A discussion about democracy in El Salvador

On August 12, I posted a long piece critiquing an article by Hilary Goodfriend published by The Nation on August 8 with the provocative title How El Salvador’s Supreme Court Is Undermining Democracy—With Washington’s Help, and subtitled WikiLeaks has exposed US government collusion with the chamber’s destabilization strategy.   Ms. Goodfriend has sent me a reply to the points I made in that post, and rather than relegate them to the comment section, I am publishing them here (in italics) along with my replies.   I appreciate Ms. Goodfirend's reaching out to me with her point of view, and I hope this can be a springboard for discussions.

HF:  I never claim that the Wikileaks cables cited in my article, in which the US Embassy blatantly establishes its support for ARENA and acknowledges the right-wing party’s Supreme Court-led strategy to regain power, are “a brand new revelation,” as you write. Rather, my article draws from those cables as evidence that escalating Supreme Court interventions have their origins in a strategy established by ARENA as a back-up plan should the FMLN come to power, with the State Department’s knowledge and support.

Tim:  There may have been a plan, but the plan described did not work, as I pointed out.   You also don’t deal with the fact that the US had a conservative George Bush administration at the time of the cable, and that by the time Mauricio Funes was elected, Barack Obama was president and there was a much different relationship with the FMLN than in the past.   

HF:  Even if ARENA’s hopes for Supreme Court nominations in 2009 fell short of stacking the entire bench with sworn party allies, my article outlines the numerous occasions on which the magistrates have demonstrated their allegiance to the political Right: they ousted the Constitutional Chamber’s loan progressive magistrate, and they have repeatedly undermined administration-led policy. That some of these decisions are based on dubious procedural technicalities hardly bears on their political nature.

Tim:  My problem with that response is that you base your views on whether the outcome had the result the FMLN wanted, and not whether or not the court correctly applied the law.   I would submit that El Salvador needs a court and judges who follow the law in order to be an effective democracy.  You also don’t deal with the fact that the Court has also issued rulings which the right did not favor.

HF:  You write that “there is no basis to think that gangs have a partisan interest to help either political party,” but while the magazine El Faro may disregard connections between the right-wing opposition and organized crime, there is in fact ample evidence to the contrary. It’s worth disclosing, incidentally, that El Faro is owned by the oligarchic Simán family, which has deep ties to the right-wing opposition. In recent days, in fact, the bodyguard of the head of the ARENA legislative group was arrested with several known gang members, and a wake was held in the ARENA party headquarters in the town of Apopa for a dead gang member who had murdered a police officer. Furthermore, the Attorney General has confirmed that he is investigating the mayors of Apopa and Ilopango, both from the ARENA party, for ties to gang structures, and municipal employees in Apopa and Zacatecoluca, also governed by ARENA, have been charged with conspiring with gangs.

Tim:  By every account, El Faro has the most integrity of any journalistic outlet in El Salvador and has won a great number of international journalism awards for its work. and that work has included the investigation of ARENA figures like Francisco Flores and has investigated ties of public officials to narco-trrafficking. El Faro published the WikiLeaks cable which you start with.  But more than that, it does not make sense to claim that the gangs have a love for ARENA, the party which brought us mano dura and super mano dura and anti-gang and terrorism laws.   Certainly the situations of local governments which you raise are things which should be investigated, but I’ve been around El Salvador long enough to know that situations like those are seldom what first appears in the press or in partisan tweets.    I think it is also worth noting the political parties coming together to commit themselves to a common approach to the gang problem at the end of August.

HF: Finally, you claim that I merely echo the FMLN and Sánchez Cerén administration, but you ignore the numerous Salvadoran civil society groups that have denounced and continue to denounce the Supreme Court and other right-wing destabilization tactics (including violence) publicly: The International Democratic Federation of Women of El Salvador (FEDIM), which includes well-known and respected feminist and women’s organizations like Las Mélidas; the broad-based Social and Union Coordinating Committee (CUSS), which includes public and private sector unions, community organizations, agricultural cooperatives and more; and the Social Alliance for Governability and Justice, of over 30 groups, including youth organizations and community media groups like ARPAS, just to name a few. Margarita Posada, of the National Healthcare Forum, said in June: “The Constitutional Chamber is not a super power; but it has disrespected the Executive power and the Supreme Electoral Tribunal. Those four magistrates act in parallel with the protests of the ARENA party, when they should strengthen the country’s democratic system.”

Frankly, and in closing, your unconditional support for the crown of El Salvador’s judicial branch, which remains ridden with corruption despite repeated calls for judicial reform from political and civil society alike, surprises me; certainly, you must recognize that the regional Right has in recent years focused much of its oppositional efforts to undermine progressive governance by way of Supreme Courts, giving rise to the infamous “constitutional coups” that ousted democratically elected leaders in Honduras and Paraguay in recent years. I wrote my article precisely out of concern that the State Department-lead discourse of “institutionality” is blinding otherwise well-intentioned progressives to the political nature of the Court’s interventions, and in hopes of contributing to a critical analysis of the complex issues facing El Salvador today. As someone who shares your commitment to the cause of justice in El Salvador, I hope you can be receptive to my arguments.

Tim:  Fundamentally, and probably because I am a lawyer, I think we disagree about the importance of the rule of law and the role of courts.   If a country is to operate under its laws and its constitution, then its supreme court has to have the last word on what those laws mean.    I do have criticisms of the Constitutional Chamber, which I hope to write about in a future post.   For example, the court needs to decide cases in a timely manner  -- the recent decision on the anti-terrorism law dates back to the Saca administration, while the case involving the validity of the amnesty law is still languishing in the court. Nor do I agree with the court’s legal reasoning justifying its refusal to extradite military officers to Spain in the Jesuits case.   But an appropriate critique of the court starts with analyzing its actual reasoning, and not by counting how many organizations on the right or left are upset.   

Thanks for sharing your rejoinder with us.