A Highly Risky Proposal to Reform the Salvadoran Constitution

The Salvadoran President has, unprompted, embarked on a crusade for a constitutional overhaul. The Vice President, after receiving instructions from the President, duly delivered a wide-ranging constitutional reform proposal on 15 September 2021. This proposal was not preceded by a transparent process of public consultation or with any real political dialogue. Alarmingly, the draft overrides fundamental principles of the rule of law and of the democratic system in El Salvador. If passed, it would consolidate executive control, erode the separation of powers, and provide a constitutional gloss to the dismantling of democratic institutions already underway - writes Marjorie Chorro de Trigueros.

The instrumentalization of constitutional reform to accumulate and retain power

The President of the Republic of El Salvador, Nayib Bukele, initiated in September 2020 a constitutional reform project of the 1983 Constitution, even though the Constitution does not grant him such power. The proposed constitutional reform, which is ostensibly to “modernize the Constitution,” was not included in his election platform, nor was it a demand of Salvadoran civil society. This "top-down" initiative comes from a government that, over the last two years, has systematically violated the Constitution, disregarded the separation of powers, and shunned accountability and transparency. The President’s plans have understandably generated great concern among civil society organizations and the international community, who are wary that this project could be used to further undermine the rule of law, dismantle democracy, and embed an authoritarian regime.

On 3 September 2021, these fears were heightened, and not by a constitutional reform, but through a ruling of the Constitutional Chamber of the Supreme Court. The Chamber, in a ruling that contravenes a central and repeated prohibition in El Salvador´s Constitution, authorized a president to be elected for a second, consecutive term. The genesis of this ruling can be traced to 1 May of this year, which was the first session of the new parliament after the February 2021 elections. On this date, the President’s party (the populist Nuevas Ideas) held a supermajority in the Legislative Assembly and, wasting no time, summarily and unconstitutionally removed and replaced the Constitutional Chamber judges and the attorney general. The co-optation of the Supreme Court was extended on 29 June 2021 with a second appointment of new judges loyal to the President. Soon after the Constitutional Chamber purge, in August 2021, the Legislative Assembly approved reforms to the Judicial Career Law that would expel approximately one-third of judges and appellate magistrates by setting an age limit of 60 years and the maximum judicial service term to 30 years, but which does not apply to the (newly appointed) Supreme Court judges.

The reform process, if successful, would not only consolidate power in the executive branch, but also provide legal cover to what is already happening...

The President has co-opted state institutions and is dismantling the separation of powers and democratic governance in the country. Against this backdrop, Salvadoran think tank FUSADES has detailed three risk scenarios regarding the upcoming constitutional reform: i) that the constitutional reform project would be used to concentrate and retain power; ii) that the constitutionally mandated reform procedure would not be respected, and that fraudulent mechanisms would be used to repeal and replace the current Constitution; and iii) that changes would be introduced by rulings and jurisprudence from a co-opted justice system, as has occurred in other countries like Nicaragua, Venezuela and Ecuador, to authorize what the Constitution currently forbids. This last scenario has already become a reality. In this context, the reform process, if successful, would not only consolidate power in the executive branch, but also provide legal cover to what is already happening.

The reform of the Constitution: legitimate process and entrenched clauses

Article 248 of the Salvadoran Constitution determines the process of reforming the Constitution, which happens over the course of two terms of the Legislative Assembly. The seven-step procedure has been articulated in two cases (33-2015 and 7-2012), which interpret Article 248.

1. There must be a formal initiative for constitutional reform from at least ten congresspeople, who present an initial proposal. The President does not have the power to submit a formal initiative (In this case, the President’s executive decree mandates the Vice President to “coordinate the study and proposal of reforms to the constitution” that the President will send to Congress. So, while the formal process will start in Congress, this will be just a mere formality. A case challenging as unconstitutional the President’s initiation of constitutional reform was presented to the Constitutional Chamber in 2020, but was not decided due to procedural issues).
2. Dialogue and public deliberation phase, where the reform agreement must be subject to broad debate in Congress and must represent the political pluralism of society. As a result of this dialogue, the initial proposal could be modified before calling for a vote.
3. The proposal needs to be approved by one-half plus one of possible votes in the Legislative Assembly. The result is a constitutional reform agreement, but the process is not yet concluded. The constitutional reform agreement must pass the ratification process in the next Legislative Assembly to become law.
4. The approval of the constitutional reform agreement must take place before Legislative Assembly elections for the next term, so voters can consider candidates’ opinions on the constitutional reform agreement.
5. The next Legislative Assembly engages in step five, a new dialogue and public deliberation before ratification of the constitutional reform agreement. The constitutional reform agreement cannot be changed at this stage and should be voted on as approved by the previous legislature.
6. The constitutional reform agreement requires at least two-thirds approval by deputies in that second legislative period in order to be ratified.
7. If ratified, the decree is published in the Official Gazette by the Legislative Assembly.

This process has not formally begun for the current constitutional reform proposal but, given the configuration of the Legislative Assembly, the proposal can pass without problem and become a constitutional reform agreement. If the established process is respected, the ratification of such agreement must be decided by the Legislative Assembly elected in 2024.

The prohibition against immediate presidential re-election is so fundamental that Article 88 of the Constitution states, “Violation of this norm makes insurrection an obligation”.

