A months-long political feud over the Supreme Court in El Salvador has blossomed into what observers are calling a constitutional crisis. The first shot was fired in April when legislators from the FMLN engineered a “legislative decree” to replace five court Magistrates, the outgoing Assembly’s second shot at choosing justices during its three-year term. The court’s Constitutional Chamber in June declared the decree unconstitutional – because each Legislature gets to vote only once for Magistrates. At the same time, the Chamber invalidated a similar move by the opposition ARENA party affecting Magistrates chosen in 2006.
The theater came to a head this month when two feuding Supreme Courts met in different wings of the same building and claimed legitimacy – one with five members elected in 2009 and the other with the 10 invalidated members. The rightwing ARENA party and its allies in Washington are claiming the crisis represents a shift against democracy by the FMLN. Two Cuban-American members of the U.S. Senate have called on the Obama Administration to impose sanctions – principally suspending negotiations on a second Millennium Challenge Corporation compact potentially worth hundreds of millions of dollars – if the crisis is not ended quickly and in the manner they wish. The Inter-American Commission on Human Rights (IACHR) has called for prompt resolution, and the U.S. Ambassador in San Salvador and the State Department have expressed “concern.” A Washington Post editorial this week lambasted the FMLN for shifting toward Chávez-style authoritarianism and President Funes for failing to stop it.
This episode reflects maneuvering within the FMLN – fueled by frustration that President Funes’s soft line toward ARENA has only weakened the party’s influence – and poor judgment among activists on where and how to pick the fight. The legislators rushed the decree because they anticipated correctly that they were about to lose control of the Assembly in elections several weeks later. The crisis falls into a much more ominous pattern, however, in that – like the coups in Honduras (2009) and Paraguay (2012) – the right wing and its coreligionists in Washington exploit events to challenge the democratic credentials of a democratically elected reformist government to rationalize weakening it, while the Obama Administration responds timidly. ARENA is again demonstrating its superior lobbying skills in Washington, which have already severely disadvantaged President Funes on issues such as relations between his security cabinet and its U.S. counterparts – resulting in a serious erosion of his own influence over security issues. If the current political impasse is not resolved to the satisfaction of U.S. conservatives, Washington’s threats – ironically directed against the Administration’s “best friend” in Central America – will likely continue and relations will be strained, further persuading hardliners around Funes that moderation pays no dividends.