Checks and balances thrown out in El Salvador

On their first day in the Legislative Assembly, the new majority in El Salvador's Legislative Assembly from the Nuevas Ideas party of president Nayib Bukele voted to fire all five magistrates of the Constitutional Chamber of the Supreme Judicial Court, to immediately elect new magistrates from a pre-determined list without debate or discussion, and to remove the country's Attorney General Raul Melara.  In taking these steps, Nayib Bukele's party has sought to remove all possible checks and balances on the powers of the president.

Normally, the first day of a new Legislative Assembly is a day of pomp and circumstance and photo-taking as new members of the Legislative Assembly are sworn in.  Last night, however, the new Assembly took actions which many in El Salvador are describing as an "autogolpe" or "self-coup" and as an attack on the separation of powers and the independence of the judiciary.

In the new Assembly which commenced on May 1, deputies from Nayib Bukele's Nuevas Ideas party hold 55 of the 84 seats and allies from GANA, PCN and PDC hold another 9 seats.

The pro-Bukele deputies voted to suspend normal processes of the Assembly and voted to sack the magistrates of the Constitutional Chamber with a vote of 64-19.  Immediately afterwards they again bypassed the normal process for electing magistrates and approved a slate of five new magistrates who were immediately sworn into office. The Legislative Assembly then moved on to the Attorney General of El Salvador, Raul Melara, who was also removed from office on a 64-19 vote, and a replacement Attorney General immediately elected. Thus in a matter of a few hours last night, Bukele placed allies in control of two other independent branches of government -- the court and the attorney general's office.

For the president's supporters these actions were the logical consequence of the overwhelming victory of Nuevas Ideas in the February 28 legislative elections and the continued high approval ratings of Bukele in public opinion polls.  In their view, if the Chamber or the Attorney General were standing in the way of Bukele and what he wants to accomplish, then they needed to be removed.   

Bukele allies assert that deposing all magistrates of Constitutional Chamber is a power of Assembly under Art. 186 of the Salvadoran constitution . That section allows removal of magistrates by 2/3 vote for specific cause, previously established by law.   Legal experts were quick to argue that disagreement with a prior court ruling is not "specific cause" under this section.

Bukele and the Constitutional Chamber had clashed frequently over his use of emergency decrees to limit constitutional rights during the course of the pandemic.   Nuevas Ideas members in the Assembly cited the Chamber's rulings on pandemic measures as a reason why they were taking action to fire the judges.

At 9:37 the Constitutional Chamber issued a decision ruling that the attempt to depose its members was unconstitutional.  The Court found that the action taken by the Legislative Assembly violated principles of judicial independence and the role which the Constitutional Chamber plays under El Salvador's constitution.  The removal of the magistrates according to the Court violated principles of due process and constitutional order which rendered the Assembly's decree null and void.

Bukele and Nuevas Ideas scoffed at the ruling of the Chamber, however, declaring that a ruling, by magistrates who had already been removed from office, was meaningless.

 In 2012, El Salvador had another crisis involving the Constitutional Chamber and competing sets of magistrates asserted to be legitimate. The Legislative Assembly had sought to put in place a new set of magistrates after the Constitutional Chamber had issued a series of rulings showing its independence from political influence and other branches of government.  In 2012, the Chamber prevailed, but it seems doubtful that history will repeat itself with the power Bukele has already consolidated.

As the events of the night continued, police were seen stationed at the entrances to the Supreme Judicial Court where the newly elected judges entered.  The new Attorney General showed up at the offices of his predecessor with the chief of police to have a meeting to which only the government media outlets were permitted access.  

The UCA issued a statement of condemnation last night:

The José Simeón Cañas Central American University condemns the disrespect for the law by the new Legislative Assembly in its action to dismiss and replace the magistrates of the Constitutional Chamber, as it dynamites the independence of the powers of the State, characteristic of a democracy . The actions of the pro-government deputies confirm the fear that the popular support expressed at the polls would be used to concentrate power in the Executive.

Opponents of yesterday's events have called for a protest Sunday afternoon at 2:00 at the Monument to the Constitution in San Salvador.

The Organization of American States General Secretary's office issued a press release stating its rejection of the actions of the Legislative Assembly in removing the magistrates of the Chamber and the Attorney General.  

The UN Special Rapporteur on the Independence of Judges and Lawyers also condemned the move by the Assembly. 

Officials in Washington, D.C. expressed their serious concern over the sacking of the Constitutional Chamber:

In a tweet, Jose Vivanco of Human Rights Watch warned " I want Bukele to be clear: We will make every effort so that this assault on democracy affects his relationship with the US government, the World Bank, the IMF and the IDB. Today in Washington the rule of law is a necessary condition."

But Tiziano Breda of the International Crisis Group made the point that Bukele and allies knew well that their actions would receive condemnation from Washington and the international community, and proceeded anyways, to send the message "We don't care."


Don said…
The over world fears self determination more than anything.