El Salvador's Constitutional Reforms and the State of Emergency: An Analysis

by Robert Kirkland


Introduction

El Salvador has been undergoing significant political transformation under the leadership of President Nayib Bukele and his party, Nuevas Ideas (NI). This brief essay delves into the constitutional reforms recently enacted by Bukele's administration and the implications of the ongoing state of emergency declared to combat gang violence.

Constitutional Reforms

Amendment to Constitutional Reform Process

In a move that has sparked widespread debate and concern, the outgoing Salvadoran legislature on April 29, 2024, passed an amendment allowing constitutional changes to be approved by a three-quarters majority in one legislature. Previously, such changes required approval by two successive legislatures. This amendment, passed just before the new 60-member legislature, dominated by President Bukele’s party NI with 54 seats, took office, effectively paves the way for NI to easily pass constitutional reforms without the need for subsequent legislative ratification [1].

The constitutional reform process in El Salvador, established in 1983, was designed to ensure stability and prevent hasty or autocratic amendments. The requirement for approval by two successive legislatures acted as a safeguard, ensuring that any proposed changes reflected a broad consensus over time. By reducing this requirement to a single legislature with a three-quarters majority, the amendment significantly lowers the barrier for constitutional changes, raising concerns about potential abuse of power [2].

Criticism and Concerns

Opposition parties and human rights organizations have strongly criticized this move, arguing that it concentrates power in President Bukele’s hands and undermines democratic checks and balances. Critics highlight that this change enables Bukele to potentially remove constitutional limits on consecutive presidential terms, a concern given his recent re-election bid.

Since 2021, when NI won an unprecedented two-thirds legislative majority, speculation has been rife about constitutional reforms aimed at consolidating Bukele's power. A commission led by Vice President Félix Ulloa had previously proposed changes, including altering presidential term limits, but these were shelved after a favorable Supreme Court ruling allowed Bukele to run for re-election in February 2024. The recent amendment, however, revives these concerns, suggesting a broader strategy to entrench NI’s dominance and Bukele's leadership [3].

Opposition parties, including the right-wing Alianza Republicana Nacionalista (Arena) and the left-wing Frente Farabundo Martí para la Liberación Nacional (FMLN), regard the amendment as a blatant power grab. Arena, which has seen its representation reduced to just two seats in the new legislature, issued a statement warning that the amendment would allow constitutional reforms to be rushed through with minimal scrutiny, undermining the democratic process.

Background and Context

The recent constitutional amendment is not an isolated event but part of a broader pattern of legislative changes aimed at consolidating power. Since taking office in June 2019, President Bukele has pursued an aggressive agenda to strengthen his control over key institutions. In 2021, NI used its legislative majority to replace members of the Supreme Court and the constitutional chamber with loyalists, raising alarms about judicial independence [4].

The commission led by Vice President Ulloa, which proposed changes to the constitution in 2021, was initially tasked with addressing long-standing issues, including the prohibition on consecutive presidential terms. However, after securing a favorable Supreme Court ruling that allowed Bukele to run for re-election, these proposals were put on hold. The recent amendment, therefore, can be seen as a strategic move to bypass the need for judicial approval and directly amend the constitution to consolidate Bukele's power [5].

State of Emergency

Targeting and Arrests

Alongside the constitutional reforms, El Salvador has been under a state of emergency aimed at combating gang violence. Since its declaration, Bukele has significantly increased the targeting of young men, particularly those with tattoos, criminal records, family ties to gang members, or those living in gang-controlled areas. This aggressive approach has resulted in the arrest of more than 70,000 individuals alleged to be gang members, leading to mass hearings and severe overcrowding in prisons [6].

The state of emergency has created a permissive environment for detaining and incarcerating anyone suspected of gang involvement. Often, arrests are based on reports from neighbors or community members, with little to no further investigation. Police officers have reported being pressured by authorities to lie about the circumstances of arrests and meet arrest quotas, leading to widespread abuses. The majority of arrests are for generic charges like "illicit association," which critics argue are used to justify arbitrary detentions [7].

Lack of Due Process

The state of emergency has also led to a significant erosion of due process rights. Defendants often face mass trials, with up to 600 individuals being tried in a single proceeding. Habeas corpus, a fundamental legal safeguard against unlawful detention, has effectively been suspended, and many defendants are tried in absentia. Although there is a legal limit of two years for holding someone without charges, this period is frequently extended under the pretext of ongoing investigations.

These practices have resulted in El Salvador incarcerating its citizens at the highest rate in the world. The lack of due process, the ability to hold prisoners indefinitely without a conviction, and the sham judicial process have drawn sharp criticism from human rights organizations both domestically and internationally [8].

Prison Conditions

The conditions in El Salvador's prisons have deteriorated dramatically under the state of emergency. Most detainees are housed in the newly constructed mega prison, the Terrorism Confinement Center, built to accommodate the influx of inmates. This facility, described as a "gargantuan" complex equivalent to seven football stadiums, is notorious for its harsh conditions. Prisoners sleep on bare metal four-story bunks and are forced to eat food with their hands, leading to severe human rights abuses [9].

