency of the Republic cannot be reformed under any circumstance.” Like Article 88, this clause was not debated; it was approved on November 24, 1983, with 35 votes.

That degree of consensus is significant for a country that was bleeding to death amid a civil war as these representatives were discussing and celebrating a new Constitution. Those articles were untouchable when post-war constitutional reforms were made. The political class and country that was so divided during 12 years of conflict clearly agreed on one thing: Presidential reelection is not a good idea.

Under Fire

The Constituent Assembly was elected in March 1982. To understand the political tension of that time, political scientist Álvaro Artiga situates the parties in terms of their position toward the regime and the system of government. The FMLN (Farabundo Martí National Liberation Front) was both anti-regime and anti-system; it did not yet participate in the political party system. The most conservative pro-regime and pro-system parties were the newly formed ARENA (September 1981) and the PCN, the party of military dictatorships. The Christian Democratic Party (PDC) served as the opposition (anti-regime but pro-system).

Of the 60 representatives, the PDC won 24, demonstrating the strength that would win Napoleón Duarte the presidency two years later (although Duarte had already been head of state, in the Third Revolutionary Government Junta in 1980). Between 1982 and 1984, all parties had ministers as part of a “national unity” government. In the 1982 elections, Major Roberto d’Aubuisson’s ARENA won 19 votes and secured majority control through an alliance with the PCN, which won 14 seats. The PCN soon split in the Constituent Assembly: nine of its representatives formed the Salvadoran Authentic Institutional Party (PAISA) but maintained their alignment with ARENA on most issues. Minority parties held the other three seats: one from the Partido Popular Salvadoreño (PPS; Salvadoran Popular Party), and two from Acción Democrática (AD; Democratic Action).

In terms of gender, the division was much more unequal. There were only seven female constituent representatives, with five more as alternates. This imbalance became more evident when the Constitution Drafting Committee was formed: at first, it consisted of 13 men, although eight other representatives joined later, including perhaps the two most influential women in that Assembly: María Julia Castillo, of the PCN, who was the first president of the Legislative Assembly; and Gloria Salguero Gross, co-founder of ARENA, who served as vice-president of the Assembly years later.

The Drafting Committee began its work with three agreements in place: it would base its work on the 1962 Constitution, summon different social and trade organizations to give their opinions, and ask for the opinions of different institutions. According to the report that the Drafting Committee presented in a plenary session, “in addition, the Constitutions of all Latin American countries, Spain and other European countries were consulted, as well as compendiums and treaties on Constitutional Law and other legal and philosophical disciplines.”

Reaching agreements in the context of the civil war had posed a challenge since the election itself, which the media described as occurring “under fire.” At the time, the FMLN was a guerrilla group and threatened to boycott the process: according to a summary of political events in the magazine Proceso —a weekly periodical published by Central American University (UCA)— voting could not take place in 21 municipalities, and there were attacks on the capitals of Morazán, Chalatenango, and Usulután.

Representatives vote to approve an article of the Constitution during a plenary session in the 1983 Constituent Assembly. Photo from El Faro Archive.
Representatives vote to approve an article of the Constitution during a plenary session in the 1983 Constituent Assembly. Photo from El Faro Archive.

The country was going through a period that the Truth Commission later described as the war’s bloodiest years. Meanwhile, the constituent representatives met in the Blue Room, where the Assembly moved in 1975. They debated at length. Technically, the Constitution was approved in a solemn session that adjourned at the end of each plenary session from July 22 to December 20, 1983. The sessions lasted about five or six hours, Monday through Friday. But even the representatives could not escape the country’s violent reality. The plenary session denounced the disappearance of the PDC alternate representative Oseas Perla; it similarly decried the attack on ARENA representative Prudencio Palma Duque, who survived a car crash that resulted from three shots fired at his vehicle, but was left incapacitated for five weeks.

That Assembly’s ability to debate and reach agreements —even as it was under fire— contrasts sharply with the Bicentennial Assembly’s behavior. According to newspaper La Prensa Grafica, in its first month and a half of work the current Assembly passed 65 laws, 55 of which were submitted by President Bukele. Because there is no need to reach agreements with the opposition, debates are irrelevant, and the Legislative Assembly reduces its own role to merely rubber-stamping the president’s agenda. Consequential matters such as the dismissal of Constitutional Chamber judges and the Attorney General; the removal of a third of the country’s judges based on their age; and the adoption of a new currency, bitcoin, have been decided in a matter of hours, and even done through the dispensation of proceedings, an expedited method for approving measures.

