13 November 2023

A Second Term for “the World’s coolest Dictator”?

On October 26, Nayib Bukele, current President of the Republic of El Salvador, officially registered his candidacy for the presidency. This is in clear violation of El Salvador’s Constitution which prohibits the renewed, consecutive candidacy of a sitting president.  In the “Western” media, Bukele has mostly made the news for establishing “mega-prisons” and conducting mass arrests under his watch. These measures mostly targeted young men who were assumed to have a connection to gang violence, often on the basis of visible tattoos or a certain physical appearance. In total over 70.000 arrests were made in a span of just 19 months. Nonetheless or perhaps precisely because of these events, current polls and his approval ratings predict that he is likely to be reelected.

In this blogpost, I highlight the political moves that Bukele has made to legitimize his rule and methods, including his repeated extension of El Salvador’s state of emergency and his capture of the Constitutional Chamber. Together with his renewed candidacy, his rule has destroyed El Salvador’s adherence to its own constitutional framework.

Saving A State Through Repression?

For decades, El Salvador has suffered from political instability and gang violence. Before the recent problems with gang violence and organized crime, El Salvador experienced a civil war from 1979-1992.

Years later, violence spread in El Salvador and Central America by the rise of street gangs such as MS-19 or its rival 18th street gang. The gang wars made the day to day life for a lot of Salvadorans impossible, fearing the sheer amount of violence happening on the streets. Many Salvadorans lost their loved ones or had to migrate because of the violence. The government simply could not keep the situation under control resulting in a frustration among voters in El Salvador. Nayib Bukele, a young and charismatic entrepreneur didn’t fit into the ruling class of politicians and founded, after becoming mayor in San Salvador, his own party: Nuevas Ideas (New Ideas). With his disruptive style of politics, populist rhetoric focusing on security issues and strong social media presence he quickly gained a substantial following, ultimately winning the presidential elections in 2019.

Nayib Bukele’s success in addressing some of the security issue in El Salvador is the reason why he possesses popular support. For example, there is no denying in that the crime rate has declined significantly, especially for serious crimes committed by gangs (the homicide rate fell by 56% in 2022). As such, the same people who have suffered daily street crime support the “strong man” who guarantees order and security. However, these achievements have come at a price. Not only has a substantial amount of El Salvador’s population been incarcerated but also the methods of arrests and incarceration can be criticized. In March this year, the U.N. office for human rights criticized the situation in El Salvador, highlighting the thousands of arbitrary arrests and dozens of deaths in custody that have occurred under Bukele’s rule.

“Western” critiques of what is happening in El Salvador often ignore the position of privilege from which they are being levelled. To insist on the rule of law and human rights might appear like a delusional luxury for those living under conditions where they cannot let their children play in the street for fear of being killed in crossfire or recruited by gangs. While a self-critical perspective is thus important, it is at the same time undeniable that Bukele’s governmental actions threaten to severely weaken, perhaps to the point of collapse, what is left of El Salvador’s adherence to its constitutional framework.

A Permanent State of Emergency

In this regard, a core controversy surrounding Bukele began with the declaration of a state of emergency in El Salvador on March 27, 2022. States of emergency are important legal instruments for maintaining order in the State and providing security to the population in times of extraordinary danger. It makes it easier for the executive to take swift measures by avoiding the time-consuming legislative process. This may be necessary in certain extreme cases, e.g. in times of a natural disaster or an outbreak of a highly infectious disease. In the case of El Salvador, the state of emergency was based on article 29 of El Salvador’s constitution and was justified with increasing homicide rate as a result of gang violence that spiraled out of control. On the same day of the state of emergency was announced, 62 people were killed.

It is highly questionable whether a high crime rate can justify declaring a state of emergency. In particular, a legal instrument for short term interventions should not be applied to a longer lasting situation, like the rise of crime in El Salvador that has been a problem for years. This is in line with what the Constitutional Chamber of the Supreme Court of Justice ruled, before Nayib Bukele’s influence on the court. It held that the escalation of crime, even though it might be an emergency does not meet the requirements of a state of emergency. Moreover, the fact that this procedure should be limited in time is unanimously recognized in the literature and is also regulated in El Salvador’s 1983 Constitution. Article 30 stipulates that states of emergency may not exceed 30 days. If a situation requiring a state of emergency persists, it may be extended for a further 30 days by means of decree.  El Salvador’s very own Supreme Court suspended  a state of emergency that was declared due to the coronavirus in 2020 on the basis that it exceeded the permissible duration.

