On April 5, 1992, then Peruvian President Alberto Fujimori informed the nation of his decision to dissolve the Congress of the Republic because it stood in the way of his plans to tackle the economic crisis, drug trafficking, and terrorism that were plaguing the country, an event remembered as the “self-coup” or “Fujimorazo.” He took over the Judiciary, the Public Prosecution Service, and the Constitutional Court for the same reasons. Under the scenario he presented that night to the Peruvian people, these institutions, made up of the “same lazy and corrupt people as always,” were holding back the country’s development and pacification, and thus needed to be reformed. Two years earlier, Fujimori had won the election thanks to a majority that viewed him as someone who could bring about change. He won as the “outsider,” the enemy of the establishment and the traditional political parties, the hard-liner who came to bring order to the country, a man of the people who understood their needs and could provide solutions.
Images of that self-coup from nearly 30 years ago in Peru came to mind when last February 9 we saw the Salvadoran Armed Forces forcibly enter the Legislative Assembly by order of the President, invoking Article 87 of the Constitution which recognizes the people’s right to “insurrection.” Nayib Bukele, the “millennial” leader who had come to give Salvadoran politics a breath of fresh air, who enjoys taking selfies and governs by Tweet, wanted to show his country’s Legislative Assembly that he intended to follow through on his threats if it kept refusing to approve a loan for his anti-violence plan. Many of us feared we were witnessing a repeat of the Fujimorazo and breathed a sigh of relief when the president, after entering the Legislative Assembly and praying, reported that he had asked God what to do and that He had told him to be patient, that is, to suspend his plans to close Congress.
This bold act of intimidation, never before seen in El Salvador, was met with unanimous international condemnation and led some to call it Bukele’s initial step on the path to becoming the region’s first “millennial dictator.”
One month later and only two days after WHO officially declared Covid-19 a pandemic, the Legislative Assembly of El Salvador decreed a nationwide state of emergency at President Bukele’s request. El Salvador thus became one of the first countries in the world to introduce pandemic response measures, and the international community recognized Bukele’s actions as a positive sign after the previous month’s blunder. Unfortunately, we were mistaken.
International law allows States to take exceptional measures in the event of an emergency, disaster, or crisis. However, this is not carte blanche for States to act in an arbitrary, capricious, or unlawful manner. The provisions to be adopted must respect the constitutional framework and international law, which requires that they be expressly stated in a law and be necessary, proportional, appropriate, and reasonable in view of the crisis. The Covid-19 emergency is a health crisis, so the actions taken to deal with it must aim to protect the health, as well as the life and physical integrity, of the Salvadoran people. President Bukele’s pandemic response measures have not only ignored the rules established by international law for these scenarios but appear to be more of a show of force than a plan of action to resolve a serious public health crisis.
While the initial declaration of a state of emergency and its first extension were done through legislative decrees, as provided for by law, subsequent extensions were illegally authorized by President Bukele, disregarding the powers that the Constitution expressly grants to the Legislative Assembly in this area. By this time it was already clear that the initial declaration of emergency, although necessary, had many gaps which—in addition to confusing citizens about their rights and obligations during the emergency—were serving as an excuse for clearly disproportionate measures on the part of the authorities, undermining the fundamental rights of Salvadorans. Because of this, the Assembly wanted to hear from the President before granting an additional extension, but he preferred not to answer its request and to extend the state of emergency unilaterally, in violation of the law.
In this rather confusing context, one of the most controversial actions to “confront the pandemic” has been the unlawful detention of those who break quarantine. These people are transferred to mandatory holding centers or confinement facilities where they have to stay for at least 30 days, without any protection or social distancing measures to avoid contagion. In a blatantly disproportionate move, the Salvadoran President opted for deprivation of liberty—a punitive measure and the last resort option provided for by criminal law when no less serious measure is applicable—to address a public health problem. According to official figures, some 12,011 people have passed through these holding centers to date, and more than 3,000 are still being held.
Given this situation, the Constitutional Chamber of the Supreme Court has been playing a fundamental role as a mechanism for judicial oversight of the emergency measures. In adjudicating several habeas corpus and amparo actions, the Chamber has questioned the illegal detentions, recalling the international law requirements for the imposition of such measures in times of crisis. The Court has expressly stated in various of its decisions that limitations on fundamental rights must be set out in a formal, published law, with clear and precise conditions of application to prevent excessive discretion and arbitrariness on the part of the authorities and, above all, that these measures must be subject to judicial oversight. In an expression of what appears to be “the new normal” in El Salvador, President Bukele has refused to abide by the Court’s rulings, making incendiary remarks against the Constitutional Chamber and its members.
Following a well-known playbook and in contrast to the rest of the world—which is concerned about reducing prison overcrowding to keep prisons from becoming hotbeds of contagion—prisons in El Salvador have become ticking time bombs, a marketing strategy for President Bukele. Arguing that many murders are planned from behind bars, Bukele declared prisons under a “maximum state of emergency” in late April and sent a Tweet ordering that members of rival gangs be placed together in the same cells, to be sealed off to keep out the light. He also authorized the use of lethal force to combat violence and gave assurances that the government itself would defend “those who are unjustly accused for defending the lives of honest people.” Images from the prisons triggered an international outcry over their brutality and violence and were described by many as cruel and inhuman treatment, in addition to sending a clear message to the public about “who’s in charge” of the country.
To counteract the media impact of his “strategy” and take advantage of his high popularity ratings, Bukele has tried to delegitimize any dissent during his first year in office by fiercely attacking his critics. He has a very tense relationship with the press, especially with independent investigative journalism, but has also publicly rebuked civil society organizations, accusing them of supporting the gangs because they are critical of the measures taken in the country’s prisons. His first year in office leaves us with serious concerns because we see him following a script that is familiar in the region—one that puts the rule of law “in parentheses” when it is viewed as an obstacle to solving the country’s problems. It reminds us once again of Peru where, predictably, “express” solutions to structural problems did not work, where fundamental principles of democracy and the rule of law were trampled upon and fundamental rights were violated under the pretext of “saving the country from terrorism,” all of which was punctuated (and funded) by serious acts of corruption. Alberto Fujimori is currently serving a 25-year prison sentence for corruption and human rights violations at the Police Special Operations Headquarters (DIROES), east of Lima. We don’t want a new Fujimori in the region.
*This article was originally published on the Dialogo Derechos Humanos blog in June 2020.
**Executive Director, Due Process of Law Foundation (DPLF)
Foto: AP Images/Salvador Melendez