Wednesday, July 18, 2012

Some erroneous views of the constitutional crisis

There had been little attention to El Salvador's constitutional crisis in the English language press before this week.   If you wanted to know what was happening, you didn't have many sources other than this blog.  There was an editorial by Mary O'Grady in the Wall Street Journal, and on Sunday, July 15,  the Washington Post wrote a very similar editorial about El Salvador's constitutional crisis -- and they simply got it wrong.   The Post editorial stated:

[I]f the FMLN succeeds in subordinating the court it will move to consolidate control over other institutions, including those governing elections. That was the model followed by Mr. Chavez, Mr. Ortega and the leaders of Ecuador and Bolivia.
The Post and O'Grady suggest that this is a struggle between the Latin American left as personified by Hugo Chavez and by Salvadoran Vice Presdient Salvador Sanchez Ceren and the forces of democracy and the rule of law.  But Salvadoran electoral democracy is not at risk from the left -- Sanchez Ceren has little chance of winning in 2014, and the electoral process has been fair and open for elections in the last dozen years.

The risk to democracy in El Salvador has been the dominance of political party machines on both the left and the right.    That dominance was challenged by the rulings of the Constitutional Chamber which lessened the power of party officials by allowing voters to choose individual candidates rather than having to vote by party.  Party power was diminished by a Constitutional Chamber ruling that independent candidates had to be allowed on the ballot.   It was the Constitutional Chamber that ruled that the PCN party had to go out of existence when it failed to obtain the required  vote totals in prior elections.   Those rulings did not make the Constitutional Chamber and its president Belarmino Jaime any friends in the National Assembly.

So the Washington Post framed the issue the wrong way.  And its decision to do that had consequences.   after the Post editorial was published, two US Senators, Republican Marco Rubio and Democrat Robert Menendez issued a press release, which threatened to cut off aid if the crisis is not resolved:
We urge the Obama Administration to engage the highest levels of the Salvadoran government to gain a quick resolution to the serious constitutional crisis.  The Administration must be clear in its engagement that if concrete measures to restore the constitutional and democratic order in El Salvador are not soon implemented, the United States will have no choice but to consider a variety of bilateral actions that would reflect this lack of a democratic framework.  These options would include immediately suspending any further consideration of a second Millennium Challenge Corporation compact, review and denial of U.S. visas for individuals participating in or facilitating the continuation of the existing unconstitutional order, and the immediate termination of any U.S. technical assistance through said individuals or institutions under the Partnership for Growth.
This statement has been widely reported in El Salvador, and prompted El Salvador's Foreign Minister Hugo Martinez to tell reporters that while he respected the Senators, their views were not the views of the Obama administration, the House or the Senate.

Although the Washington Post and Senators Rubio and Menendez missed the boat, it is equally wrong to call the current constitutional crisis "a right-wing attempt to destabilize the government."   The support for the Constitutional Chamber is widespread throughout civil society and organizations dedicated to judicial independence and good governance.   Their demands that the rulings of the Constitutional Chamber be followed are not motivated by partisan politics, but are an attempt to see El Salvador subject to a government of laws rather than the whims of polticians.

That being said, it does appear that ARENA may cynically view prolonging the crisis as more in its interest than reaching a compromise.   A clear compromise would have the National Assembly bow to the court's ruling that it must conduct the elections of the 2006 and 2012 magistrates again, but then simply vote to re-elect the very same magistrates.   ARENA, however, refuses to go along with a vote re-electing the 2012 magistrates.

If you want to go deeper into these issues, a good source of information is the Due Process of Law Foundation, founded by former members of the UN Truth Commission for El Salvador, and whose mission is to support strong and independent national judicial systems.   The DPLF has put together this day-by-day summary of the events in the constitutional crisis.  You can also read their open letter to the magistrates of the Central American Court of Justice, asking it to reject the National Assembly's petition to invalidate the Constitutional Chamber rulings.



Tim, the common Salvadoran and her traditional defenders, including some unions and political activists, do not necessarily grasp the concept of checks and balances as something that impacts their daily lives, but they do understand and respond to the notion of elite vertical structures of power--and they know who they trust and who they distrust. This is the perceived reality or "Realpolitik" of the average Salvadoran, which explains why few lower class Salvadorans have flocked to the defense of the Constitutional Court and why many of them even distrust this "chamber" ... the very word conjures up some kind of inner sanctum of rarified power. Unfortunately, this crisis will have to resolved by the political classes, by the powerful, as stewards of the reins of the "res public" in El Salvador, and I fear that they may not respond to mere rational persuasion, and that the power of the purse threatened by Rubio and Menendez may be the necessary tool to steer them to do the right thing. Of course, the danger is that this public display of chest thumping will produce exactly the opposite of what was intended--and drive the Salvadoran left into the populist embrace of the Chavistas. Hopefully, the same sobering message is being delivered in discreet diplomatic pouches to Pres. Funes's inner circle.

Tim said...

I agree, but I think we also have to recognize that there is a growing movement within civil society, college educated and Internet-savvy who care deeply about making a responsive, participatory democracy where the rule of law is respected. That movement was responsible for the repeal of Decree 743 last year, something we would not have seen 5 or 10 years ago.


True. That is a good thing.

Alexis said...

Tim, thanks for reporting on the serious misrepresentation in the WSJ and the Post - very concerning.

The suggestion that this situation, in all its complexity, might fit into a right-wing agenda to promote instability in El Salvador, was made by FMLN party leadership back in April. I think it's important to include the FMLN's perspective here, especially since most of the editorials coming out in the US press are clearly meant to demonize the FMLN.

Here's some coverage from April with comments from Roberto Lorenzana:

David said...

"A clear compromise would have the National Assembly bow to the court's ruling that it must conduct the elections of the 2006 and 2012 magistrates again, but then simply vote to re-elect the very same magistrates."

Tim - what's your definition of "compromise"? Ratification of the 2012 magistrates means that the duly elected Legislative Assembly accept the will of the previous assembly. Where's the middle ground? That doesn't seem like the solution to me.

Peter Ormand said...

Thank you for your blog Tim. I've been trying to read up on this issue in the salvadorean press but its a bit beyond my Spanish comprehension.

Seems like the country is trying to solve the issue peacefully and democratically. It's important to remember we're just 20 years past the civil war and El Salvador remains a young democracy.

Shame on Senators Rubio and Menendez for trying to bring a Cuban American response to this issue. Salvadoreans are not Cuban, our county is not Cuba and we want to remain engaged with El Salvador.

Although I was worried at the prospect of an FMLN government back in 2009 none of the doomsday scenarios have come to pass, and it appears that ARENA may very well lead the government again after the next presidential election. The US should support Salvadorean democracy and not attempt to dictate the type of leadership the salvadorean people choose.

Thank you again for your awesome blog.