El Salvador treads deeper into constitutional crisis as COVID-19 surges

El Salvador’s President Nayib Bukele has submitted legislation to extend by 15 days strict quarantine measures in the country, some of the harshest in the region, as the nation moves deeper into a constitutional crisis.

Bukele has come in for international condemnation for actions taken by executive decree using constitutional emergency powers, particularly for putting individuals in violation of quarantine in detention centers.

Concerns only sharpened after the president openly defied a supreme court ruling declaring the practice unconstitutional in April. 

On Tuesday, the high court again acted, declaring the legislature has the ultimate authority in any measure limiting personal freedoms.

Deadly phase

Meanwhile, health authorities say El Salvador has entered the third and most deadly phase of the pandemic. 

Having carried out only 150,000 tests since the start of the crisis, the health ministry has confirmed 5,150 cases of COVID-19 and 119 deaths. The figures include six deaths and 177 confirmed cases announced by the ministry on Wednesday. 

The largely impoverished country faces an immense challenge in attempting to prevent further spread of the coronavirus with government infighting further complicating public health efforts. 

Public health above the law?

Bukele has expressed his desire to work within the law, but repeatedly defends his actions as those needed to protect lives, whether it is legal or not, criticizing El Salvador’s 1983 constitution as a flawed document “that gave immunity to corrupt presidents of the past.” 

“We will give it one more try, sending a legislative initiative,” Bukele said on social media, ahead of submitting the bill to the legislature.

Should the legislature reject the new text, Bukele said, “The government would simply end up becoming a hospital administrator. In that case, we will be the best hospital administrator we can be.” 

El Salvador’s legislative assembly, where Bukele’s GANA party has a minority, has passed legislation codifying the president’s powers during an emergency.

Lawmakers on Monday passed the latest version of the health emergency law by 48 votes to 13 with four abstentions in the unicameral assembly. The law specifies exact mechanisms by which the president may enact restrictions to constitutional rights in a health emergency.

However, Bukele has said he would veto the bill and sent a formal letter of protest to congress insisting that legislators do not remove emergency powers from the presidency. 

These measures include: the power to declare an emergency, to establish immediate measures in the interim, at least until such time as the legislature and/or courts act on the matter; a defined mechanism for the gradual opening of the economy to avoid contagion; health guidelines in accordance with the provisions of the health ministry; the establishment of an entity in charge of decreeing outbreak zones; and guidelines on the resumption of classes at public schools and universities.

The president as of Thursday afternoon had not signed or vetoed the bill but the executive has made it clear that with the 15-day quarantine extension initiative, Bukele would continue to oversee the crisis as he sees fit while lawmakers debate his proposed legislation.

Vicious circle 

The back-and-forth pattern of proposed extensions, legislative counterproposals and vetoes, peppered with supreme court rulings that Bukele is ignoring, suggests the current political crisis may continue indefinitely.

The letter provoked a strong reaction from multiple lawmakers, including Jorge Schafik Hándal of the traditional left-wing party FMLN, who said on Tuesday: “It is a total falsehood of the president, nothing has been taken from him,” reported local news outlet ElSalvador.com.

The measures included, he argued, simply clarify under what circumstances the president may act to curtail constitutional individual rights without the consent of the legislature. The reform would largely limit the sort of carte blanche powers to manage emergencies that must be acted upon before lawmakers are able to come to session. 

Lawmakers insisted Bukele either sign the legislation by Thursday or veto it and return the bill to the national assembly, where lawmakers will have the ability to override the veto.

The decision to not act on the legislation, rather than having a specific issue with the initiative, “is a political maneuver by the president, along with his team,” said Hándel.

Carlos Reyes, legislative coordinator of El Salvador's main right-wing party ARENA, insists the bill includes 95% of what the executive has asked for as a legislative solution to end the constitutional crisis.

But rather than allow the legislation through, argues Reyes, the president is delaying action by stalling and eventually issuing vetoes. In the meantime, he simply issues new initiatives to extend his policies to force the hand of the legislature. 

Hándal argued that the supreme court has made it clear that the power to restrict personal liberties ultimately lies with the legislature, and that this should be enough to compel Bukele to comply.

Rodolfo Parker, a lawmaker with the minority PDC party, described Bukele’s unwillingness to respond to the approved legislation as inciting "legal pandemonium." 

"It’s not understandable, it’s not rational, he’s doing a job to wear down the assembly,” said Parker. 

Criticism of Bukele from abroad is also mounting. 

Speaking at an event hosted by the Inter-American Dialogue in May, former US ambassador to El Salvador Mari Carmen Aponte said, "With less than a year in office, this popular president has placed himself above the law. 

"In the process, he managed to trample two hard-earned Salvadoran achievements: democracy and the delicate peace accords that concluded the bloody Salvadoran civil war less than three decades ago," said Aponte. "From El Salvador, the international community is receiving a ‘mayday’ signal.”