What’s behind Decree 743?

El Salvador’s crisis of institutionalitysince the hasty approval of Decree 743 can only be understood when viewed through different windows. We examine several perspectives here, but other windows will need to be oponed to clarify the meaning and consequences of this clash of the branches of state.

Elaine Freedman

The leitmotif of the following story is Decree 743, which the rightwing parties passed on June 2 in a clumsily transparent effort to hobble the actions of four new Supreme Court justices who had decided to play by new rules. But those upstarts’ judicial independence is merely one example of the breaking of a number of age-old traditions in El Salvador, which is the bigger story. And to tell that story we have to go back at the very least to 2009, the year the absolute control the oligarchy exercised at its whim in all three branches of State was broken.

The FMLN: An electoral winner

In the legislative elections in January of that year, the Farabundo Martí National Liberation Front (FMLN) won 35 of the 84 seats in the single-house parliament known as the Legislative Assembly, more than it had won in any previous election. While that didn’t give it the qualified majority of 56 votes that would allow it to change special laws such as the Constitution, or even a simple majority of 43 votes over the combined rightwing parties, it was a significant advance.

It was later augmented by the break-up of the Salvadoran Right’s legislative unity. The Nationalist Republican Alliance (ARENA) won 32 seats in those elections, but over the next two years 13 of their occupants migrated to the nascent “rightwing option” called Great Alliance for National Unity, whose acronym, GANA, means “win” in Spanish..

Two months after that sea change in the legislative body, the March 15 presidential elections dealt the Salvadoran Right the worst political reversal in its electoral history. The FMLN, a party defined in its statutes as “democratic, revolutionary and socialist,” won. Although President Funes doesn’t fully represent those principles, he clearly broke with the palace tradition of unconditionally backing the Salvadoran oligarchs. Following these two consecutive electoral defeats, the straw that broke the camel’s back was the election of new Supreme Court justices only a month after Carlos Mauricio Funes took office.

New justices in the Supreme Court

The 1992 Peace Accords defined some democratization mechanisms for the Supreme Court, one of which was the creation of a National Judiciary Council (CNJ) as the first-level authority to select candidates for the tri-annual election of five new justices. As the Court is made up of fifteen justices, electing five every three years could alter the internal correlation of forces, which has always been not only favourable but loyal to the oligarchy. This remained true even when it led the Court to clash with the US counterinsurgency policy executed by President Duarte during the war of the eighties. In that period, the oligarchy’s economic interests had to be sacrificed more than once on the altar of a greater interest: smashing the FMLN as a political-military force. In those cases the Supreme Court tended to echo the most conservative current, which had the least understanding of these sacrifices.

The mechanism for electing justices is that the CNJ holds elections in the lawyer’s guild to create a short list of possible candidates, from which the Legislative Assembly then chooses the five. On this most recent occasion, in an unprecedented turn of events, ARENA declared itself dissatisfied with the list presented by the CNJ. The man who had been vice minister of tourism under the ARENA government of Elias Antonio Saca, himself an aspirant, filed suit to halt the election process. The sitting Court at the time ruled in his favour, paralyzing the election for three months.

After the impasse was resolved, the five justices were elected in July 2009. Four of them—Belarmino Jaime, Florentín Meléndez, Sidney Blanco and Rodolfo González—were chosen for the Constitutional Bench, That bench rules on legislative and executive actions that could be deemed unconstitutional and is thus considered the judicial branch’s most important bench. The fifth new justice—María Luz Regalado—filled a vacancy in the Civil Bench.

At the time, Eliseo Ortiz, president of the Institute of Juridical Studies of El Salvador, characterized Belarmino Jaime, who would later become the Supreme Court president, as “a man of ARENA and the bank owners.” His assessment was based on the fact that Jaime had previously worked as the legal expert for Banco Cuscatlán when its majority stockholder was former President Alfredo Cristiani, who had just become president of COENA, ARENA’s top leadership body.

“The fantastic four” begin to act

The actions of the four new Constitutional Bench members have been unprecedented in Supreme Court history and have belied the prediction that the were in ARENA’s pocket. Their fifth colleague, Nelson Castaneda, has made some of their decisions unanimous, but has opposed others. Castaneda was elected to the Supreme Court in 2003 and has voted in favour of decisions such as exonerating former President Francisco Flores, his wife and members of his Cabinet for signs of “irregularities” in their capital worth declarations. And at the request of the Banco Agrícola, Banco Salvadoreño and Banco Cuscatlán, the Supreme Court’s Probity Section, responsible for such investigations, was dissolved in 2005.

