El Salvador

El Salvador: President Defies Supreme Court

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OAS Should Address Disregard for Rights Rulings, Constitution

(Washington, DC) – El Salvador President Nayib Bukele, for the third time in 10 days, on April 16, 2020, publicly dismissed Supreme Court rulings to respect fundamental rights while enforcing quarantine regulations, Human Rights Watch said today. The Organization of American States (OAS) should push Bukele to respect the rule of law and consider whether his pattern of disregard for the court constitutes grounds to invoke the Democratic Charter. Security forces enforcing quarantine regulations have arbitrarily detained hundreds of people in containment centers where there is an increased risk of spreading Covid-19. The Supreme Court issued three rulings attempting to stop these abuses, the most recent one on April 15, but Bukele issued public statements defying the court and his administration has yet to comply with the rulings.

“President Bukele’s flagrant disregard of the role of the Supreme Court in protecting fundamental rights should be an early warning sign for the OAS to act now against further erosion of the rule of law and disempowerment of democratic institutions,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The OAS should stand up to leaders who deprive citizens of the fundamental functions of the courts to uphold the rule of law and protect against human rights violations.”

On March 26, the Supreme Court ruled that existing law did not allow security forces to detain people in quarantine centers solely for violating the government’s lockdown rules, and that such detentions could not be constitutionally authorized via executive decree. The court also held that “under no circumstance should police stations be used for detention, not even for a short period.”

However, on April 6, President Bukele said on Twitter he had ordered the police and military to “be tougher with people violating the quarantine” and added that he would not mind if the police “bent someone’s wrist” during an arrest. That night, the police detained hundreds of people for breaking the home quarantine – in contravention of the Supreme Court ruling. Some were also taken to police stations.

In a second ruling, on April 8, the Supreme Court ruled again that “the President, the National Police, the Armed Forces, and any other authorities are constitutionally forbidden” from holding people in a containment center solely for violating the lockdown rules. They underlined that Congress would need to pass a law to specifically allow and regulate such detention. The decree only gave the police the authority to confine someone in such a center when there was good reason to believe they had been exposed to the virus.

The next day, President Bukele tweeted that “anyone who violates the quarantine will be held in a containment center for 30 days or until health professionals determine if they are infected.” He added that testing people at quarantine facilities will not be “a priority,” so they “could be there for a long time.” That same day, the president’s legal adviser announced that detentions would continue despite the court’s ruling. On April 10, the police tweeted that they were continuing to detain people for violating the quarantine and sending them to containment centers.

In the latest ruling, issued on April 15, the Supreme Court ordered President Bukele to comply with its prior decisions, as required by the constitution. The tribunal noted that, despite its rulings, media reports and multiple habeas corpus petitions it had received indicated that people were still being detained solely for violating the quarantine.

Less than an hour later, past midnight, President Bukele tweeted, this time stating that “five people will not decide the death of hundreds of thousands Salvadorans,” apparently accusing the court of undermining anti-coronavirus measures. He also stated outright that he “could not follow” an order that he claimed would allow thousands of Salvadorans to die.

The OAS cannot afford to turn a blind eye when a leader so blatantly refuses to comply with the rule of law and provokes the authorities to defy constitutional rulings on issues of fundamental rights, Human Rights Watch said.

One way for the OAS to address this threat to fundamental rights in El Salvador is to invoke the Inter-American Democratic Charter. This enables OAS Secretary General Luis Almagro, or any member country, to convene a Permanent Council meeting to address situations where there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.”

The invocation of the charter is the first step in a process to determine whether there has been a breach of its provisions. It leads to an initial assessment of the situation by member states and provides that the Permanent Council will “undertake the necessary diplomatic initiatives, including good offices, to foster restoration of democracy” in these cases.

El Salvador’s Supreme Court made clear that it believed the Bukele administration’s lack of compliance was a threat to the constitutional separation of powers, pointing out that compliance with court rulings is a “manifestation of the separation and independence of public powers … a fundamental component of the rule of law [and] an essential element of representative democracy.”

It cited the Inter-American Commission of Human Rights Resolution 1/2020 on “Pandemic and Human Rights in the Americas” that affirmed “the fundamental role of the independence and the performance of public powers and monitoring institutions, in particular the judicial and legislative powers, whose role must be guaranteed even in the context of a pandemic.”

A special report by the Inter-American Juridical Committee in 2015 states that the charter must “be regarded as a mechanism for responding to abuses of democracy where the democratically elected governments are themselves undermining the institutions of democratic government and violating human rights.”

“Bukele acts as if the Covid-19 pandemic justifies removing the Supreme Court’s critical role as a check on rights abuses by the executive branch,” Vivanco said. “To protect Salvadorans, the OAS needs to make clear that basic rights protections and institutions still hold, even during a pandemic.”

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