Bukele’s administration has repeatedly ignored these constitutional limits on the duration of the state of emergency. In July 2023, the Congress voted in favor of a sixteenth extension. One central problem arising from this has been the suspension of procedural guarantees which are essential to preserving the character of a democratic state. But the shift towards a more and more authoritarian rule does not only affect thousands of innocent and wrongfully detained and incarcerated people but also freedom of speech and freedom of the press. Any Salvadoran journalist reporting on gang violence can face up to 15 years of imprisonment.

The supposed aim of the state of emergency in El Salvador was to enable the government to take more repressive and authoritarian measures than usually permitted, especially in the area of criminal law. Following the reasoning of Bukele it was a necessary measure to contain and decrease gang violence. The suspension of fundamental rights and especially procedural rights have facilitated the mass arrests and steady transformation into a police state. Perhaps surprisingly, the great majority of Salvadorans nonetheless approve of these measures and the newly won security on the streets of El Salvador.

An Unconstitutional Candidacy

Critical voices from abroad, but also from within the country, also consider Bukele’s renewed candidacy a violation of the Salvadoran Constitution. The following article of the Salvadoran Constitution explains why:

Article 152.- They may not be candidates for President of the Republic:

  1. Whoever has held the office of President of the Republic for more than six months, consecutive or not, during the immediately preceding period, or within the last six months prior to the beginning of the presidential term;

However, Bukele and his party simply ignored the provision. In September 15, 2022, the Nuevas Ideas party announced that it would re-nominate him. On July 8, 2023 Bukele was officially announced as its candidate. And, in October 2023, he registered his candidacy for the 2024 presidential elections.

Bukele’s renewed breach of a constitutional provision is unlikely to have any consequences for him, given that none of El Salvador’s institutions are in a position to assume the role of checking him anymore. In particular, the Constitutional Chamber of the Supreme Court of Justice (CSJ) is made up of magistrates loyal to President Bukele. Thus, in May 2021, the National Assembly, led by a majority of Bukele’s party, dismissed 5 judges and 4 alternate judges, as well as the Attorney General by means of a resolution, replacing them with people loyal to President Bukele’s government. While the National Assembly does have the competence to remove constitutional judges, a simple “house cleaning,” to use Bukele’s words, arguably amounts to an abuse of these constitutional powers. Indeed, as originally constituted, the Constitutional Chamber declared unconstitutional the dismissals decided by the National Assembly.

A Captured Constitutional Chamber

Nonetheless, the Constitutional Chamber is now exclusively composed of loyalists. In September 2021, they paved the way for Bukele’s reelection by ruling that a second consecutive presidential term is de facto possible despite the clear meaning of article 152. They reasoned not only that term limits constitute an excessive restriction but also that if the people would want to vote for a certain president, they should be able to do so and that, therefore, a rejection would go against the will of the people. This directly contradicts Article 235 of the Constitution of El Salvador, according to which any civilian or military official must act in accordance with the Constitution. The CSJ further argued that a second consecutive presidential term could be in accordance with article 152 ordinal 1 if the president resigns right before the presidential elections just to resume office for a second term after winning the elections. This evidently contradicts the telos of article 152 ordinal 1.

The CSJ thereby  overturned its previous jurisprudence, having prohibited the TSE from registering the candidacy of the former president Elías Saca who wanted run for reelection in 2014. There would have to be an additional presidential term before the same person could step in again and run for presidential election, it ruled back then.

While constitutional courts may change their jurisprudential line over time, in this case the change of heart appears to be driven by its composition and Bukele’s influence over its members. Notably, the Constitutional Chamber of the Supreme Court of Justice also ordered the Supreme Electoral Tribunal (TSE) to authorize the president who had not been in office “in the immediately preceding period to participate in the electoral contest for a second occasion.” By resigning right before the elections Bukele would technically not be in office before the start of the new mandate in 2024. Nuevas Ideas, Bukele’s party already announced that they would take advantage of the constitutional court’s ruling and Bukele would resign on November 30, 2023.

On November 3, the TSE followed this ruling, officially inscribing Bukele as a candidate for the 2024 presidential election. Four of the TSE’s 5 judges had to vote in favor of Bukele’s candidacy for Bukele to be officially admitted as a presidential candidate. The TSE, which thus would have been the last instance that could have prevented Bukele from running again for the presidency, failed to do so.

Sealing El Salvador’s Authoritarian Fate

The Supreme Electoral Tribunal would have been the last instance of keeping Bukele in check. With the decision of November 3, 2023, it has become apparent that the TSE, alongside every other institution in El Salvador which could prohibit authoritarian leaders to come to power, is not capable of doing so any longer. With the removal of its system of checks and balances, El Salvador’s slide from democracy to an authoritarian regime is likely to continue and will probably be sealed with Bukele’s re-election.