When the four new justices took up their posts, there was a huge judicial backlog, including 700 charges against judges that had been shelved. They soon were removing people from leadership posts who were linked to nepotism, squandering of funds and corruption; pushing through an investigation into 32 job posts alleged to have been sold; and promoting austerity measures. All this triggered unease among justices from other benches. Next they clashed with the executive branch by prohibiting the transfer of funds from ministries to the President’s “contingency spending” account, thus eliminating with the swipe of a pen not only the infamous “secret entry” but also budget flexibility. Following that they obliged the Legislative Assembly, very much against its will, to modify the Electoral Law so independent candidates could run for office and candidate photographs would replace party flags on the ballots. They also cancelled the legal status of two traditional rightwing parties—the National Conciliation Party (PCN) and the Christian Democratic Party (PDC)—for having received less than the requisite 3% of the votes in the 2004 presidential election and bumped their magistrates off the Supreme Electoral Tribunal.

These rulings earned them the nickname “the fantastic four” by former FMLN leader Salvador Samayoa, later an official of the Francisco Flores government. Cables revealed by Wikileaks show that Samayoa travelled to Spain in December 2008 to advocate in favour of excluding Alfredo Cristiana from the list of those charged with the 1989 murder of six Jesuits in a case currently being litigated in that country.

The Right responds with Decree 743

On June 2 of this year all the rightwing parties (ARENA, PDC, PCN and GANA) in the Assembly joined forces to fast-track a reform to the Judicial Organization Law. Known by the decree’s number (743), it was written exclusively for the “fantastic four”: all Constitutional Bench rulings would now have to be unanimous, not agreed to by a qualified majority as has been been the case previously.

If anyone doubted that Decree 743 was specifically meant to hobble “the four,” the proof was its transitory nature: it applied only to the Constitutional Bench and would expire on July 31, 2012. Paradoxically, just ten weeks earlier those same parties voted to “free” the Court’s Dispute Bench from the unanimous vote requisite in a decree stating that “unanimity is a measure that delays processes, contributes little to the quality of resolutions and above all hinders people from obtaining speedy justice.”

Only the FMLN legislative representatives didn’t vote in favor of Decree 743, which President Funes sanctioned and sent to El Diario Oficial for publication the same day. In fact, the President had even reserved space for its immediate publication, thus sparking suspicion that some under-the-table deal had been made.

A chorus of anti-decree voices

The reactions and responses to the decree were as speedy as its approval had been.... and as unexpected The National Private Enterprise Association (ANEP) was the first to speak out, calling the decree “a true blow to Salvadoran democracy.” The fact that the economic Right was coming out against the political Right was the first sign that something politically different was going on.

Soon different groupings “spontaneously” appeared, all calling themselves “civil society.” The Movement for Dignity, Movement for the Defense of the Rule of Law and Indignant of El Salvador demonstrated against the decree in the streets, on Facebook pages and in the mass media. The notable thing about these movements was the obvious predominance of rightwing organizations such as ANEP, the Salvadoran Foundation for Economic and Social Development (FUSADES), lawyers’ guilds with little credibility and bourgeois and middle class youth.

Soon recognized human rights defense organizations, such as the Foundation of Studies for the Application of Law (FESPAD) and the Association for the Search for Disappeared Children joined the chorus of rejection, but they were the minority and their voices were lost among those of the “perfumed.” This second wave of protestors reaffirmed the support they had been voicing for the four Constitutional Bench justices since the controversy against them began. They stated that the four “have the support of El Salvador’s honest population, which is seeking prompt and full justice.”

Accusations against
Funes and the FMLN

The loudest voices in the self-styled civil society acidly accused President Funes as if he had authored the decree, while unconditionally defending the separation of the three branches of State with no analysis of the power relations between them and the economic power groups. The rightwing media took advantage of the occasion to discredit the Funes government, again without going after the rightwing parties that had actually approved the decree.