Debating the Constitution of 1983 was much more complex. After reading each of the sections and articles, lawyer Ricardo González Camacho, the Drafting Committee’s rapporteur, was responsible for reciting the part of the report about each section and emphasizing the points that seemed important to him. González Camacho spoke slowly and looked like a caricature of Groucho Marx, with his prominent nose, thick mustache and big glasses, plus a receding hairline that he sought to conceal by combing his gelled hair to the right. San Salvador elected González Camacho as one of the two constituent representatives from the defunct Acción Democrática party, and several constitutionalists consider him to be one of the fathers of the current Constitution. In his explanations, he commonly quoted authors such as Raymond Carré de Malberg, Maurice Duberger or Karl Loewenstein —classics in university curricula on constitutional law— from memory, or he translated French expressions on the spot when he found them in their texts.

“On the disqualification of a person who has served as President of the Republic,” González Camacho said, “the bill clarifies that the time in office has exceeded six months, regardless of whether they were consecutive, during the immediately preceding period or within the final six months prior to the date on which the presidential term began.” This statement was intended to allow a vice president or appointee to participate in an election, provided that he or she had only served as president for “very short periods or at a time that cannot affect the results of the electoral process.”

Also disqualified from running for the President of the Republic were the president of the Legislative Assembly and the president of the Supreme Court of Justice “during the year prior to the day the presidential term begins.” The reason? The president of the Assembly “exercises great influence on the political order” and can “take advantage of this situation to tilt the electoral process in his favor.” In 1970s El Salvador, there were major episodes of pro-PCN electoral fraud, especially in 1972 and 1977. The president of the Court’s ineligibility to run for President of the Republic seemed more obvious: The “position is absolutely incompatible with any partisan political activity.”

Presidential candidacies were prohibited, too, for military personnel “who had been active during the three years prior to the start of the presidential term.” That provision was less obvious and a bit unrealistic. Multiple historians cite the Ministry of Defense as the real source of power in El Salvador during the 1980s; at that time, the president was a banker named Álvaro Magaña, who brokered an agreement between the Armed Forces, the political parties and the U.S. government, which preferred him over an extremist like d’Aubuisson.

Several debates took place before the approval process for this section began. For example, Genaro Pastore, the Salvadoran Popular Party’s only representative, objected to the minimum age requirement of 30 to become president. He argued that “a position of such responsibility, such as being a Head of State, must have experience, must have a wealth of knowledge of statesmanship, either because he has acquired it or by intuition.”

The Nuevas Ideas legislative bloc celebrates the appointment of Ernesto Castro, President Nayib Bukele’s friend and associate, as the new president of the Legislative Assembly
The Nuevas Ideas legislative bloc celebrates the appointment of Ernesto Castro, President Nayib Bukele’s friend and associate, as the new president of the Legislative Assembly's board of directors in the May 1, 2021, session. Photo Carlos Barrera

In fact, El Salvador had already had a young president: the caudillo General Tomás Regalado was 37 years old when he assumed the presidency in 1898, inaugurating the political 20th century. Regalado participated in a coup d’état and reorganized power blocs. A year after the coup, in 1899, he was legitimized in uncontested elections, but despite his popularity, he was not reelected: reelection had been prohibited in 1886, and Regalado respected that ban.

Congressman Pastore omitted that part of the story. “No political party has chosen a person, a man who is thirty years old, as a presidential candidate,” Pastore said. “We have analyzed many administrations in Latin America, Europe, and even the United States. We have looked for presidential candidates who are 30 years old; we got closer with Kennedy, who was 40 or 45 years old when he announced his candidacy,' Pastore said. Kennedy was 43 when he took office, and Pastore wanted the minimum age requirement to be 35. Pastore had made the same point in the debate about a previous article, which addressed the age requirement to become a congressman, 25 years old. González Camacho had retorted that it was absurd: at age 30, Napoleon was emperor of France and at Pastore’s age, 54, he was already dead, a comment that made Pastore an object of ridicule and elicited laughter in the plenary session.

There were more heated subjects of debate, such as the limit on rural private property. The subject riled up both the Right and the more liberal opposition. Three years before the Constituent Assembly convened, the state had implemented a policy to try to alleviate the deep inequality at the root of the armed conflict: land ownership. There were 238 properties larger than 500 hectares in the country. The state expropriated 25 percent of the large agricultural estates and sold them to peasant cooperatives at reasonable prices. This policy, known as agrarian reform, was intended to have more phases. According to Major d’Aubuisson, continuing to implement it would “put an end to production [and] to the country’s economy, and then we will lose the war and fall into the hands of communism.” For the PDC, the goal was “to remove the peasants from the economic and cultural marginalization to which they have been subjected.” The debate over articles 104 and 105 stalled between September and November and had to be postponed to progress to other items. Finally, an agreement was reached on the text and property limit: no person or company may own more than 245 hectares of rural land.

But the five-year presidential term limits and the proscription of reelection were never in doubt. In fact, for the constituent representatives, the loss of citizenship rights for anyone who proposed a president’s reelection did not even merit discussion.

