Wednesday, July 20, 2016

FMLN takes to the streets after Constitutional Chamber decisions

The Constitutional Chamber of El Salvador’s Supreme Court recently made headlines on this blog and around the world when it vacated the1993 Amnesty Law.  At the same time that the Constitutional Chamber was issuing that decision, the Chamber issued two other decision which are not as headline-grabbing internationally, but have provoked a deep conflict between El Salvador’s executive branch and the governing FMLN and the Chamber.

In the first of the two decisions, the Constitutional Chamber ruled that the approval of $900 million in government bonds by the National Assembly was unconstitutional.   The bonds were intended to provide funding for Plan El Salvador Seguro, the government’s broad-ranging public security measure.

The $900 million in bonding originally failed to pass by one vote of the super majority needed to approve such borrowing.   The measure was then removed from the legislative calendar and sent to archive.   Later that night, the GANA deputy who had abstained from voting for the measure departed.    A back-up deputy (diputado suplente) from GANA took her place.   The bond approval measure was recalled to the floor where the back-up deputy cast his vote for the measure, allowing it to pass by one vote.

The decision by the Constitutional Chamber ruled that the manner in which the two thirds majority was achieved to approve the bonds was unconstitutional.  In doing so, the court went in an unexpected direction.   It threw out the votes of diputados suplentes because those deputies had not been elected in a popular election.    While the primary deputies are subject to individual election by Salvadoran voters, the backup deputies are appointed by party leadership.

This decision is consistent with a theme in Constitutional Chamber decisions.   The Chamber has insisted that the choices of the voters need to be paramount, and so the Chamber ruled in a series of decisions that voters must be able to vote for individual deputies and not just political parties, votes must be allowed for independent candidates, and citizens must be able to vote for candidates from multiple parties if they wish.   In this latest decision, the court invalidates a piece of legislation which was approved using the vote of a back-up deputy who had never been elected by the people.  In order to avoid throwing into question all previous legislation passed with the votes of back-up legislators, the Chamber ruled that its decision would have prospective application only.  

The decision overturns long-standing practice and was criticized by many legislators.   The court's ruling would seem to be in tension with various references to the existence of diputados suplentes found in provisions of El Salvador's constitution.   I am a lawyer, but not one trained in Salvadoran constitutional law, so I can't comment on the correctness of the decision.  

Norman Quijano,  deputy in the National Assembly and former candidate for president from ARENA, complained that without suplentes, legislators would no longer be able to take a sick-day or to have maternity leave or go to the bathroom (rights not enjoyed by the average Salvadoran worker). In a recent article, El Faro noted that legislators were going to need to cut back on their foreign trips paid for with taxpayer money because their back-up deputies could no longer vote in their stead.

In the second decision, the Constitutional Chamber agreed to hear a challenge to a 13% surcharge to electricity bills which the executive branch wanted to impose.   The surcharge was supposedly to help pay for improvements to the power infrastructure including work on a hydro-electric dam.   The court agreed to hear the challenge which alleges that the surcharge was in reality a tax which should have been passed by the legislature and not imposed by executive fiat.   The Chamber entered an injunction prohibiting the collection of the energy surcharge while the appeal is being decided.

The FMLN issued a strongly worded communique calling it highly suspicious that the Constitutional Chamber would suddenly decide to issue these decisions, along with the repeal of the amnesty law, all on the same day.   The FMLN called its militants out to the streets in a rally in San Salvador on Saturday.   According the FMLN, the court had to know this combination of rulings would have a destabilizing effect, and that this was the court’s plan all along:
Con estas actuaciones, los magistrados de la Sala de lo Constitucional se muestran tal como verdaderamente son: operadores políticos de poderosos sectores económicos del país, que jamás aceptaron haber perdido el control del Ejecutivo y del Legislativo desde el año 2009. 
Denunciamos la intencionalidad desestabilizadora de un grupo de jueces, cuyo proceso de elección ha sido y sigue siendo fuertemente cuestionado, y que pretende cada día convertirse en un gobierno paralelo al legítimo y constitucional; un gobierno de los jueces, que se coloca ante la población -que no los eligió- por encima del resto de poderes del Estado, violando así la Constitución. 
With these actions, the magistrates of the Constitutional Chamber show themselves as what they truly are: political operatives of the powerful economic sectors of the country that have never accepted having lost control of the Executive and Legislative branches since the year 2009. 
We denounce the intentionally destabilizing actions of a group of judges, whose process of election has been and continues to be strongly questioned, and that plans each day to convert themselves into a government parallel to the legitimate and constitutional one, a government of the judges, that places itself above the population, that didn’t elect them, above the rest of the powers of the State, violating the constitution.

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