Some even accused the FMLN of having voted for it, despite the voting record clearly showing the opposite. They based their obviously ill-willed accusation on the fact that the FMLN representatives on the Legislative Assembly’s board had signed 743 so it could leave the Assembly. But signing all approved legislation is a duty of the board members, whether or not they agree with it. The FMLN published a communiqué reaffirming that it had not voted for the decree and calling for a dialogue among the heads of the different branches of State.

Cristiani tries to wiggle out
and only gets in deeper

Six days after the decree’s approval, Cristiani, acknowledging the opposition of the Chamber of Commerce and ANEP, business associations to which he and other COENA members belong, admitted it was wrong to have approved the decree and that they hadn’t correctly judged the consequences. With a mea culpa obviously intended to side with the “civil society” he is part of as a member of the business associations, he came out in defense of the country’s institutionality and governance. He explained that the legislators’ haste was motivated by fear that the Constitutional Bench would repeal the Amnesty Law, which he defined as the “cornerstone of our democracy.” Throwing still more fuel on the fire, he said he was no longer worried; he was “certain” the Bench wouldn’t declare that law unconstitutional and in fact would “defend it.”

These words opened another Pandora’s Box. His highlighting of the extremes to which ARENA would be willing to go to avoid reopening the debate about the Amnesty Law leaves many ARENA members in a weak position. Their actions and declarations reminded the population of what it already knows: ARENA shelters many war criminals who rightly fear that annulling the Amnesty Law would open the doors to sentencing the party’s founders, both living and dead.

The Jesuit case points to ARENA

It’s worth mentioning that Decree 743 was approved in the context of another important event for justice in the country and another Achilles Heel for ARENA. Four days before its issuing and over 13,000 kilometers away, Judge Eloy Velasco of the National Court of Spain released a bill of indictment naming 20 members of the Salvadoran military suspected of having participated in the massacre of six Jesuit priests and two of their employees in 1989. Velasco also issued an international arrest warrant for the men, who include former Air Force Chief Juan Rafael Bustillo and three generals—former Defense Minister Rafael Humberto Larios, former Deputy Defense Minister Juan Orlando Zepeda. All must stand trial in Madrid. Once the warrant reaches the Salvadoran Foreign Affairs Ministry they must be arrested. At that point, the 15 Supreme Court justices must decide whether or not to authorize the extradition of the 20 men.

In May 2010, when the National Court of Spain requested a report from El Salvador’s Supreme Court about the case, the latter rejected the request citing the Amnesty Law. This is obviously a sensitive moment for the ARENA leadership: it’s rumored that the accused officers are threatening to reveal information that could compromise others unless their security is safeguarded.

Cristiani’s words generated more concern about the relationship between ARENA and members of the Supreme Court. Who else could have ensured it was “certain” that the Amnesty Law wouldn’t be declared unconstitutional? ARENA legislator Mario Valiente went even further, stating he had received guarantees that the Free Trade Agreement with the United States wouldn’t be declared unconstitutional either. Justice Belarmino Jaime promptly and forcefully declared that had not met with former President Cristiani to discuss “that issue,” a comment that suggested they might indeed have met to discuss other matters.

Did Funes collaborate in the decree?

The visceral attacks against President Funes for his participation in the institutionalization of Decree 743 provided abundant grist for the Right’s mill. Although he neither wrote the decree nor pushed it through, his collaboration was undeniable. Leftist militants also participated in the campaign to label Funes a traitor, consistent with the old practice of throwing all one’s stones at one’s “own” for errors committed, leaving the main enemy unscathed and unpunished.

How are we to understand President Funes’ action? “The sanction does not tie down Court processes,” he said in his defense; “nor does it violate the Constitution; on the contrary it reinforces democracy.” This explanation was insufficient to explain his action and did little to defend against his opponent’s charges that he is “authoritarian.” Rather than explain anything, it served to shift his decision from the arena of political action to the purely subjective sphere.

Funes’ reasons

Three elements help understand Funes’ action, although it’s hard to say which carries more weight.

1. No amnesty annulment. The first is to recall that during his presidential campaign Funes insisted he would not promote annulment of the Amnesty Law and repeated endlessly that there’s no reason to reopen old wounds. It thus wouldn’t be strange for him to capitulate to the Right’s demands on this issue. FMLN Legislator Norma Guevara clarified
it further: “I want to say honestly that we’ve never contemplated it in either our legislative or executive government program because we know that such a commitment requires a far better correlation of forces than we have today. That situation might change someday, but at this moment we’re not strong enough.”

