El Salvador: Legislature Deepens Democratic Backsliding

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Nayib Bukele, El Salvador’s president, delivers a speech to Congress at the Legislative Assembly building in San Salvador, El Salvador, on Tuesday, June 1, 2021.
© 2021 Camilo Freedman/Bloomberg via Getty Images

(Washington DC) – El Salvador’s legislature has taken drastic steps to undermine judicial independence and limit accountability since President Nayib Bukele’s supporters in the Legislative Assembly took office on May 1, 2021, Human Rights Watch said today. The Assembly has also shelved bills that would have advanced fundamental rights.

President Bukele’s supporters in the Assembly have a two-thirds majority, which they have used to pursue an agenda backed by Bukele that has nearly eliminated checks on his power. They have packed the Supreme Court, replaced the attorney general, and passed laws dismissing hundreds of lower-level judges and prosecutors. They have also shelved bills that would have partly decriminalized abortion and established legal gender recognition for transgender people. The Assembly is set to discuss a government-sponsored overhaul of the constitution.

“In six months, the pro-government legislature has swiftly undermined the country’s independent institutions, allowing President Bukele to concentrate political power in his hands,” said José Miguel Vivanco, Americas director at Human Rights Watch. “There’s every reason to fear that the legislature will now use the upcoming constitutional reform to consolidate Bukele’s power grab.”

On May 1, the 84-seat Assembly became dominated by President Bukele’s party, Nuevas Ideas (New Ideas), which now has 56 lawmakers. The Assembly took immediate steps to undermine the rule of law and rejected bills that would advance the protection of basic rights. For instance:

On May 1, legislators summarily removed and replaced all five judges of the Constitutional Chamber of the Supreme Court and the attorney general. The removals violated international human rights standards that judges and prosecutors should not be removed simply because the government dislikes their decisions.
On May 19, legislators shelved a bill to decriminalize abortion when the life or health of the woman is at risk, in cases of rape, or when the fetus has serious complications incompatible with life outside of the womb. El Salvador remains one of the few countries in the world that still bans abortion completely, in violation of women’s human rights.
On May 14, legislators shelved a bill that would have established a legal gender recognition procedure for transgender people. The lack of such a procedure in El Salvador results in human rights violations against trans people, including infringements on the right to vote, study, and work.
On May 5, legislators passed a law granting “immunity” to government officials and contractors for emergency purchases related to the Covid-19 pandemic. Raúl Melara, the attorney general who was ousted on May 1, had been investigating several government officials, including the finance and health ministers, for corruption related to Covid-19 purchases. On October 20, the Assembly reformed the law to “clarify” that the “immunity” would not cover “corruption,” “bribing,” or any “similar crimes.” The new law has not been published.
On May 18, legislators created a commission to investigate the allocation of public funds granted to nongovernmental organizations, in an apparent effort to intimidate civil society groups. The commission, consisting of pro-government legislators and allies, has not publicly announced any results, but some of its members have accused nongovernmental organizations of being “corrupt,” without presenting evidence.
On June 30, the Assembly appointed five new judges to the Supreme Court, in violation of the process established in the Constitution and the Assembly’s own internal rules. The Assembly has appointed 10 of the 15 Supreme Court judges, although Salvadorean law allows each newly constituted legislative body to appoint only five.
On August 31, lawmakers passed two laws allowing the Supreme Court and the attorney general to dismiss low- and mid-level judges and prosecutors over 60 years of age. One of the laws also expanded the Supreme Court’s authority to transfer judges to new posts, which could easily be used to punish judges who are or are perceived to be independent. The laws run counter to international human rights standards on judicial independence and have been used to oust approximately dozens of judges and prosecutors and to transfer at least eight.
On September 21, the Assembly appointed seven members of Consejo Nacional de la Judicatura (the National Council of the Judiciary), a body charged with proposing candidates to serve on the Supreme Court and lower courts. Some of the questions legislators posed to candidates suggest that their appointments were being assessed on political grounds. They included queries on the candidates’ views about ousting the judges and a September ruling allowing President Bukele to run for re-election.
On October 20, lawmakers passed a law temporarily banning “mass gatherings without social distance or with the participation of people who are not fully vaccinated,” unless these are authorized by the Health Ministry. The legislation, passed a few days after an anti-government demonstration in San Salvador, does not cover any “sporting and cultural events” and appears to be an effort to forbid demonstrations against the Bukele administration. The law has yet to be published. Under international human rights standards on the right of peaceful assembly, any restrictions imposed on public health grounds need to be rational and proportionate, and they cannot be arbitrarily applied or used for political purposes.

On September 3, the Constitutional Chamber of the Supreme Court, which now has a majority of members named by the pro-Bukele legislature, ruled that the constitution allowed for immediate presidential re-election. El Salvador’s Constitution forbids “any individual who served for at least six months in the previous presidential term” from running for president, and had been consistently interpreted to forbid immediate re-election.

In June, Rodolfo Delgado, the attorney general named on May 1, ended a cooperation agreement with the International Commission Against Impunity in El Salvador (CICIES), a body backed by the Organization of American States to fight corruption in the country. The commission had supported investigations into alleged corruption by high-level officials in the Bukele administration, including in connection with Covid-19 purchases.

Delgado also reportedly dismantled a prosecutor’s unit that was investigating alleged negotiations between the government and several gangs. El Faro, an investigative news outlet, reported in September 2020 that government officials have offered jail privileges to imprisoned gang members and to increase employment opportunities for members outside of prison in exchange for the gang’s commitment to lower homicide rates.

In September, Vice President Félix Ulloa made public a draft proposal to revise the constitution, proposing more than 200 changes. These include extending the presidential term from five to six years, and overhauling some institutions such as the Supreme Court’s Constitutional Chamber, the Supreme Electoral Tribunal (a body that oversees elections), and the Court of Accounts (which audits public funds). The proposal would replace these bodies with new ones, change the way their authorities are appointed, and oust the current authorities as soon as the new bodies are established. These changes could be used to increase the government’s control over these institutions.

The proposed draft does little to address chronic human rights problems in El Salvador, including abusive practices in pre-trial detention, widespread violence and impunity, discrimination on the basis of sexual orientation and gender identity, and poor support for women’s rights.

President Bukele is set to introduce the overhaul, which may include changes of his own, in the Assembly. He has already announced changes to eliminate language in Ulloa’s draft that could have opened the door for recognizing same-sex marriage and easing the country’s abortion ban.  

Under El Salvador’s law, the constitutional reform needs to be approved by the current Assembly and ratified by the next one, which will be elected in 2024.

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