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  Number 429 | Abril 2017
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El Salvador

Supreme Electoral Tribunal under siege

After a century of shameless electoral frauds, El Salvador acquired an electoral authority 25 years ago that began to prepare to resolve the dispute over political power. Today, however, that Supreme Electoral Tribunal is under siege. The latest instrument used to corrupt its nature is the Supreme Court’s Constitutional Bench.

Elaine Freedman

The struggle between those wanting to maintain El Salvador’s social structure and those wanting to transform it has gone through different moments and different expressions. The main purpose has always been to either continue controlling or to gain control over political power in order to decide the country’s economic, social, cultural and ideological development. El Salvador’s grass roots and its oligarchy have faced off against each other in work settings, universities, the media and on the streets. During the 1970s, the armed struggle gained ground as government repression increased. In the 1980s, the main scenario for this struggle was military.

With the end of the war and the signing of the Peace Accords, an important change of course took place regarding the forms used in the struggle. Those dominating and those being dominated made electoral processes the main stage for class struggle. Since then, elections have been the main form of the struggle for power. This required redesigning the electoral system, which had been shaped up until then solely to guarantee the continuity of the existing system of domination.

A history of frauds

Until 1950 El Salvador’s electoral system had two main characteristics: women didn’t have the right to vote and voting was oral and public rather than written and secret. Up to 1927, even if two or more candidates were competing for a national or municipal position, the results were almost always unanimous, with one candidate getting virtually all the votes. Victory at the polls didn’t depend on persuading voters with ideas or projects, but on occupying the voting centers. Even though voters were mere participants in a formal ritual, the turnout was massive.

According to historian Erick Ching, a specialist on El Salvador, about 300,000 adult men would show up to this ritual during the 1920s and “vote” at tables run by the electoral boards In each mayor’s office. Ching explains that local political power was exercised by men, usually of wealth, with the ability to form coalitions, put up barriers against the opposition and take voters to the voting polls on election day. Since voting for national elections took place in the mayor’s offices, the key for success at a national level was to control the political bosses who supervised the voting in each municipality. This control was usually achieved through preventive actions and monopolizing violence by controlling the national Army.

During that period, Ching describes, the electoral system was both simple (control of the voting centers) and complex. Politics revolved around the many layers of activity based on a complex network of alliances between the local, regional and national levels. However the crucial characteristic of elections was the unanimity of the results. Even during those rare occasions when there was genuine competition at the national level, the votes in each municipality were unanimously in favor of one or the other candidate.”

Pio Romero Bosque’s curtailed reform

The government of Pio Romero Bosque (1927-1931) began the “democratizing” of elections. With an electoral reform that sought to forestall a predicted rebellion as well as introduce certain modernizing measures, President Romero dissolved the governing National Democratic Party’s political machine, abandoned the tradition of sponsoring candidates, increased electoral vigilance and formed “mixed boards” in each voting center with representatives from all participating parties to avoid single-party control. The 1931 elections were considered the “first free elections” in El Salvador.

Denunciation, official investigation and possible annulment of fraudulent elections were mechanisms always included within the electoral laws, but they weren’t put to use until those years. Because elections were irregular by definition before Pío Romero, annulling them was exceedingly rare, but under his presidency annulments tripled. Between 1919 and 1923 fewer than ten local elections were annulled per year, but after 1927 the average went up to a little over thirty.

These changes allowed the electoral victory of Arturo Araujo, the opposition candidate in 1931. He brought hopes of change with his promises of issuing state land to the peasants and supporting the demands of the working class.

In this new context, the newly formed Communist Party of El Salvador (PCS) decided to run in the municipal and legislative elections of January 1932. But a month before they were held, General Maximiliano Hernández Martínez consummated a coup against Araujo’s reformist government. The 1932 elections were a disaster. The Army interrupted voting, especially on the western side of the country where it was clear that the PCS candidates were winning. The Communist Party announced victory in important municipalities such as Santa Tecla and Sonsonate, but those results were never certified. While the newspaper La Prensa also reported that the results favored the PCS, the Diario Official said the opposite. after 10 days of silence The next chapter was the insurrection and the famous 1932 massacre resulting in thousands of deaths.

Fraud is institutionalized

Between 1932 and the 1950 Constitution, talk of free and democratic elections was again interred. It wasn’t discussed either after General Martínez was overthrown or in the succeeding years, until the 1948 coup brought in the Revolutionary Council of Government. It introduced a Constitution that took on many advances in political democracy needed to develop a more modern capitalism. Women were permitted to vote, secret ballots were established and a new electoral authority was created, the Central Electoral Council (CCE) to replace the Departmental Board, the governing body of previous electoral processes. CCE members would be elected by the Legislative Assembly with the participation of representatives of the three leading parties.

