Gabriela D. Acosta --- Council on Hemispheric Affairs
nation in uproar: Salvadorans condemn Funes's record of broken
constitutional crisis looms in El Salvador in the wake of massive
protests against new legislation that undermines the power of the
Mauricio Funes, once the self-professed "candidate for change,"
disillusioned his supporters by veering to the right and signing
Decree 743 into law.
proposed law was a response to rumors that the 1993 Amnesty Law,
which absolved perpetrators of war crimes from legal prosecution,
was scheduled to be overturned.
change in the Amnesty Law could be detrimental to a number of active
politicians on both sides of the political spectrum.
Salvadoran Supreme Court took an unprecedented step in affirming its
independence from political parties.
took the Salvadoran nation by storm in the second week of June in
response to a new law passed by conservative assemblymen. This
measure asserted that no resolution could be declared
unconstitutional without a unanimous vote in the constitutional court
--- a judicial body responsible for reviewing the legitimacy of laws.
Previously, any resolution seeking to define a law as
unconstitutional required an 80 percent majority in the committee,
which comprises five Supreme Court Justices. However, seditious
Decree 743, hastily passed in a matter of hours on Thursday, June 2,
requires an unattainable unanimous agreement. The Justices argued
that this represented a threat to the separation of powers and to the
system of checks and balances in the Salvadoran government, and thus
declared Decree 743 unconstitutional by a four to one vote. Four of
the justices who voted to annul the decree are presently liberal and
the justice who voted in opposition is conservative.
legislation was designed in response to fears that the Supreme Court
would attempt to dismantle the 1993 Amnesty Law, which absolves all
war criminals, some of whom are currently elected officials, from
legal retribution.1 In addition, authors of the law were
concerned that Supreme Court Justices would have the opportunity to
reexamine the Central America Free Trade Agreement (CAFTA-DR) and the
dollarization of the economy.2 A series of progressive
resolutions, that were issued thanks to a liberal majority in the
Supreme Court's constitutional committee, threatened both
conservatives and liberals on the bench. Civilian organizations and
citizens predicted that Decree 743 would indefinitely halt
constitutional procedures by preventing and therefore threatened to
ignite the fire of a popular uprising.
Salvador's conservative parties, including the National Republican
Alliance (ARENA), Grand Alliance for National Unity (GANA), National
Conciliation Party (PCN), and Christian Democratic Party (PDC), in
collaboration with the FMLN President Mauricio Funes, shocked the
Central American country with their incendiary measure. If applied,
the decree would require an improbable unanimous vote that would be
supervised by the judicial body that oversees claims of
and concerned that a unanimous vote would be all but implausible,
public prosecutors, students, journalists, and a sampling of
politically active citizens almost instantly took to the streets in
protest once the law was promulgated. Protesters, outraged by the
controversial decree, swelled in number as the hours passed.
Demonstrators set up camp outside the Presidential Palace in a
powerful manifestation condemning a law that could very well threaten
future democratic development of the small nation. The popular
uprising called for the nullification of Decree 743 before the law
could even be implemented.
2009, El Salvador elected the so-called "candidate for change"
--- none other than the nation's current president, the supposedly
liberal Mauricio Funes. It is unimaginable that the nation's
polarized political parties will easily agree on any controversial
issue, such as gay marriage, abortion, and women's rights; therefore,
the social reforms Funes proposed during his 2009 campaign are now
likely to be stalled indefinitely.
most distressing development is not that the right wing would attempt
such a farfetched maneuver, but that Funes would actually sign the
decree into law. The act was being signed comparatively late in the
Funes presidency and reveals the administration's undetected swing to
the right, causing his former supporters to question the motivation
of betraying his party and its ideals. Without question, the tides
have shifted, redefining the political waters of a leader who once
proudly proclaimed himself to be a disciple of the revered Monsignor
Oscar Romero and an indefatigable challenger of the Salvadoran right
reportedly backed the decree in an effort to gain support from the
right for his relatively moderate legislative agenda, but the move
then backfired subjecting the President to widespread criticism and
resulting in plummeting support.3
June 5, the FMLN publicly condemned the right wing for allowing such
a law to pass, in an attempt to save face with its former supporters,
yet the party omitted any mention of president Funes's involvement.4
Although he had carved out a role for himself in the "lightning
operation," the party's statement amply alluded to the FMLN
president.5 But before the decree was fully discussed, he
offered his support and then authorized the law almost immediately.
Only later was it discovered that he had been involved in the
decree's formulation to begin with.6
its declaration, the FMLN strategically failed to mention that two of
its party representatives hastily signaled their support for the
decree and pushed for the law to be approved by the executive branch
the very same day. The remainder of FMLN representatives abstained
from the vote, demonstrating a reluctance to face the consequences of
either position. However, backing down on their vote has proven
equally detrimental to the democracy as voting for the proposed law
would have been.
