Tuesday, August 28, 2012

Looking back at the constitutional crisis


El Salvador's constitutional crisis is officially over.  The National Assembly has re-elected the magistrates to the classes of 2006 and 2012.  The four judges of the constitutional chamber including Belarmino Jaime continue with their roles set out in El Salvador's constitution.  The Supreme Court has a new President, Salomón Padilla.

What are the lessons of this protracted crisis?

A victory for constitutional order.  The resolution of the crisis represented a vindication for the Constitutional Chamber.  The National Assembly and President Funes were forced to re-elect magistrates to the Supreme Court in compliance with the rulings of the Constitutional Chamber.  The politicians were forced to back down from their attempt to transfer Belarmino Jaime out of the Constitutional Chamber, a move the Chamber had ruled violated the constitution.  Thus El Salvador moved a step forward toward having a societal consensus that the Supreme Court, and in particular the Constitutional Chamber, has the last word when it comes to deciding what actions are in compliance with El Salvador's constitution.

Irrelevance of the Central American Court of Justice.  The petition of El Salvador's National Assembly to the Central American Court of Justice in its dispute with the Supreme Court changed nothing.  Although the CACJ first issued a preliminary ruling against the decrees of the Constitutional Chamber and later issued its final decision, these rulings had little impact in El Salavador except, perhaps, to prolong the crisis.  The Constitutional Chamber ruled that the CCSJ did not have jurisdiction over matters of El Salvadoran constitutional law, and the final resolution of the crisis reflects this.

Role of the US.  El Salvadoran commentators, particularly those on the left, pointed to pressure from the US government as forcing this resolution.  Statements out of Washington concerning the possible suspension of US aid to the country if the crisis were not resolved were widely reported in El Salvador and may have prompted President Funes to convene the negotiation sessions which ultimately resolved the crisis.
The US can and should promote good governance and the rule of law in countries where it has a relationship.  But in this case, I wish it had been done with more quiet, behind-the-scenes diplomacy.  The very public statements from US government officials only enhance the appearance of a US  willing to interfere freely in internal El Salvadoran affairs.  It also provides material for that old ARENA propaganda tactic of alleging that an election of a left-wing candidate will result in the cessation of US aid, the elimination of TPS and other dire consequences.

The President's Role.  Credit should be given to President Funes for his role in convening the roundtable discussions of political party leaders which produced the resolution.  While the process was not pretty, the 17 negotiating sessions eventually did produce an end to the crisis.  While Funes had missteps in the crisis, such as his early support for the petition to the Central American Court of Justice, he corrected course when pushing the parties to negotiate on the basis of the rulings of the Constitutional Chamber.


What's next?  Another potential clash between court and legislature is shaping up.   In the early days in the constitutional crisis,  the Constitutional Chamber ruled that Astor Escalante had been elected improperly as . attorney general.   But Sigfrido Reyes, president of the National Assembly, is indicating today that he considers the matter closed and that Escalante remains the valid Attorney General.   Perhaps a return to Funes roundtable is needed?

4 comments:

POLYCARPIO said...

Tim, in addition to items you mentioned, I am intrigued by some of the political fallout. Here are my political consequences. 1. An FMLN more invested in the institutions of the GOES. ARENA has always fancied itself the institution builder and painted the FMLN as anti-system. Well now, for better or worse, the FMLN has played a central role in queuing up and resolving this crisis. 2. A seismic shift in coalitions. This crisis saw two blocks of politically integrated parties: the leftist FMLN teamed up with the rightists CN, PES and GANA parties to go up against the rightwing ARENA party who teamed up with the center-left CD party. Whether this will lead to more bipartisanship and cooperation is left to be seen, but it has definitely stirred up the pot and, as you mention, there are more showdowns looming. 3. The incredible shrinking president. I read Funes' role differently. I think Funes has been sidelined. In this crisis, he was seen as having drawn a line in the sand and quickly been forced by U.S. pressure not only to turn around (which he clearly did not relish), but to get everybody else to follow. In the gang truce, which touches the citizenry's most pressing problem (personal security), Funes has also been watching from the wings as the Church mediates a solution. The president is seen as unable to manage the economy, abandoned by business, and isolated politically. Legally, we have to wonder: 4. Will the constitutional chamber be more meek in its future decisions, or continue to challenge the political branches. And 5. what will come by way of the constitutional reform the parties stated was necessary. Will the Assembly require the court to use a textualist approach in interpreting the constitution? It'll be interesting to see if anyone will dare pick up some of these toxis questions.

POLYCARPIO said...

*toxic questions

Meg said...

Tim, Thank you for excellent coverage of the crisis. I enjoy reading your explanations - clear and concise - and I particularly admire your analysis. Thank you! Meg

Abhishektch said...
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