After Nayib Bukele’s controversial announcement that will run for president again of El Salvador, a decision that contradicts what is established by the Magna Carta but that has the approval of the Constitutional Chamber, many wonder why the president did not take advantage of his popularity to undertake a reform of the text. The voice of america analyzed the issue.
Not all articles of the Constitution of El Salvador can be reformed. The articles that talk about the form and system of government, the territory occupied by the Central American country and the alternation in the exercise of the presidency have been shielded since 1983 and are known as “stone clauses”.
The Salvadoran government has been drafting a reform project for the Constitution for two years without making it clear whether or not they intend to change those clauses, or if the purpose is to modify other articles.
But, if a constitutional reform is promoted, it would only be valid if it is approved by two thirds of the current Congress elected in 2021 and ratified by the Congress that will result from the 2024 elections. That is, by at least 56 legislators.
So waiting for a constitutional reform that does allow for consecutive re-election in El Salvador would take a minimum of two years for Salvadoran President Nayib Bukele, who announced on September 15 past his desire to govern until 2029 even though his presidential term expires in 2024.
The Constitutional Chamber, elected by the ruling Congress in 2021, he made a controversial interpretation regarding continuous presidential re-election and although the Constitution protects, in at least six articles, the principle of alternation in the exercise of the presidency, right now, presidential re-election in El Salvador is possible.
For lawyer José Luis Marinero, president of the Fundación Democracia, Transparencia y Justicia (DTJ), it was not only the time that Bukele had to wait for a constitutional reform that made him not opt for that path, but also “preserving the appearance of legitimacy ” of process.
“The reform of the Constitution requires the approval of two legislatures. (…) If he had done it that way, he would have had to skip that process. In addition, it would also violate the Constitution because the principle of alternation in the exercise of the presidency is one of the stony clauses that cannot be reformed, ”he told the voice of america.
Skipping the time that a constitutional reform entails and reforming the stony articles of the Magna Carta are two “frontal violations of the Constitution,” the lawyer explained. Therefore, the way of interpretation made by the Chamber was the fastest way.
“The Chamber decides on the presidential re-election four months after being elected. Suddenly there is already a resolution on re-election without having to wait,” said the lawyer specializing in public law and public policy.
But the legitimacy of the Chamber that made possible that next candidacy It is a questioning that does not seem to end either: lawyers and civil society organizations disapprove of the election process of the current magistrates and the decisions made.
“Sometimes we think that officials are going to adjust to the norm, but no. We have that resolution that has already allowed the continuous presidential candidacy of Nayib Bukele, which is going to be presented without it being necessary to reform the Constitution”, he told the VOA constitutional lawyer Enrique Anaya.
In his opinion, a presidential re-election by way of constitutional reform is not allowed by the stony clauses of the Constitution and the interpretation made by the current Chamber regarding the issue is not valid either because he considers that it is an “illegitimate” chamber. ”.
Is a change of Constitution valid?
The last time El Salvador had a Constituent Assembly was in 1982 and it was convened to draft the 1983 Constitution now in force in the Central American country.
Although reforms have been made, the stony articles that speak about the alternation in the presidency have not been reformed and neither has it sought to create a new Constitution for that purpose.
In fact, Anaya assured that it is currently not possible to call a Constituent Assembly in El Salvador.
“This call is not provided for in the current Constitution. So, in principle, such a call is not legally viable. To anticipate the call for a Constituent Assembly, the Constitution would first have to be reformed, which requires the intervention of two legislatures”, he told the VOA.
The government’s gaze
The controversial article that has given way to the possible re-election of Nayib Bukele is article 152 of the Salvadoran Constitution, which states:
“They cannot be candidates for the Presidency of the Republic who have held the Presidency 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 start of the presidential term.”
Félix Ulloa, vice president of El Salvador, a lawyer by profession and who leads the process of reforming the Constitution, has said on several occasions that “the immediately preceding period is the one that ended with the mandate of Salvador Cerén in 2019”, And if Bukele wants to be president again, he will have to resign six months before the end of his term to run as a candidate.
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