FMLN, avoiding a firm stance on the matter, stated its belief that "a
serious, open and sincere dialogue between the governmental branches
is the very least that society demands…."7 The
leftist party went on to state that El Salvador should use this
opportunity to prevent any future attempts by any branch of the
government from violating the constitution.8
threat to the separation of powers
the conditions of Decree 743, El Salvador would have been unable to
reverse either the 1993 Amnesty Law, CAFTA-DR, and dollarization or
adhere to a number of OAS suggestions, such as equal rights for
same-sex unions or marriages. Previously, El Salvador deemed same-sex
marriage and unions as unconstitutional. Considering that the fifth
Supreme Court justice has a history of voting conservatively, a
unanimous vote was highly inconceivable to reject such a declaration.
of his party's pusillanimous position and in an attempt to protect
his image, the FMLN president of parliament, Sigfrido Reyes, called
the event "a democratic tragedy".9 The leftist
ruling party maintains that to allow such a law to continue to exist
is to slash the Salvadoran people's right to a timely and an entirely
appropriate declaration of unconstitutionality. Supporters mourned
the loss of a functioning democracy. The Salvadoran newspaper, El
Faro, reported that lawyer Bessy Rivas was so stricken by the news
that she shed tears in a show of civil disobedience outside the
presidential palace while holding a sign that stated, "I am
stunned by the sanction you made…Mr. President."10
ARENA party backtracked on its support for the decree, but the damage
has been done. The conservative party, troubled by the protests and
fearful of its potential consequences, chose to retract its stance,
which "provides a way out of what had threatened to become a
major institutional crisis."11 According to
LatinNews, ARENA leader, Alfredo Cristiani, said that "ARENA.
would propose a new bill to repeal the controversial legislative
the Supreme Court has taken matters into its own hands by taking the
unprecedented step in affirming its independence from the political
parties. In a meeting held last Thursday, June 9th, at which
President Funes was present, a bipartisan delegation of politicians
affirmed that the final court decision arrived by the Justices would
be respected under one condition: that the court rule in favor of the
party's political demands. The Justices publicly declared that they
will not be coerced into waiving their right to challenge the opinion
of the branches of government and that the matter is not up for
Supreme Court Justices of the Constitutional Committee asserted that
the legislators cannot block the Supreme Court's right to impart
constitutional justice,14 proclaiming that they have the
ability to delegitimize a decree when it goes against the Carta
Magna.15 The Justices consider the Decree an
"interference" with the function of the tribunal court.16
Inter-American Human Rights Commission of the OAS has maintained
critical international pressure to repeal the 1993 Amnesty Law, which
was deemed illegal under trans-national human rights'treaties. The
Salvadoran Constitution states that an international treaty presides
over local law, thus inspiring the motion to declare the law
unconstitutional. The two main political forces involved in the
bloody twelve-year civil war, ARENA and the FMLN, have maintained a
tenuous stance opposing the repeal of the amnesty law. The right and
the left are aware that if the amnesty were repealed, politicians
from both sides could face heavy consequences. Party members,
concerned that El Salvador will follow suit after the annulment of
Argentina's amnesty law, took a radical step to ensure that a repeal
would prove unviable.
law, as it now stands, impedes the ability to enact the changes that
would clearly be necessary to promote the common good of Salvadorans.
However, there is good reason to believe that the protesters are not
likely to rest until the polarized political parties come together to
mend any damages that would be caused by Decree 743. According to his
critics, Funes has woven a tangled web of hypocrisy and betrayal that
ended up disillusioning many of his former supporters. If Funes, who
now risks being a fallen leader, hopes to regain credibility, he must
make rapid, if not copious, amends to exculpate for his wrongdoings.
Until then, he would be wise to engage in some form of contrition for
his obvious growing disservice to his nation.
Latin News Daily. "Arena backtracks in El Salvador." Latin
News. June 9, 2011.
Arauz, Sergio and Gabriel Labrador. "Arena se retracta del
decreto contra Sala y FMLN insta a cumplirlo". June 8, 2011. El
Latin News Daily. "Arena backtracks in El Salvador."
Comision Política Frente Farabundo Marti Para La Liberacion
Nacional. EL FMLN FRENTE AL DECRETO 743. June 4, 2011.
Vaquerano, Ricardo. FMLN Censura Decreto 743 Pero Calla Sobre Funes.
5 June, 2011. El Faro. http://www.elfaro.net/es/201106/noticias/4322/
Comision Política Frente Farabundo Marti Para La Liberacion
Nacional. EL FMLN FRENTE AL DECRETO 743. June 4, 2011. Author's
translation. Contra Punto.
Vaquerano, Ricardo. "FMLN Censura Decreto 743 Pero Calla Sobre
Arias. "Twitterazo contra Funes". El Faro.
Latin News Daily. "Arena backtracks in El Salvador."
Arauz, Sergio y Gabriel Labrador. "Partidos condicionan desatar
a Sala si esta se deja atar en el futuro". June 10, 2011. El
Perez, David. "Sala de lo Constitucional declara inaplicable el
743". June 7, 2011. DiarioCoLatino.
Arauz, Sergio. "Sala de lo Constitucional declara inaplicable el
decreto que la ataría de manos".