Human rights organization Cristosal has documented numerous cases of torture and over 150 deaths in state custody since the state of emergency began in 2022. The extreme violence in Salvadoran prisons appears to be state-sanctioned, with guards and police routinely beating detainees to force confessions or inflict pain. Many prisoners have died under circumstances that suggest torture and abuse, with death certificates often listing causes such as "mechanical asphyxia," "multiple unidentified traumas," or "badly beaten." [10].

A former inmate revealed another method of torture used in the prisons: officers would hose down cells with water and then send an electric current to shock everyone inside [11]. Miguel Sarre, a former member of the United Nations Subcommittee for the Prevention of Torture, noted that one of El Salvador’s maximum-security prisons appeared to be used "to dispose of people without formally applying the death penalty." Amnesty International and other organizations have argued that the conditions in Salvadoran prisons amount to a policy of systematically torturing detainees suspected of being gang members [12].

Inter-Prisoner Violence

In addition to state-sanctioned violence, detainees in Salvadoran prisons also face the risk of torture and death at the hands of other prisoners. This inter-prisoner violence is often carried out with the acquiescence, if not outright encouragement, of prison authorities. The overcrowded and understaffed prison system exacerbates these issues, creating a dangerous environment where the rule of law is effectively suspended [13].

Conclusion

El Salvador's current political trajectory under President Nayib Bukele is marked by significant constitutional reforms and a controversial state of emergency. The amendment to the constitutional reform process, allowing changes to be approved by a single legislature with a three-quarters majority, has raised serious concerns about the concentration of power and the erosion of democratic checks and balances. Coupled with the aggressive targeting of suspected gang members and the severe human rights abuses documented in the prison system, these developments paint a troubling picture of El Salvador's political landscape.

While the stated goal of combating gang violence is laudable, the methods employed by Bukele's administration have led to widespread abuses and a significant erosion of due process rights. The future of the country hinges on finding a balance between effective security measures and the preservation of fundamental rights and freedoms.

Notes:

[1] “El Salvador’s Congress Approves Changes to Reform Constitution, a Move Critics call Anti-Democratic,” AP News, April 29, 2014, accessed at: https://apnews.com/article/nayib-bukele-el-salvador-constitution-reforms-2b4ca5206bd892f01a2a406cbaadccb8

[2] “Constitution of El Salvador 1983 (rev. 2014),” Constitute, Accessed at: https://www.constituteproject.org/constitution/El_Salvador_2014

[3] “Bukele-aligned Assembly Amends Constitution to Further Consolidate Power,” Committee in Solidarity with the People of El Salvador, April 30, 2024, accessed at: https://cispes.org/article/bukele-aligned-assembly-amends-constitution-further-consolidate-power

[4] “El Salvador: New Laws Threaten Judicial Independence,” Human Rights Watch, September 2, 2021, accessed at: https://www.hrw.org/news/2021/09/02/el-salvador-new-laws-threaten-judicial-independence

[5] “El Salvador’s Constitutional Court Paves Way for President Bukele to Seek Reelection Following Purge of Country’s Judiciary,” WOLA, September 9, 2021, accessed at: https://www.wola.org/2021/09/el-salvador-president-reelection-judiciary/

[6] El Salvador State of Emergency,” United Nations Human Rights, March 28, 2023, accessed at: https://www.ohchr.org/en/press-briefing-notes/2023/03/el-salvador-state-emergency.

[7] “One Year Under the State of Exception: A Permanent Measure of Repression and Human Rights Violations,” Situation Report: March 27, 2022- March 27, 2023, Cristosal Human Rights, May 12, 2023, accessed at https://cristosal.org/EN/wp-content/uploads/2023/08/One-year-under-the-state-of-exception-1.pdf.

[8] “Annual Report on Human Rights violations during the

State of Exception in El Salvador,” European Union and SSPAS, March 2023, accessed at: https://sspas.org.sv/sspas/wp-content/uploads/2023/05/Policy-Brief.pdf.

[9] “Coming face to face with inmates in El Salvador's mega-jail,” BBC, February 14, 2024, accessed at https://www.bbc.com/news/world-latin-america-68244963

[10] “Behind the veil of popularity,” Amnesty International, December 2023, accessed at https://www.amnesty.org/en/documents/amr29/7423/2023/en/

[11] David Marcial Perez, “The rampant abuse in El Salvador’s prisons: ‘They beat him to death in the cell and dragged him out like an animal,’” El Pais, March 26, 2023, accessed at https://english.elpais.com/international/2023-03-26/the-rampant-abuse-in-el-salvadors-prisons-they-beat-him-to-death-in-the-cell-and-dragged-him-out-like-an-animal.html

[12] “Behind the veil of popularity,” Amnesty International, December 2023, accessed at https://www.amnesty.org/en/documents/amr29/7423/2023/en/

[13] Ibid.


About The Author


Robert Kirkland is a retired U.S. Army lieutenant colonel and operational Latin American Foreign Area Officer. He has a B.S. from the United States Military Academy, West Point and a M.A. and Ph.D. in Latin American history from the University of Pittsburgh. He also has a graduate certificate in Latin American Studies from the Center for Latin American Studies at the University of Pittsburgh. He can be reached at info@robertkirklandconsulting.com


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