Over the next four decades, the CCE guaranteed new electoral frauds. The fraudulent elections of 1972 and 1977 were milestones on this road; two of the most documented examples of electoral frauds in the history of Latin America. The massive distribution of duplicated identity documents and interference in the secrecy of the ballot were key in both frauds.

In 1972, the National Opposition Union (UNO) coalition won the elections despite a biased, manipulated and repressed process, but the CCE handed the triumph to Coronel Arturo Molina from the National Conciliation Party (PCN) with a difference of 9,884 votes. In 1977 the UNO presented a former military officer as a candidate. While many thought that would result in respect for the will expressed in these polls, the regime predictably employed the most obscene forms of fraud.

Salvadorans once again went to vote on February 20, 1977. That time, 80% of the UNO opposition coalition representatives were either arrested or kicked out of the electoral centers. Only 920 of the 3,540 ballot boxes were counted in the presence of UNO representatives. Despite all of that intimidation, ballot box-stuffing and “imaginary” vote counts, the UNO got 157,574 votes in those 920 ballot boxes and the governing party only 120,972.

This time the UNO was better prepared to document the fraud. They monitored and taped Coronel Benedicto Rodriguez, coordinator of the paramilitary organism ORDEN, using the pseudonym “Angel 1,” giving direct instructions to mayors of different cities, territory commanders, national guardsmen and local patrol chiefs to collaborate with the PCN and CCE representatives and repress the UNO’s inspectors and voters.

Even with all this evidence, General Carlos Humberto Romero, the PCN candidate, was declared the winner. Grassroots sectors met in the Parque Libertad to protest such blatant fraud. The protest lasted until February 28, when it was broken up by a massacre that left many dead. Thus ended another chapter of the national political process, canceling out a civil option to achieve justice and democracy in the country.

The birth of the TSE

After the accumulated lessons of over a century of electoral frauds, the FMLN felt the only way it possibly could give up the armed struggle and instead engage in an electoral one would be if the electoral system underwent reforms.

That is how the Supreme Electoral Tribunal (TSE) was born, fruit of the Peace Accords and the corresponding 1991 Constitutional reforms. Among the latter were the reform to the electoral registry, allowing legally registered political parties to monitor its design, organization, publication and updating; the writing of a new Electoral Code based on the recommendations of the Commission for the Consolidation of Peace (COPAZ); and the creation of a new electoral authority, the TSE.

Three main differences existed between the TSE and the CCE. First, the CCE only had an administrative role while the TSE has judicial and administrative roles, which means that the TSE not only has to organize and manage the electoral events, but also has to deal out electoral justice on an ongoing basis. Second, the TSE not only has three magistrates and their respective alternates, proposed by the three main political parties, but also two chamber magistrates and their alternates chosen from short lists proposed by the Supreme Court of Justice. And third, ideological pluralism was introduced into the TSE with the inclusion of the FMLN. Although the CCE ostensibly had political pluralism, as it also had three magistrates and three alternates from three different political parties, there was no essential difference between the interests and thoughts of those parties given the nature of the party system that existed before the Peace Accords. Whatever their differences, all contending parties favored the capitalist, patriarchal and neocolonial system. Once the FMLN started participating in the TSE, ideological pluralism entered the electoral system.

“The game rules are changing because there’s a new player, the FMLN,” explains Magistrate Julio Olivo, current TSE president. Decisions in the TSE are made in a collegial manner: any administrative decision needs three affirmative votes from the five magistrates, while judicial decisions need four of the five votes in order to issue a ruling. The political logic of this system is that the collegial decisions of the magistrates proposed by the different parties permit some power equilibrium that makes it hard, though not impossible for the balance to totally favor one political option. The logic behind integrating two magistrates proposed by the Supreme Court is to favor greater impartiality and increase the institution’s technical capacity, as the magistrates are by necessity chamber magistrates and therefore should have better tools in judicial matters.

According to María Silvia Guillen, a human rights activist and member of the Association of Constitutionalists, the TSE has been “very slow” in gaining strength in all of its roles, adding that “although the Tribunal was created with the Peace Accords, the transition was not very automatic. The tribunal continued acting as election administrator for a good while still, without assuming its judicial role. There are still issues of electoral justice that were never completely resolved, such as starting political campaigning ahead of time. The Tribunal received complaints from social organizations about electoral propaganda outside of the campaigning period that it couldn’t process. As a result it coined an unwritten rule: it would consider something electoral propaganda only if the party or candidate was explicitly asking for people’s votes. The fact was that the Tribunal didn’t have the capacity to take on its new role, and remained unable to do so until Eugenio Chicas assumed the TSE presidency in 2009.”