“It is quite evident that the Constitution can defend itself”

Some constitutional traditions are so obvious that states take them for granted and do not even include them in their legal documents. For example, the U.S. Constitution does not recognize the right to life. “It is so obvious that the State has to respect it that it does not even include it,” explains Rodolfo González, a former constitutional magistrate and the president of the El Salvador section of the Ibero-American Institute of Constitutional Law (IIDC). González argues that prohibiting presidential reelection is one such tradition in Salvadoran constitutionalism. “That is very important when interpreting it. [That provision] cannot be changed through a court decision, but [only] in a Constituent Assembly,” González says of the ruling handed down by Bukele’s handpicked Chamber, which opens the door for his reelection.

The IICD conducted a study on this topic based on the 1841 Constitution, which was the second in Salvadoran history but El Salvador’s first as an independent state. That Constitution limited the presidential term to two years and specified that the president “may not be reelected until the same period [of time] has elapsed.” The same article was repeated almost verbatim in the 1871 Constitution. A year later, the presidential term was changed from two to four years, but the prohibition on reelection remained.

In 1886, three additional prohibitions were incorporated into the constitution. The outgoing president could not be elected vice president; the constitutional ban on reelection-related reforms was introduced into the document; and a punishment —the loss of citizenship rights— was added for persons who promoted a president’s reelection.

The notion of presidential reelection harkens back to nineteenth-century El Salvador. Doroteo Vasconcelos was reelected in 1859, using a constitutional amendment to do so. Later, Francisco Dueñas, Santiago González, and Rafael Zaldívar were also reelected during the convulsive period between 1864 and 1883. González and Zaldívar wrote two constitutions each in their efforts to be reelected. Curiously, Bukele, who has already revealed the same intention, also tasked his vice president, Felix Ulloa, with writing a new constitution.

Legislative Assembly President Ernesto Castro swears Óscar López Jerez (right) in as chief magistrate of the Supreme Court of Justice on May 1, 2021. López Jerez presides over the Constitutional Chamber that ruled in favor of presidential reelection. Photo courtesy of Legislative Assembly
Legislative Assembly President Ernesto Castro swears Óscar López Jerez (right) in as chief magistrate of the Supreme Court of Justice on May 1, 2021. López Jerez presides over the Constitutional Chamber that ruled in favor of presidential reelection. Photo courtesy of Legislative Assembly

Twentieth-century politics continued alternation in the exercise of the Presidency of the Republic with one exception. General Maximiliano Hernández Martínez, who committed genocide against the Indigenous population, was the last president in Salvadoran history to be reelected. In other words, a dictator was the last president to be reelected in El Salvador. But reelection was a social problem even for the dictator. His intention to run for reelection was one of the factors that contributed to his downfall, which occurred following a social uprising in 1944. Hernández Martínez’s 1939 Constitution also prohibited a president’s reelection, but the dictator exempted himself. That Constitution also made the president’s relatives —including siblings, cousins, children, and relatives of the president’s spouse— ineligible to run for office.

Rodolfo González explains that “each society’s positive and negative experiences are reflected in their new constitutions.” For instance, the Salvadoran constitution’s ban on the president’s relatives running for election was based on the fact that power had rotated between the Meléndez-Quiñones-Romero families for two decades, from 1913 to 1931. The issue of presidential reelection is similar. “In Latin America, Central America, and El Salvador, we have lived through a two-centuries-long onslaught of caudillismo [strong-man authoritarianism] and personalism in the exercise of power; that [history] is reflected in these provisions,” González notes.

In the 1950 Constitution, that prohibition was maintained by eliminating or adding some of these variations. 1962 confirmed the importance of anti-reelectionist history. The leader of a January 1961 coup d’état supported convening a Constituent Assembly to overcome the 1950 Constitution’s prohibition on his reelection to the presidency because he had occupied the Executive office as a result of the coup. Although El Salvador did not have free elections and bloody repression was taking place, the national commitment to alternation in the exercise of the presidency remained, at least on paper.

The 1983 Constitution, the current one, is a product of all these elements. “The articles referring to the presidential term cannot be reformed; if the guy wants to be reelected, the Assembly can repudiate him, the people can take to the streets to exercise their right of insurrection if he wants to persist; citizens who encourage the president to remain in power lose their political rights,” Gonzalez summarizes. “It is quite clear that the Constitution can defend itself,” he says.

“Without democracy, we will continue to have a state of tyrants”

Having a well-paid Assembly that uses a vast amount of public resources to function could also be a Salvadoran tradition. In that sense, criticism of the legislature has been the same for some 40 years.

