Wednesday, August 12, 2015

El Salvador's Supreme Court is not undermining democracy or helping a "soft coup"

Several people have shared with me an article by Hilary Goodfriend published by The Nation on August 8 with the provocative title  How El Salvador’s Supreme Court Is Undermining Democracy—With Washington’s Help, and subtitled WikiLeaks has exposed US government collusion with the chamber’s destabilization strategy.   I have to respectfully disagree with the majority of the article.

The US Embassy cable disclosed by WikiLeaks is not news.   El Faro first published the cable in 2011, four years ago.   This is not a brand new revelation.  The cable is dated July 2008, during the Bush administration, and before the Obama administration which has had a more even-handed approach to El Salvador's two political parties.

Here is a link to the cable as published in El Faro, since the Goodfriend article does not link to the cable.  The cable talks about a "Plan B" by ARENA if it lost the 2009 presidential election to Mauricio Funes and the FMLN, which ARENA did.   Goodfriend attempts to link recent decisions by El Salvador's Constitutional Chamber to the meeting in 2008 described in the cable.   Her attempt does not stand up.

In the Plan, ARENA was planning to make sure that it got friendly justices on El Salvador's Supreme Court.  Timing was important according to the cable:

The group believes it is essential their replacements be decided by the current Legislative Assembly (standard practice since the 1992 peace accords) not postponed until the Assembly to be elected in January 2009 is seated May 1 of that year.
But "Plan B" did not come to pass in this way.  Goodfriend overlooks the fact that election of justices to El Salvador's Supreme Court requires a super-majority of 56 votes in the 84 deputy National Assembly.  ARENA could not put new justices on the court by itself.   In fact, the 2009 selection of justices did not occur under the current legislature, but came under the new legislature which commenced after May 1, 2009.   There was a stalemate in the National Assembly that year owing to the FMLN's insistence on its own positions, and ultimately the political parties did not agree to new justices until after the new term of the Supreme Court had started and after the FMLN's Funes had already taken office.   (The same scenario is actually taking place again in 2015 as the political parties are unable to reach a compromise on the new 5 justices to take office this year).

In short, the US Embassy cable from 2008 might have talked about an ARENA plan, but the events from a year later did not play out as ARENA had planned.

Instead, the Constitutional Chamber received four new justices who have been widely praised for their judicial independence and their commitment to the rule of law.   See, for example, the report of the Due Process of Law Foundation and FESPAD, a respected Salvadoran legal organization, which described the work of the Constitutional Chamber as a major improvement in the Salvadoran judicial system and a model for Central America (report at page 9).  See also my years of coverage of the Court on this blog, using the tags "justice system" or "Constitutional crisis."

Goodfriend also overlooks the fact that ARENA deputies actually looked at ways to impeach these new justices in 2010, hardly what you would expect if the justices were chosen as part of ARENA's secret "Plan B."   When Salvador  Sánchez Cerén won the presidency in 2014 by the slimmest of margins, Goodfriend fails to mention that the court rejected ARENA's appeal to have a vote-by-vote recount.

More recently, the Constitutional Chamber ruled that a $900 million bond offering had been approved illegally and was void.   Goodfriend says the Court was trying to block the social and public security programs of the FMLN government, without explaining the court's reasons for its action.   As I described in an earlier post, the Court ruled that the National Assembly had violated specific rules when it substituted a back-up deputy to replace a deputy who had voted against the measure and then voted again to approve.   Similarly, the postponement of swearing in of new deputies which occurred earlier this year, was based on the fact that the election results of those deputies had not yet been certified, and ultimately was not an affront to Salvadoran democracy, but a few week delay to the start of the legislative year.

The article in The Nation also attempts to say that the dramatic rise in homicides this year with the collapse of the former gang truce and the current government's deadly-force policing is a "tactic" of the right wing as part of a "soft coup."    The same claim is made about the recent gang embargo of the bus system.   But as the journalists at El Faro point out, there is no basis to think the gangs have a partisan interest to help either political party.   The idea that gangs are killing each other and their rivals as a way to destabilize an FMLN government lacks any evidence and any logic.

It is true that the government is being widely criticized by many for its handling of the gang violence. This criticism certainly comes from the right and the business community which still want Rudy Giuliani to come riding to the rescue, but the criticism also comes from church leaders and from the country's human rights ombudsman (PDDH).    Criticism of the government is not plotting a coup, or even destabilizing, it is part of the robust free speech which one can observe in El Salvador.  Certainly the FMLN and voices in social media were as vigorous in their critiques of ARENA administrations before 2009.

Goodfriend's article in the Nation, like similar statements being made by the  Sánchez Cerén administration and the FMLN only contributes to the political polarization in the country and does not contribute towards solving the country's woes.

As Héctor Dada Hirezi points out in a recent analysis in El Faro, such partisan blaming, rather than working together to find solutions, is part of El Salvador's problems.  As an editorial on the UCA website stated yesterday, quoting El Salvador's conference of bishops, "it is time to unite efforts, with respect and and a spirit of collaboration", in order to promote peace and progress in the country.


David said...

Thanks for this. What a shameful piece for the Nation to publish. You don't say it, but I will - it's essentially taking everything the FMLN says at face-value, with very poor contextual and historical analysis.

Carlos X said...

Tim, as your fellow lawyer and long-time court-watcher, and I might add as someone who has an interest in the rule of law and a proper role for the court in El Salvador's democratic process, I have to say your analysis is right on. I'll leave it at that.

Stanley DeVoogd said...

Thank you for such this thorough analysis!!

Lawrence M. Ladutke said...

The real threat of a coup comes from the growing power that the FMLN is handing to the military. The genie will not go back into the bottle without a fight.

Remember, Allende promoted Pinochet to the head of the Chilean Armed Forces because he thought he could trust him.

Henry said...

Hi Dears, could you post this article in Spañish for Salvadorian and Spanish talking ? thank you, God Bless America !