If this factor weighed in Funes’ decision, the leftist forces disparaging him as a “traitor” have no basis for doing so, because he never promised anything different.

2. To save the budget. The second element, with even greater underpinnings, is the fact that four days after the decree, the Constitutional Bench accepted a charge of unconstitutionality against the 2011 national budget, currently being executed. In August of last year, the Constitutional Bench had declared it unconstitutional to transfer funds among ministries without legislative authorization. As a result, the President must ask the Assembly each week for authorization to transfer funds.

Four rulings for budget transfers to the ministers were approved in the last plenary session. Even so, the contingency expenses category of the 2011 budget, passed with the votes of all legislative benches except ARENA’s, authorizes
“the Council of Ministers to effect resource transfers among budgetary units of ‘Contingency Spending Financing’ allocated in the budgets of each Primary Organization Unit to cover urgent and undeferrable needs that arise during the budget execution in the social, economic and administrative management; and public security and national defense areas not covered by the budget, reporting to the Legislative Assembly within 30 days.” During the parliamentary budget debate, ARENA used the unconstitutionality argument to justify not voting in favor, although it was obvious that the underlying reason was to block government administration.

Were the Constitutional Bench to rule in favor of the plaintiffs, it could leave the budget null and void, paralyzing all government work. Avoiding any possibility of such a “technical coup” against the executive branch would more than explain President Funes’ rapid sanction of Decree 743.

3. Threats. Finally, the above two points must be seen in the light of the systematic threats by different members of the ARENA leadership. Following the coup d’état in Honduras, Jorge Velado, ARENA’s vice president of ideology, was very explicit: “If the President of El Salvador, Mauricio Funes, acts like Zelaya, what happened in Honduras could be repeated here.” Funes is no longer continuing the national tradition of unconditional obedience to the business leaders, but he often pleases them, whether out of agreement or fear of these threats.

ARENA’s move against the FMLN

The FMLN was firm in not voting for Decree 743, consistent with positions its legislative representatives had taken publicly at other moments regarding the Constitutional Bench and the four new justices. Nonetheless, once the decree was approved, its commitment appeared to dissipate. Medardo González, the party’s secretary general and legislative bench chief, simply appealed to the four to stop rebelling and declare the decree inapplicable.

Within days, however, Christiani, in his famous “rectification” speech, urged the FMLN to join ARENA in repealing the decree. ARENA’s unexpected maneuver of tossing the ball into the FMLN’s court, ignoring the three other rightwing parties that had participated in its approval, is what prompted the protestors, the media and of course those parties themselves to lay the blame for the decree on the FMLN.

With that, the FMLN explained its position on the decree. Speaking for his party, FMLN legislator Roberto Lorenzana said: “We’re not voting. They got themselves into this mess with their partners, their allies in that vote; let them get themselves out. It was the PCN, GANA and PDC that sided with ARENA in that. Why are they asking for our vote?”

The electoral context
is another explanation

While insisting it wouldn’t participate in repealing the decree, the FMLN did urge a dialogue among the parties in conflict. Its leaders made clear that the events surrounding 743 can’t be understood outside the context of the correlation of forces between the Right and the Left regarding the next electoral contest, in 2012. Although this caused commotion in “civil society,” which labeled the FMLN “just one more party that’s more concerned about its own interests than the country’s interests,” the party’s logic deserves to be understood.

At this time in history, the electoral road has provided the most gains in advancing grassroots projects in Latin America, and El Salvador is no exception. Although the progress hasn’t occurred at the speed hoped for, it is unquestionably happening.

To understand the FMLN’s position, we need to recognize the concept of “the country’s interests” as “class interests in the country.” Read that way, it’s obvious that ARENA and the FMLN are defending conflicting interests, and that electoral accumulation is what will allow the FMLN to slowly but increasingly consolidate a project consistent with the interests of the poorer classes.

The FMLN’s electoral logic

The FMLN has often found itself in contradiction with “the fantastic four,” given their different logic. They have ruled consistent with their duty to interpret the Constitution and do justice in cases rigged by the administrators of justice who came before them. But in cases such as canceling the legal status of the PCN and PDC for failing to pull 3% of the vote in the 2004 elections, the FMLN would obviously rather compete against a divided Right than one huddled under the ARENA banner; it is therefore happy to have as many rightwing parties as have ever existed or ever will exist.