1994: The elections of the century

In this new context, the “elections of the century” took place in 1994. They were the first elections in which ARENA and the FMLN, two political forces representing two totally opposing interests, ideologies and social sectors, competed. It was also the first electoral process the TSE would manage.

ARENA and the FMLN went to a second round to decide the presidency, and ARENA won. But the Legislative Assembly started its work dressed in new colors, though still with a heavy predominance of parties from the right. The TSE was strongly criticized for both its deficient administrative and judicial work during the process. The voter registration process used to create voter cards was questioned as was the TSE reticence to administer electoral justice regarding the control of political propaganda during the campaign and even on election day itself. The Central American University’s magazine Proceso wrote about “its deficient performance, lack of independence and clear incapacity to sanction those who violated electoral law,” and urgently proposed that it be restructured.

Over the rest of the 1990s the TSE made several advances in computer technology to modernize the system. It replaced the Single Identity Document with an electoral ID; designed a new electoral registry that generated the electoral census with photos of eligible voters and made several other changes to facilitate voting for oeiple with handicaps.

2009: The year of change

The Supreme Electoral Tribunal made it to 2009 with acceptable credibility, weathering the significant questioning. That was the year the FMLN won the presidential elections, which since then has fostered significant change in several spheres of national life. The grassroots forces have learned to play in the electoral court, designed to keep the liberal-bourgeoisie democracy alive. On that occasion, the FMLN won the presidency of the TSE since the members of the TSE are elected every five years and the party with the greatest number of votes in the presidential elections gets to lead the TSE.

Eugenio Chicas started the term heading the TSE. María Silvia Guillén remembers that “for the first time publicity ads and spots that smeared other political parties were suspended; that had never been seen before.” The TSE started seriously taking on its judicial role. The dynamics of almost twenty years were changing. There were also advances in administrative matters with Residential Voting, which is valid in the whole country, and the introduction of the Vote from Abroad. These two novelties sought to increase the electoral participation of people eligible to vote. Residential Voting also sought to reduce fraudulent acts happening at a local level. And although fraud was no longer possible at the TSE level, as it had been all through the 20th century, there was still a significant lag at the municipal level and in the different electoral centers around the country. The changes in the top electoral authority were not viewed positively by the oligarchy, or by ARENA, its political party, or by its associations, such as the National Association of Private Enterprise (ANEP) and the Chamber of Commerce and Industry.

The displeasure wasn’t due to the FMLN “seizing” control of the TSE, which wasn’t possible in a country where almost all the political parties are of different shades of the right and where the composition of the TSE depends on the amount of votes of each party. The Right had little to fear. It was obvious that two of the three magistrates proposed by the parties would come from the right. And the Supreme Court of Justice, which has always held the most conservative schools of thought, would do nothing to harm the oligarchy in electoral matters. However, having to let go of the reins of electoral administration and start an honest exercise of electoral jurisdiction meant ending over a century of the oligarchy’s unquestionable control of the electoral institutional framework.
It was something they could not permit and would seek to impede. And for that they would use their most powerful tool of the moment: the Constitutional Bench

Sharpshooter against the TSE

Julio Olivo, current president of the Supreme Electoral Tribunal, explains that the Constitutional Bench has been dismantling the electoral system agreed upon in the Peace Accords so the FMLN would join civilian life. “First they issued a sentence in essence modifying Article 85 of the Constitution stating that the only way to access power was through the political parties. While the change permiting the participation of “non-party” candidates didn’t seem like a blow to the system, it was the foot in the door. The experiment didn’t work out for them, however, because the judicial endorsement of such candidacies didn’t generate very many contenders nor either did the few who ran get many votes. Even so, it served to get people to start seeing the Constitutional Bench’s meddling in matters pertaining to the Supreme Electoral Tribunal as normal. Next it issued a ruling that the candidate slates would be semi-open. And in 2015, in the midst of that year’s electoral campaign, it ruled in favor of completely open lists, or cross-voting. Now one can vote for a candidate from ARENA’s list, another from the FMLN, another from the center and so on. The intention is to separate electoral preferences from ideological ones.