There are clauses that the Constitution declares unamendable (”stone clauses”) because they are considered essential to the configuration of the State. These entrenched clauses, contained in Article 248, are the form and system of government (republican, democratic, and representative), the territory of the Republic, and the prohibition of presidential immediate reelection (alternabilidad). These “stone clauses” are the bedrock of the Salvadoran Constitution, as they were inaugurated precisely to prevent any political group from perpetuating its own power. The prohibition against immediate presidential re-election is so fundamental that Article 88 states, “Violation of this norm makes insurrection an obligation”.

As mentioned above, on 3 September, the Constitutional Chamber of the Supreme Court – stacked with judges unconstitutionally appointed in May by the President’s party – overrode the presidential reelection prohibition. The Constitution is at risk, not only because of a possible reform in an unlevel field, but also because the judicial branch – which would ordinarily restore constitutional order – is not impartial.

The proposed constitutional reforms: main concerns

At the time the President announced his intention to reform the Constitution, his other actions delegitimized his democratic credentials and eroded trustful conditions needed to discuss the reform. On 9 February 2021, he stormed the Legislative Assembly with military force and threatened to dissolve it in order to secure the approval of a loan. Afterward, during the Covid-19 pandemic, more than 2,424 people were illegally detained in “containment centers” for violating quarantine restrictions that were later declared unconstitutional.  

The task of promoting the reform was delegated to the Vice President by means of presidential decree number 295, mandating the Vice President to oversee the study, analysis, discussion and proposal of reforms needed to modernize El Salvador according to the current needs of society. The reasons for delegating this task to the Vice President are unclear, but it could be that at the time of initiation, the Legislative Assembly was not yet controlled by the President’s party, and the principal parties did not support him.

In October 2020, the Vice President, in order to complete the mandate given to him by the President, formed an ad hoc working group composed of himself and four other members, all lawyers, lacking political diversity. There were no clear mechanisms or criteria for the selection or replacement of members who resigned. The ad hoc working group created its own statute outlining its methodology, and established a web page to receive opinions and proposals to reform the Constitution. The working group stated that over 4,000 people participated in this process. However, no submissions were made public, and there is no information on whether or the extent to which these opinions were incorporated in the proposal. The group also invited some guests, such as church representatives and activists, to express their point of view. The invitees were many times officials of the Executive Branch, including the Armed Forces. Some representatives of civil society organizations rejected the offer to participate: they were afraid of legitimating the illegitimate process with their presence, and aware of the potential co-option of their inputs to serve an ulterior political purpose.

The first draft of the reform project was publicly presented on 11 August 2021 and a new version was released on 15 September. The proposal is a major overhaul – in reality a rewrite – of the Constitution, with 216 modifications (out of 274 articles contained in the current Constitution). An analysis of the contents exceeds the scope of this piece, but it is worth noting some proposals may be very popular in some sectors, such as the extension of labor rights. The proposal also contains many worrying aspects. For example, the proposal eliminates a provision that nullified the probative value of statements made by a detained person under duress and criminalized obtaining such statements by force.

Certain amendments ring alarm bells for potential democratic backsliding, for example, extending the presidential term from five to six years.

Certain amendments ring alarm bells for potential democratic backsliding, for example, extending the presidential term from five to six years. The draft proposal further anticipates changes that threaten the independence of academic and legal professionals, and democratic institutions. The draft proposes a profound restructuring of the judiciary, for example, creating a separate committee that would control every administrative and budgetary issue of the entire judicial branch. While the president of the Supreme Court will lead this committee, the other members will be determined by ordinary law, which raises concerns about judicial independence. It would also mandate the creation of a bar association that would choose the candidates from which the Legislative Assembly will appoint the heads of many fundamental institutions, for example, justices of the Supreme Court and some members of the Electoral Authority (thus giving a lot of power to whoever controls this association).

Other proposed reforms would create, currently without regulation or detail in the proposal, mechanisms of direct democracy such as referendums, recall elections, and citizens' bills. The procedure of constitutional reform would also be changed: instead of approval by two successive Legislative Assemblies, constitutional bills would be approved by a majority vote in the Legislative Assembly and ratified by a popular referendum.  

Conclusion

There are no conditions of plurality, legitimacy and trust for dialogue to reform the Salvadoran Constitution, since the project arises from the government that has repeatedly violated the Constitution and has disrespected the democratic and constitutional order. The reform proposal was submitted to the President on 15 September 2021, when El Salvador celebrated 200 years of independence. At the same time, growing public unrest has led to protests by thousands of Salvadorans against the President´s violation of the separation of powers, potential re-election, and acceptance of bitcoin as legal tender, among other issues. This groundswell of opposition has not been seen for many years and could be an important turning point for El Salvador.

The next steps will be the assessment of the proposal by the President, and then, the President will likely deputize his party to introduce the draft to the Legislative Assembly. The published draft is not necessarily what will be approved; in fact, the President has already announced that some progressive rights will be deleted. Added to this worrying announcement, the issues threatening democracy and the rule of law, such as presidential re-election and violation of the separation of powers, have already de facto occurred, so the role of the reform is likely to provide cover for the increasing erosion of democratic governance in El Salvador.

Marjorie Chorro de Trigueros is the Director of the Department of Legal Studies at FUSADES (Fundación Salvadoreña para el Desarrollo Económico y Social).