Unconstitutional Eradication of Presidential Term Limits: The Case of El Salvador

Jonatan Mitchel Sisco Martinez

Universidad Dr José Matías Delgado

This blog post analyses the role of the Legislative Assembly of El Salvador in the capture of the judicial branch and the subsequent controversial behavior of the politically-controlled Constitutional Chamber of the Supreme Court of El Salvador, which has provided both political support to unconstitutional legal reforms and a ruling that paves the way for President Nayib Bukele’s immediate reelection. 

Some Background: History of Presidential Term Limits in Salvadoran Constitutionalism 

Corruption, coups, human rights violations, authoritarianism and political instability have been commonplace in the history of El Salvador. Fifteen Constitutions have been drafted and adopted since 1812, and many of those Constitutions were tailored to one particular need: the incumbent’s desire to perpetuate their own power. Immediate reelection of the President has been explicitly prohibited since the 1841 Constitution (art 44) and this norm is one of the core principles of El Salvador’s Constitution. 

The Constitutional Chamber of the Supreme Court of Justice of El Salvador declared in ruling 163-2013 that arts 88, 152(1), 154, 127(6) and 152(7) of the current Constitution (adopted in 1983) require “the course of two terms of office before the eventual reelection of the same person”. In making this ruling, the constitutional judges were aware that populist and corrupt presidents might try to perform all kinds of maneuvers to circumvent term limits. 

El Salvador’s Incomplete Transition to Democracy 

From 1992 to 2019, the Salvadoran political establishment failed to achieve a complete transition from authoritarian rule to a democratic society. Parties which held power after the 1992 peace accords were not able to address systemic corruption, and indeed became an active part of it.  For example, the last two Presidents from the left-wing party and ex-guerrilla FMLN—Mauricio Funes and Salvador Sanchez Cerén, who ruled from 2009 to 2014—were prosecuted for corruption and are now fugitives protected by Nicaragua’s dictator Daniel Ortega. The last two Presidents from the right-wing party ARENA were also prosecuted: one of them pleaded guilty to three different corruption charges (Elías Antonio Saca, President 2004-2009) and the other died while being prosecuted for corruption (Francisco Flores, President 1999-2004)  

The current President, Nayib Bukele, won presidential elections in 2019 by a landslide, running on an anti-corruption agenda and openly criticizing both major parties because of their corruption scandals. Following his election, President Bukele implemented populist and authoritarian measures during the COVID-19 pandemic. His popularity ratings gave him another landslide victory in the Salvadoran mid-term legislative election in 2021, resulting in his party and his unconditional allies controlling a supermajority in the Legislative Assembly (with 67 of the 84 seats) 

Unconstitutional Power Grab: Judicial Capture by the Executive 

In its very first session on 1 May 2021, the Legislative Assembly of El Salvador unlawfully dismissed five Judges of the Constitutional Chamber and appointed five new Judges who had no experience in the judiciary. The removal was declared unconstitutional (by those very Judges) but this ruling was disobeyed by the legislators. 

Under the Constitution, Judges of the Supreme Court are appointed for a nine-year term. The same legislature can only appoint five Supreme Court Judges every three years (art 186), a third of the Supreme Court (Constitutional Chamber ruling 114-2014). However, the current legislature has removed five Judges and appointed ten new judges, eight men and only two women. 

More broadly, legislative reforms approved in August 2021 compulsorily removed from office all Judges over 60 years of age or more than 30 years of service, almost a third of the Salvadoran Judiciary. The reforms also gave the Supreme Court the power to arbitrarily transfer judges from their posts without due process. This reform is unconstitutional because the legislative branch has no power to present legal initiatives in matters related to the Judicial Branch. Only the Supreme Court of Justice can exercise that initiative, as indicated by the Constitutional Chamber in ruling 6-2016. 

One of the many arbitrary transfers happened in April 2022 when President Bukele asked the Supreme Court to remove “judge accomplices of organized crime” on his twitter account, after a judge acquitted 42 gang members due to lack of evidence. The Supreme Court transferred the judge without due process as punishment, only 6 hours after Bukele’s tweet.

Eradication of the Presidential Term Limit by Adjudication 

Early in 2021, the captured Constitutional Chamber decided to pave the way for immediate presidential reelection in ruling 1-2021, despite the fact that, as outlined above, Salvadoran Constitution prohibits this. Article 152(1) provides that:

The following shall not be candidates for the President of the Republic:

1. He who has filled the Presidency of the Republic for more than six months, consecutive or not, during the period immediately prior to or within the last six months prior to the beginning of the presidential period. 

Article 154 specifically states that presidential terms shall be: “five years and will begin and end on the first day of June, the person who has served as President will not be able to continue in office not even for one more day”. 

The immediate reelection prohibition is explicitly an unamendable clause regulated by article 248, which states:  

Under no circumstances, may the articles of this Constitution, which refer to the form and system of government, to the territory of the Republic, and to the principle that a President cannot succeed himself (alternabilidad), be amended. 

The Constitutional Chamber’s reasoning, in ruling 1-2021, justifying the constitutionality of allowing the Presidential to stand for a second term, was as follows: 

1. The prohibition in article 152(1) is directed to candidates who run for President, not to the President. This allows presidential reelection just once, but prohibits reelection beyond two terms.

2. The Constitutional Chamber’s earlier ruling 163-2013 (cited above) was too restrictive an interpretation because it prohibited citizens from having the option to vote for the incumbent president and his political program.

3. Constituent power gave the incumbent president the option to run for a second mandate, if he or she requested the legislative branch for a leave six months before the end of their term. In this way, the incumbent does not take advantage of his or her position. 

This ruling sidestepped the statement of reasons given in 22 July 1983 by the Constituent Drafting Committee, which explicitly states that “only candidates may become Presidents of the Republic” and it is in the candidacy  phase that a person may be disqualified for reasons of incompatibility or inability. The decision to permit immediate presidential reelection simply cannot be inferred or justified in light of the clear words of art 152(1). 

The immediate reelection prohibition was “eradicated” in a creative judicial interpretation by unconstitutionally appointed judges – who also had been overruling important precedents, weakening checks and balances, imposing  unreasonable evidentiary burdens on citizens –  a situation reminiscent of what happened in Peru (in 1997), Honduras (in 2015)  and Nicaragua (in 2009). The abolition of the rule that prohibits presidential immediate reelection by the Salvadoran Constitutional Chamber is an example of what Yaniv Roznai has described as a landmark constitutional revolution by adjudication. Ruling 1-2021 transformed the legal system by eradicating the constitutional rule that prevents an incumbent President remaining in power, an unamendable provision established by the primary constituent power that has been part of the core of Salvadoran Constitutional history since the 1841 Constitution. 

If political power is not exerted within the boundaries set by the Constitution, human rights violations, abuses of power and impunity might become a normal practice in El Salvador. In this regard  the Inter-American Court of Human Rights stated in Advisory Opinion 28 at [145]: “the greatest current danger facing the region's democracies is not the abrupt breakdown of the constitutional order, but the gradual erosion of democratic safeguards that can lead to an authoritarian regime, even if it is popularly elected”. 

Jonatan Mitchel Sisco Martinez is an administrative lawyer at Foundation Cristosal, and an LLM Candidate at Universidad Dr José Matías Delgado, El Salvador

Suggested Citation: Jonatan Mitchel Sisco Martinez, “Unconstitutional Eradication of Presidential Term Limits: The Case of El Salvador”, IACL-AIDC Blog (27 April 2022) https://blog-iacl-aidc.org/new-blog-3/2022/4/27/unconstitutional-eradication-of-presidential-term-limits-the-case-of-el-salvador.