With respect to independent candidacies, they have contributed little to democracy in most countries where they exist. And as for replacing party flags with candidates’ faces on the ballots, the FMLN has no reason to favor a decision that gets rid of its emblem now, when it is better positioned than ever and the Right’s banners are at their lowest point.

The FMLN’s recently obtained majority in the Supreme Electoral Tribunal is the key to undermining the electoral frauds the Right has historically directed. Obviously Court rulings that put these achievements at risk are frowned upon. Asking the FMLN not to take an interest in electoral issues in a pre-election year, or to act “apolitically” when it’s the only leftist political force that represents any real option of a presence in the branches of government where decisions determining the course of the country are made is like asking for pears from an elm tree.

“Civil society’s” anti-party war

It is precisely at this crossroads where the real meaning of the self-proclaimed “civil society” can be best visualized. The concept of civil society used by the new groups that claim to be part of it operates on the logic that the fundamental division in the country isn’t between rich and poor but between the “political class” and “civil organizations.”

Their discourse gives the impression that these organizations are the genuine apolitical representation of Salvadorans’ interests—and all Salvadorans equally at that. This obviously denies the reality that many of their “leaders”—ANEP being a clear case—are also members of the “political class.”

What’s more, it’s rooted in the idea that the country’s institutionality is equally favorable to all and thus must be defended at all cost. It assumes that the real threat to democracy is lack of independence among the three branches of State, the cornerstone of institutionality. But this ignores the fact that the genuine dependence of these bodies isn’t found in their relationship to each other but in the relationship each one has with the dominant class of the country and the world to the detriment of those who have always been on the bottom. When they say all parties are “the same” and are just seeking “their own interests,” they’re effectively delegitimizing people’s right to have their own political instrument. They accept as natural that the bourgeoisie has always had its own party and the advantage this gives it, just as they accept as normal that “there have always been rich and poor and therefore there always will be.”

It would be ingenuous not to acknowledge that, by keeping themselves in public posts in a system that guarantees officials certain perks and privileges, political leaders can consolidate personal interests that conflict with the interests of the sector of society they represent. But it would be even more ingenuous to believe that this conflict can be countered by depriving people of the possibility of organizing politically or that organizations or individuals that don’t join or sympathize with political parties are purer. One might well ask why this “anti-party” discourse is becoming so intense at the very moment the FMLN is making more progress. Does that discourse have a special dedication, as Decree 743 does?

No ending to this story yet

This story is still missing several chapters. After 743’s approval, the Constitutional Bench did indeed rule it “inapplicable” and continued making important decisions by majority, such as allowing any citizen to appeal to the Court to annul the election of a candidate who in that person’s view won inappropriately.

The Legislative Assembly called this decision out of order, and the PDC bench asked that the justices be dismissed. When the Bench sent its latest ruling to El Diario Oficial for publication with only four signatures, the director of that institution refused to publish it. Right now everyone’s pushing for dialogue and a “prompt resolution of the problem,” but no one is resolving it. Surely the last shoe hasn’t dropped yet.

What does it have to do with us?

While the political parties, the President, the Supreme Court magistrates, the self-styled civil society and the mass media are all immersed in this conflict as if were the most important one, the grassroots majorities are off to the side, consumed with other worries and other missions.

The workers of the Lido Bread Plant are still on a strike that has seen their union’s secretary general arrested. The brutal murders of minors are still the order of the day and go unpunished. The peasants associated with the Maroma Cooperative are applauding President Funes for a pilot plan for them to plant native maize seed on their land and thus break their dependence on agribusinesses. They are also enthused by the State Agricultural Development Bank’s promises of credits at 4% interest, technical assistance, agricultural insurance against natural disasters and government guaranteed purchase of production for distribution at prices accessible to consumers, thus avoiding speculators.

The majority of the Salvadoran population is removed from, ignorant of and not interested in this whole “institutionality crisis.” When an FMLN representative attended a recent community association assembly in the northern department of Chalatenango to share his views about the current situation, one peasant member from a women’s group asked, “And this decree they passed, what does it have to do with us?”

Elaine Freedman is a grassroots educator and the envío correspondent in El Salvador.

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