In less than a week, Salvadoran President Nayib Bukele and his Legislative Assembly have managed to lock in full political power in El Salvador, dismissing sitting Supreme Court justices and de facto naming new ones as well as a new attorney general, while passing legislation that grants immunity to loyal functionaries linked to irregular purchases during the pandemic.
“A blow has been struck against the Republic’s democratic institutions and the Constitution,” said Celia Medrano, a human rights activist and former candidate for secretary of the Inter-American Commission on Human Rights (IACHR). “Democracy has been wounded, the damage done. We saw that danger to democracy with the unequivocal use of the armed forces for political coercion, starting with the military assault on the Legislative Assembly [last year], with no forceful action taken at the time.”
Bukele’s legislators removed the justices and attorney general without legal cause, and in their place named five justices who were not on the list of candidates for the process in place. Moreover, two of the de facto-seated justices are the targets of legal complaints and have direct ties to Bukele’s Nuevas Ideas (New Ideas) party.
Rodolfo Delgado, the attorney general named by Bukele’s deputies, is also linked to the official party. He was the defense attorney for the pretrial hearing of the director of the National Civil Police (PNC) on charges of having participated in the military action against the Legislative Assembly on February 9, 2020. Delgado had served as head of the prosecutor’s office’s Organized Crime Unit in 2013, at which time a former agent of the U.S. Drug Enforcement Agency accused him of having ties to a drug trafficking organization known as the Texis Cartel.
“What they call removal and appointment do not comply with due process as established by the Constitution,” said constitutional scholar and former diplomat Napoleón Campos. “They are in noncompliance with a series of articles in the Constitution, making the appointments illegal. Nor has there been respect for due process in the selection of what they call the new attorney general and justices.”
The dismissed justices were given no hearing, nor were they the subject of any investigation. The legislators loyal to Bukele claimed that links to both the country’s left and right were the main reason for their removal from the court. But a document out of the Legislative Assembly states that the magistrates were removed for not supporting Bukele’s actions during the pandemic, actions that the Supreme Court had classified as human rights violations.
“There is another part of the Constitution that has to do with the right to a defense, which is a fundamental right,” Campos said. “A fraud has been perpetrated against the Constitution by the procedure used for removal, a fraud against the law for not allowing the use of the fundamental right of defense. Neither in form nor content can this action be considered anything other than a flagrant violation of the Constitution.”
For Celia Medrano, the Bukele administration’s actions since February 2020 are proof that neither the president nor the new legislators have any interest in respecting institutions, laws or the Salvadoran Constitution. The outlook, she said, is only getting darker, since the concentration of executive, legislative and judicial power in one person eliminates any protection for those citizens who file complaints or suffer violations of their rights.
“It’s been clear since the first day of the [current] Legislative Assembly that no respect for the Constitution exists, nor will it,” Medrano said. “Instead, there is individual interpretation by the sector in power that imposes its own understanding on constitutional precepts in order to justify violation of the Constitution itself. It is not a matter of ignorance; it is a matter of harnessing the power of the Assembly to take full control over the judicial branch and the public ministry.
The removal of the justices and top prosecutor was condemned by Latin American social organizations, by the IACHR, by Ecuador’s Constitutional Court and by ambassadors accredited in El Salvador. Moreover, the Organization of American States (OAS) said in a statement that it “rejects the actions of the executive that guided these decisions.”
Various Salvadoran civil organizations requested the United States to convoke the OAS’s Permanent Council to enact the inter-American democratic charter in order to “retore democratic order” in the Central American nation. “We are convinced that this crisis will only aggravate the causes that have historically generated migration toward the United States and will make impossible the creation of better living conditions,” the organizations said.
The President and Deputies Ensure Amnesty for Corruption
Four days after what many call a “rightwing coup,” deputies loyal to Bukele approved legislation proposed by the president and promoted in the Assembly by the official party’s caucus that in essence shields from trial or audit government officials who have made or will make irregular purchases, which they justify as actions meant to fight the pandemic. The law opens a wide path to impunity.
Known as “the act for the use of products for medical treatment in exceptional public health situations occasioned by the Covid-19 pandemic,” Bukele’s legislation was approved by 63 deputies of the official Nuevas Ideas party in the second legislative session. It allows the health minister, Francisco Alabí, and all the public health system’s institutions to carry out contracting and make direct purchases outside the regulations established in the Public Administration Procurement and Acquisitions Law (LACAP).
“What’s most serious is that there had already been a notable setback in the fight against impunity and corruption and now here we are up against another set of crimes against the Constitution, mainly because a self-amnesty is being decreed,” said Campos, the constitutional scholar. “No government has the right to grant itself amnesty or cleanse itself of crimes. It is another flagrant violation of the rule of law.”
