Proposed constitutional changes in El Salvador

For months now, a special committee in El Salvador led by vice president Felix Ulloa has been working on drafting a set of reforms to the country's constitution.   The meetings have been held behind closed doors, and although some details had been leaking out, much was unknown about what would be proposed. 

The completed draft of the proposed reforms to the constitution are now public.  The changes are sweeping, with revisions, deletions or replacements of some 215 articles of the 274-article constitution.   While there is much to study in the proposal, and I do not purport to have had the chance to review the document fully, at this point I can say that many changes are remarkably progressive.   If the proposal were to be adopted and the courts and government were to fully implement and respect the rights created by this document, it would be a positive step forward for the country. (That's a big "if").

(For those wishing to study the proposed reforms in detail, you can review the full proposal in its original Spanish here.   You can see the existing 1983 Constitution as amended here in Spanish.   For ease of reviewing the changes, I have put the existing Constitution and the proposed reforms side-by-side in this document.   Finally, I ran the side-by-side comparison through Google Translate for a pretty good, but imperfect, translation for English speakers.) 

One set of changes involves an expansion of individual rights recognized by the constitution.  There is a broad expansion of the definition of human rights protected by the Constitution:

Everyone has the right individually and collectively to promote and defend human rights and fundamental freedoms, and to be protected in the conservation and defense of them, at the local, national, regional and international levels and to ensure compliance with the Constitution and other regulations. The norms related to human rights are of direct application and demand; they must be interpreted, providing people with the broadest protection. Said interpretation must be carried out in accordance with this Constitution, with the international treaties on the matter and the decisions and resolutions adopted by the bodies in charge of its application. All authorities, within the scope of their powers, have the obligation to promote, respect, protect and guarantee fundamental rights in accordance with the principles of universality, interdependence, indivisibility and progressivity. Consequently, the State must prevent, investigate, punish and repair violations of fundamental rights, in the terms established by law. (New Art. 2)

The reforms also broaden protections of persons from discrimination on many bases, including for the first time sexual orientation, gender identity and disability. Whereas the previous constitution only prevented discrimination on the basis of race, religion, nationality or sex, the new provisions would preclude discrimination based on:

[E]thnic origin, nationality, sex, sexual orientation, gender identity and expression, age, physical or mental disabilities, social condition, health conditions, religion, opinions, family status, or any other personal condition or circumstance is prohibited. that implies a distinction that is harmful to human dignity and that threatens, diminishes or impairs the recognition, promotion, guarantee and full enjoyment of the rights recognized in this Constitution and, any other unforeseen circumstance, in accordance with international human rights treaties. It is an obligation of the State to promote and adopt the necessary measures to equalize people in situations of inequality and eradicate the structural conditions that place individuals, groups of people or populations in conditions of vulnerability and marginalization. The right to mobility and universal accessibility is guaranteed. (New Art. 3)

In provisions related to the family, the proposed reforms do not explicitly permit same sex unions, but also do not forbid them. (New Art. 32)

In a country with a current absolute ban on abortion, the proposals would leave open the possibility of legislation to make possible abortion in certain circumstances by recognizing competing rights of the pregnant woman:

Likewise, [the State] recognizes every human being in general as a human person from the moment of conception and in turn recognizes the right to life of both the unborn and the pregnant woman. In case of collision of rights the law will establish the appropriate measure. (New Art. 1)

Under the proposed reforms, the Roman Catholic church loses its status as the only religion formally acknowledged by the Constitution.   Instead, all religions generally are recognized as having legal status.   The reforms add a right to conscientious objection. (New Arts. 25,26)

There are also explicit new provisions on the right to privacy and the right to access to information (New Art. 6).

There is also a recognition of the human right to water, something which has been vigorously advocated by environmental advocates over the past decade.

It is the obligation of the State to create public policies and laws that guarantee safe, sufficient, accessible and affordable water to all inhabitants, as well as the use and preservation of water resources, and that guarantee a healthy and comprehensive environment for their development and well-being, ensuring that all the inhabitants have access to them, without discrimination of any kind. Water and air are public goods. The right to quality water and air that does not represent any type of risk to human health or the environment is recognized. (New Art. 69 bis.)

In addition to the expansion of recognized individual rights, there are also a series of changes proposed to restructure elements of Salvadoran government.  Five agencies are listed as having oversight responsibilities over the government:  

• Comptroller General (newly created)
• Human Rights Ombudsman (continuing)
• Consumer Protection (raised to constitutional level)
• Institute for Access to Public Information (raised to constitutional level)
• Government Ethics Tribunal (raised to constitutional level)

The Supreme Electoral Tribunal (TSE) is abolished and replaced with a new National Electoral Institute in charge of running elections.  The Court of Accounts is abolished and its functions folded into the Comptroller General.

The Supreme Judicial Court is reorganized with the “Probidad” function, or public integrity, removed from the Court and placed within the office of the Comptroller General.  The Constitutional Chamber (Sala Constitucional) is moved out of the Supreme Judicial Court and becomes its own entity, the Constitutional Tribunal, and magistrates there will no longer have administrative tasks over the legal system.  Added to the Supreme Judicial Court is an Electoral Chamber which will hear election related disputes, a role which previously fell to the TSE.

The terms in office of the President and Vice President, the Attorney General and the Human Rights Ombudsman are extended to six years from five for the president and vice president and from three years for the Attorney General and Human Rights Ombudsman.  None of these officials may be re-elected until they have been out of office for one term. 

The proposed Constitutional reforms also contain new provisions for direct democracy by the citizens:

The right of the electoral body to express itself through citizen consultations is recognized, these being the plebiscite, the referendum, the revocation of mandate and citizen initiatives. A citizen consultation law will establish the nature, requirements and procedures for the exercise of the rights recognized in this article. In no case will these mechanisms serve to extend the presidential mandate or to allow the immediate reelection of the person who holds the presidency.   (New Art. 83)

These direct democracy provisions include the ability of the citizens to recall the president. (New Art. 131).

The current Constitution must be amended by a simple majority vote of the Legislative Assembly which is then ratified by a 2/3 vote of the next Legislative Assembly to come into office.  Vice President Ulloa has stated this process will be followed with these reforms.   Among the reforms to be voted on will be a new amendment process in which an amendment can be adopted by a simple majority vote in the Legislative Assembly followed by ratification through popular referendum.  (New Art. 248). 

Certainly in coming days constitutional law experts in El Salvador will identify other important changes and language nuances in the draft document.  It is not entirely clear what process will be followed with this quantity of amendments.   Will the Legislative Assembly just have a single vote on the entire package?   Will it have multiple votes on individual articles or groups of articles?   For example, if a deputy favored including the human right to water but opposed giving the president a six year term, will they be able to vote for one and not the other?

Currently this draft is expected to be delivered officially to president Bukele on September 15, the 200th anniversary of Central American independence from Spain.