Later it decided on equal rights for non-party and party candidates, ignoring the fact that party candidates represent an association and that an individual and a collective aren’t the same thing. And in the middle of the 2014 presidential campaign it declared it unconstitutional for a public servant to do political campaigning during non-working hours.

The last straw was the June 2014 attempt, albeit unsuccessful, to remove Eugenio Chicas from the presidency of the TSE for being an FMLN militant. Against all judicial logic, the bench members argued that his mandate in the TSE was unconstitutional. When they realized that removing him only months before his term was up would bring political consequences, they decided not to pursue the case. However, the contradictory idea was sown that magistrates, even though they’re proposed by political parties, shouldn’t have any political ties.

Then last year, the Constitutional Bench justices removed alternate congresspeople elected to the Legislative Assembly the previous year on the grounds that they didn’t have “democratic legitimacy” as their photos weren’t on the ballots. As established by electoral law, their names were listed on party slates in proportion to the number of full legislative candidates. “By this point,” says Olivo, “the electoral system accepted by the FMLN to return to civilian life no longer exists. It’s something else.”

Just when everything that could be done against the TSE seemed consummated, out came the bench’s accusation of “ideological sympathy” against Ulises Rivas, one of the two magistrates chosen for the TSE from the Supreme Court’s ownlist. On February 24, the Constitutional Bench issued a precautionary measure irrevocably separating him from that post while it was ruling on his case. In sum, the Constitutional Bench is acting like a sniper, closing in on its target and shooting with great accuracy.

The case of Ulises Rivas

This case started through a citizen’s complaint filed with the Constitutional Bench against all ten magistrates, both official and alternate, accusing them of party ties, the same offense that had been established in the 2014 case against Eugenio Chicas. Surprisingly, the bench dismissed all the cases except that of Ulises Rivas. Only Armando Pineda Navas, president of both the bench and the full Supreme Court, recused himself from hearing the unconstitutionality claim because he knew of the case beforehand as he had been a judicial expert in the Legislative Assembly at the time they were elected. By this criteria, all the justices should have recused themselves because they were the ones who proposed him as a TSE magistrate. But that didn’t happen. It all seemed like “theater of the absurd.” The TSE was being kicked while down after the beating it had already taken from the four Constitutional Bench justices.

As Ulises Rivas recalls, “In April 2014. the Court publicly summoned lawyers who wanted to compete for the position of magistrate in the Supreme Electoral Tribunal. I presented my documents, along with another 54 colleagues. We were interviewed by a commission, including the then-president of the Court, Florentín Meléndez. I later found out I was on the first shortlist of three candidates unanimously proposed by the Supreme Court justices. I was in third place, which means I was evaluated as the third best candidate. That shortlist was presented to the Legislative Assembly, along with a second shortlist, and I was chosen to be a TSE magistrate.” There are recordings of the deliberative session of the full Supreme Court, which includes the justices on the Constitutional Bench, in which they acknowledge that Ulises Rivas had no party ties.

The Christmas party that provided “legal grounds”

The “legal grounds” for the case against Rivas is based on a happening the year before he was elected to the TSE. “In 2013,” he says, “our lawyer’s guild held its annual Christmas party. As it was during the presidential electoral campaign, we invited all the candidates. Tony Saca said he couldn’t attend because he had other commitments. Norman Quijano’s campaign team didn’t answer and Oscar Ortiz’ team confirmed his attendance. Ortiz didn’t show but the FMLN’s presidential candidate, Sánchez Ceren, did. I gave the welcoming speech on behalf of the guild and we endorsed his electoral program because that’s what people, associations and businesses do during electoral campaigns if they agree with their offer. It was a legitimate campaign act and didn’t mean I was a member of the FMLN.” In fact, Rivas appears on none of the party’s registries, as the Supreme Courrt acknowledged when it proposed him for its shortlist.

The precautionary measures against Rivas were based on an “alleged relationship” that the Constitutional Bench justices later called “ideological sympathy,” an unprecedented category in judicial jargon. In other countries such as Spain, Germany, Finland, Portugal and Costa Rica things operate on the assumption that all justices have a political and idealogical affinity and/or militancy, since it is a citizen’s political right. The issue is that when it comes time to act they must be impartial. “I can be impartial without having to give up my political rights as a citizen,” says Rivas, who is filing an appeal in several entities, including the Inter-American Commission on Human Rights, against the Constitutional Bench for violating his civil and political rights. “If they want to question an official’s impartiality or independence, they should evaluate the person’s work to see if it has been partial, but they they didn’t do that.”

The TSE magistrates were chosen for ideological balance...