Alabí himself was being investigated, accused of violating LACAP rules that prohibit public officials from doing business with the State. During the pandemic, he approved purchases by the Ministry of Health of rubber boots and medical supplies from a family business and a company owned by another government official, at a cost of more than half a million dollars over value.
Reports from the Latin American health news collective Salud con Lupa found that the company that manufactured the masks purchased by the Health Ministry was owned by Koki Aguilar, who at the time was serving as president of the Environmental Fund of El Salvador (FONAB). Aguilar, who also gave out face masks for his personal campaign, said the protective masks were produced with recycled material that the Bukele administration bought.
Moreover, the magazine Gato Encerrado, revealed that Alabí signed a contract for US$225,000 with his family’s company for the purchase of rubber boots. That’s not all. The Health and Agriculture Ministries signed contracts of more than 3.5 million dollars with foreign companies that sell other, non-medical products. Standing out among the irregular purchases mentioned is a corn purchase from the Mexican state of Sinaloa, in which the Agriculture Ministry paid 2.5 million dollars more than what a company in El Salvador would charge.
The controversial legislation was passed just six months after Raúl Melara — the attorney general removed on May 1, 2021 — launched an investigation against the health minister for indications of corruption in the irregular purchases. It also came amid other investigations of alleged corruption in the Bukele government carried out by the Inter-American Commission Against Impunity in El Salvador (CICIES, for its Spanish initials).
“We’re running against the current of universal democratic clauses at the precise moment in which an ally like the United States has announced financial support for the CICIES,” Campos pointed out. “This dislocates the country’s position and its international commitments. A serious line of impunity has been drawn that becomes another fraud. We cannot cover with a cloak of impunity the prosecutor’s office’s open investigation, through the Court of Accounts, of the irregular purchases caried out by the executive during a pandemic.”
The United States Threatens
In Washington, the dismissal of the justices did not sit well with the White House. Vice-President Kamala Harris, who oversees the working group in migration, which is exploring the causes of Central American migration and the problems of the Northern Triangle (El Salvador, Honduras and Guatemala), issued a warning about the Biden administration’s reaction to the undermining of democracy and its institutions by Bukele and his deputies.
“This weekend, we learned that the Salvadoran Assembly moved to undermine its nation’s highest court,” she said on May 4 at a Washington DC conference on democracy in the Americas. “An independent judiciary is critical to a healthy democracy and a strong economy. On this front, on every front, we must respond.” She went on to say, “We are focused on attacking the causes and the roots of migration and among the roots we have identified corruption, impunity, the lack of good governance.”
Bukele had earlier told foreign ambassadors to El Salvador during a private meeting that the removal of the justices had been done in compliance with the law. That meeting was later made public over official government channels, making it look as though the international community supported the Salvadoran president.
“What has happened must be understood within a geopolitical analysis wider than the issue of the El Salvador government’s relations with the United States and with other governments,” Medrano said. “We only need to observe the last chain of events in which diplomatic representatives were assured that their meeting was private, and it ended up publicized. The international community is unlikely to take forceful action. We only need to see ourselves in the mirrors of Venezuela, Nicaragua, Guatemala and Honduras.”
To the messages of concern out of the U.S. were added warnings about the China-El Salvador relationship. Currently, Bukele is flirting with the Asian country to encourage them to buy more than $ 1.5 billion of Salvadoran debt. This does not imply free cooperation, but rather passing the debt to a third party. Several senators and congressmen who had already sent multiple letters to President Bukele over the allegations of human rights abuses, attacks on the press and journalists, and the danger of concentrating power in the executive branch, are now expressing concern over the rapprochement with the Chinese government, and its probable negative impact on human rights, institutionalism and the rule of law.
“It is evident that the Salvadoran authorities do not expect constant monitoring of transparency and respect for human rights, as the United States has announced,” Medrano said. “It is becoming increasingly clear at the international level that we are in an authoritarian regime and that there are no limits for those who govern [and no] respect for internal laws, much less international regulations or even basic forms of understanding. We are facing a government that is not interested in having a good relationship with its neighbors or with other governments other than one in which its acions are praised and accepted.”
Carmen Aponte, a former ambassador and adviser to former U.S. President Barack Obama, warned recently that there is talk in Washington of cutting financial aid, limiting Salvadoran citizens’ ingress to U.S. territory, making public more names of officials linked to corruption, and recommending against approval of more loans to the Salvadoran government, as long as Bukele and his deputies continue to show no interest in respecting democracy and the independence of Salvadoran institutions.
Said Napoleón Campos, “This makes us a pariah in the international sphere because it labels us as anti-democratic and anti-institutional at a time when all mechanisms of accountability should be reinforced. This has a financial as well as political dimension, because the messages of impunity that we are sending out can affect the country financially, in the placement of bonds, for example. Or when it comes to requesting loans, this government will absolutely face serious questions.”