“Our country’s patriotic fathers will give us a Constitution made of gold,” an article in La Prensa Gráfica declared, sarcastically criticizing the constituent representatives’ salaries. In 1983, the minimum wage was between 200 and 300 colones per month. According to that article, Major Roberto d’Aubuisson earned 10,000 colones per month, the other eight representatives on the board each took home 8,000, and the other 51 representatives received 5,000.

The paper’s criticism, reviewed in issue 126 (October 9, 1983) of Proceso magazine, also pointed out that the “millions in salaries do not reflect the Assembly’s total cost, since it does not take into account all the other personnel who work to serve the representatives, the directors’ gasoline consumption, the depreciation of vehicles, furniture, stationery, etc., as well as the consumption of coffee and ‘other drinks’ during the extended recesses.”

But even that Constituent Assembly considered democracy non-negotiable, at least discursively.

“The Committee conceives of El Salvador as a democratic Republic and has endeavored to prepare a draft of a fundamental law in which, by virtue of balance in the exercise of power, the democratic system is a genuine experience and not merely a semantic statement,” the Constitution Drafting Committee’s report says.

At that time, reelection was regarded as anathema to democracy and associated with communism, the political enemy represented by the guerrillas in 1980s El Salvador. But that perception was also encouraged from outside the country by the image of nearby Sandinista Nicaragua, continued one-party rule in Cuba, and the general context of the Cold War between Washington and Moscow. Decades later, in the mid-2000s, the right wing asserted that the FMLN would take power and stay there, rejecting the idea of alternation in the exercise of the presidency. Now, ironically, a government that considers itself to be “post-ideological” —but practices neoliberalism— has set the stage for breaking with El Salvador’s traditional alternation of power.

The constituent representatives even went so far as to assert the right and duty of insurrection. “It is not just any transgression, but one that infringes on the form of government, that is, on the republican form, on the democratic and representative pluralist political system. It is a serious violation of the rights enshrined in the Constitution, that is, fundamental guarantees and rights, the disrespect of which makes citizens’ lives unbearable,” Representative González Camacho read from the report.

Luis Nelson Segovia, one of the two Acción Democrática representatives, recalled that this extreme position of “legalizing insurrection” emerged in the September 28, 1983, session as a response to dictatorship. “The right to insurrection mentions the famous right of resistance to oppression, which was one of the French Revolution’s fundamental principles,” Segovia said.

But even in those extreme cases, the constituents favored the separation of powers. The idea that “the state shall never be the patrimony of any family or person” —the opening lines of El Salvador’s first Constitution (1824)— persists. The Drafting Committee report put it this way: “Even in these exceptional circumstances, the independence of the different organs, in terms of their powers and authority, must be maintained in formulating the political will. A single person, board, or council may not simultaneously have the powers that the Constitution confers to the Legislative, Executive and Judicial Organs.”

The Constituent Assembly session board, which approved the Constitution in sessions between July 22 and December 20, 1983. Photo from El Faro Archive.
The Constituent Assembly session board, which approved the Constitution in sessions between July 22 and December 20, 1983. Photo from El Faro Archive.

The notion of imposing limits on power was communicated throughout the debates. In the September 22, 1983, session, PAISA party spokesman Carlos Crespín said that it was necessary to limit the president not only legally, but also morally and ethically. “If a ruler displayed nepotism [by installing] one relative in Migration, another in ANTEL [the National Administration of Telecommunications], another in the Mayor’s Office, [and] another in the Governor’s Office — that is not unconstitutional, but it is immoral,' Crespín observed. In 2021, the Bicentennial year, President Bukele placed three brothers as his main advisors’ another brother in INDES, the National Institute of Sports of El Salvador; and another relative as Secretary of Commerce. In his government, nepotism is so prevalent that the Minister of Education’s son is the Minister of Governance. The prescient Congressman Crespín added that, “in being governed, people do not always know how to distinguish their positive leaders from their negative leaders. I also believe that what I say is logical, that we must limit (sovereignty) to what is honest, just, and appropriate, which does not lead us to any statism or any other kind of dictatorship in any way.”

The struggle for democracy reflected the spirit of the times. That was not just true of the legislators’ participation and electoral turnout; it was also reflected by inviting the representatives of civil society groups to offer their opinions. On July 27, 1983, Felipe Rovira Mixco attended the Assembly representing the National Industrial Electronics Cooperative. “The changes that are being advised are born of the hope that we are not creating presidentialist caciquismo [political fiefdom] again,” said Rovira. “Without being able to reelect the President and Vice President, alternation seeks a representative and participatory democracy (...). The cost of democracy is the guarantee of freedom; otherwise we will continue to have a state with tyrants who are the puppets of the privileged groups or castes who have subjugated us since Independence from Spain,” Rovira added. “Let us achieve our true Independence today.” 200 years later, that tension between democracy and authoritarianism has endured in El Salvador.

*Translated by Jessica Kirstein

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