The TSE’s formation based on candidate shortlists from the political parties as well as from the Supreme Court seeks to ensure an ideological balance among the magistrates when making administrative and judicial decisions. In what kind of decisions does this balance come into play? Rivas explains: “the balance matters when hiring companies to transmit the results, when putting together the voting stations and when authorizing a system for counting votes.”

The decisions aren’t only technical because there’s always a relationship between technical and political. Cases such as the person in charge of the Tribunal’s computer area, who makes over US$5,000 dollars, which is more than the TSE magistrates, is still there even though the Court of Accounts has seen that he hasn’t presented any academic documents accrediting him in computer science. “It’s a case of political quotas,” Rivas comments. Others explain more clearly that this public servant’s relationship with the ARENA party is what keeps him in his position, despite the Court of Accounts’ observations and the desire of many TSE members, including the president, to replace him with someone with academic formation.

...but they want to remove Rivas for political arithmetic

To affect the TSE’s balance, it would seem more logical to remove the president, Julio Olivo, and not Ulises Rivas, who wasn’t proposed by the FMLN. But in political arithmetic, that wouldn’t have changed anything because Olivo’s alternate was also proposed by the FMLN and would probably vote the same as him on most decisions. Nothing would change in the Tribunal.

Sonia Clementina Liévano de Lemus, Ulises Rivas’ alternate, is a different case. She was the former legal manager and former director of different banks around the country, whose law firm specializes in corporate and financial law. Even though she acknowledges her rightwing thinking, it seems to be of no concern to the justices on the Constitutional Bench when they insist on TSE magistrates not having any “ideological sympathies.”

The judicializing of politics

It seems contradictory that the Supreme Court’s Constitutional Bench has been modifying the electoral game that defines the makeup of the country’s political power, when the TSE is the highest authority in electoral matters. Camila Vollenweider and Silvina Romano, from the Latin American Strategic Center of Geopolitics (CELAG) illustrate this contradiction in an article titled “Lawfare: the judicialization of politics in Latin America.”

They explain that this strategy started being used in different spheres in 2001. They refer to a book by US Air Force General Charles Dunlap: “In it he describes a nonconventional war method in which the law is used as a means to obtain a military objective.... It has to do with the inappropriate use of judicial instruments with the purpose of political persecution, destroying public image and disqualifying a political adversary. It combines apparently legal actions with wide media coverage to pressure the accused and those around them (including close relatives) so they’re more vulnerable to accusations without evidence. The goal is to achieve the loss of grassroots support so they don’t have the capacity to react.”

Ulises Rivas considers that his case falls within this category. “The judicialization of politics,” he says, “is a phenomenon that is spreading through Latin America. This cannot be allowed, much less in electoral matters. In a democratic system of representation, where the sovereign people go to the polls and define who will be in the country’s publicly elected positions, the battle for political power should be at the polls on election day. There you win or you lose. It can’t be that if someone doesn’t like what the people decide they can try to win the battle in court.”

Rivas adds that “judicial activism has several components: to discredit the political class, create distrust among the people, use the media to induce people to think like them, prepare the grounds so the people and institutions accept the irregularities they can cause, put in officials who are unconditional to the economically powerful and apply neoconstitutionalism, where the judicial authority makes the country’s big decisions.”

María Silvia Guillen complements that view: “The Constitution is being reformed via the judicial authority. According to article 248 of the Constitution, the only way to modify it is with the approval of reforms by one Legislative Assembly and its ratification by the next Assembly, but now the Constitutional Bench does it. It generates competencies for officials who don’t have them and takes it away from other officials”

The TSE under siege

Since elections are the way to access political power in the country, it’s no surprise that the TSE is a treasure chest in dispute, Historically, the electoral authority served to guarantee the political project of the dominant class, executing the grossest expressions of electoral fraud known in the continent. When the war ended, even when the new Electoral Tribunal wasn’t functioning efficiently or very transparently, it had an advanced formality that represented a significant leap in quality for democratic institutions in the country.

With the FMLN’s electoral victory in 2009 and its participation to improve the TSE’s structures, the Tribunal began to experience more and more aggressive attacks from the right, through their unions, their media and ultimately the Supreme Court’s Constitutional Bench, which is becoming a fundamental piece of this struggle rather than an impartial referee in it.

A year away from the municipal and legislative elections in 2018, and two years away from the presidential elections, it is ever more evident that the TSE is under siege by the forces that fear it will fully take on the mission for which it was created when the war was brought to an end.

Elaine Freedman is a grassroots educator and the envío correspondent in El Salvador.

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