Why is consecutive reelection unconstitutional in El Salvador?
The days leading up to and following Nayib Bukele's candidacy application submission to the Supreme Electoral Tribunal (TSE) saw a broad cross-section of Salvadorans submit petitions calling on the tribunal magistrates to deny Nayib Bukele’s candidacy for reelection on the grounds that it is unconstitutional. Others submitted their petitions following the TSE's vote to approve his candidacy, calling on the magistrates to nullify its decision.
Below, in an open letter addressed to the TSE magistrates, the Salvadoran people, and the international community, a coalition of popular social movement groups lays out the legal case that explains each article of the Constitution that prohibits Bukele’s reelection. Translation by CISPES. For a full version that includes footnotes, click here.
To the Supreme Electoral Tribunal, the Salvadoran People and the
LADIES AND GENTLEMEN
MAGISTRATES OF THE SUPREME ELECTORAL TRIBUNAL OF THE REPUBLIC OF EL SALVADOR
Maximum electoral authority, Art. 208 of the Constitution.
Autonomous Body, Art. 40 of the Electoral Code.
The undersigned organizations of this OPEN LETTER:
Popular Resistance and Rebellion Bloc - BRP,
Movement for Land Defense - MDT,
Committee of Relatives of Political Prisoners - COFAPPES,
Salvadoran Left Movement - MIS,
Critical Thought University Movement - MUPC.
Exercising our Constitutionally-recognized rights and duties as citizens, we address this OPEN LETTER to you to publicly request and demand that you, in the exercise of your authority as the supreme authority on electoral matters, declare inadmissible the candidacy of the citizen Nayib Armando Bukele Ortez for President of the Republic.
According to the Constitution of the Republic, it is prohibited for the President of the Republic to register as a candidate for reelection. The Constitution is so clear on this matter that if the President of the Republic registers as a candidate for reelection, the president loses his rights as a citizen, according to the provisions of article 75 ordinal 4°.
UNCONSTITUTIONALITY OF THE CANDIDACY OF MR. NAYIB ARMANDO BUKELE ORTEZ:
The President of the Republic registered as candidate for the presidency of the Republic in the internal elections of the Nuevas Ideas party. This political party has already started to campaign in his favor through twitter and other social media, but he cannot run for a second term. This act is prohibited by the Constitution in accordance with the provisions of articles 75, section 4; 88; 131, section 16; 152, section 1; 154; 248, section 3; and 268 CN with respect to Drafting Commission’s Consolidated Report.
In the following paragraphs, we explain the reasons why the eventual candidacy registration of the current president, Mr. Nayib Armando Bukele Ortez, would violate the Constitution of the Republic of El Salvador.
GROUNDS OF UNCONSTITUTIONALITY:
1. The principle of alternation in the exercise of the Presidency limits the term of office to 5 years (and not a single day more) without the possibility of reelection, as established by the Constituent Power, and the Supreme Electoral Tribunal must comply with this fundamental principle.
Article 154 of the Constitution of the Republic of El Salvador stipulates the following: “Art. 154- The presidential term shall be five years and shall begin and end on the first day of June, without the person who has exercised the Presidency being able to continue in office for one more day.”
This constitutional provision implies that no person may hold the office of the Presidency for more than the five year term. The article does not establish the possibility of reelection, whereas for other positions the Constitution does expressly establish it. In accordance with this provision, the Supreme Electoral Tribunal is not permitted to register the current president as a candidate, because the Supreme Electoral Tribunal would also be complicit in violating the Constitution of the Republic of El Salvador.
The constitutional provision, Art. 154 CN, must be interpreted following the Principle of Constitutional Unity. This interpretive standard indicates that a provision should not be analyzed in isolation, therefore the following articles of the Constitution should be taken into account: 75, section 4 (which penalizes any person who promotes immediate reelection); 88 (which indicates that the people have the right to insurrection when the principle of alternation in the exercise of the Presidency is violated; 131, section 16 (which states that the Legislative Assembly is required to not recognize any person who intends to occupy the Presidency for two consecutive terms); 152, section 1 (this provision was already clarified by the Constituent Power in the Consolidated Report of the Drafting Commission where it establishes the grounds for disqualification and incompatibility for a presidential candidate); and 248, section 4 (this provision prohibits the amendment of the aforementioned provisions relating to the principle of alternation in the exercise of office).
The provisions are listed below.
Article 75- “Any individual who signs statements or proclamations to promote or support the reelection or continuation of the President of the Republic, or employs direct means to that end, shall lose citizenship rights.”
Article 88: “The alternation in the exercise of the Presidency of the Republic is indispensable for the preservation of the form of government and political system that has been established. The violation of this rule mandates insurrection.”
Article 131, section 16: “It is incumbent upon the Legislative Assembly: (...) 16. The mandatory disregarding of the President of the Republic or the person acting in their stead when their constitutional term of office has expired and they continue in office. In such a case, if there is no person legally appointed for the exercise of the Presidency, it shall appoint a Provisional President.”
Article 152, section 1: “The following people may not be candidates for President of the Republic: 1.- Those who have served as President of the Republic for more than six months, whether consecutive or not, during the immediately preceding period, or within the last six months prior to the beginning of the presidential term.”
Article 248, clause 4: The articles of this Constitution that pertain to the form and system of government, the territory of the Republic, and to the alternation in the exercise of the Presidency of the Republic".
From the reading of the transcribed provisions, the principle of alternation in the exercise of the Presidency requires that no person may hold the office of President for two consecutive terms. It also prohibits a person from"remaining" in office, as in the case of dictator Maximiliano Hernández Martínez; It also prohibits a person who has served as President for six months, consecutive or not, (as is the case of the current President) from registering as a candidate.
In this context, the Constitution categorically prohibits the exercise of the Presidency in two consecutive terms, a condition that cannot be modified, even by a constitutional reform or amendment; Therefore, the Constituent Powers, such as the Supreme Electoral Tribunal, must carry out their duties and in the event that a person who has held the office of president for more than six consecutive months intends to run as a candidate, this candidacy must be disqualified because it is within the scope of the provisions of article 152, section 1 and therefore cannot even be a presidential candidate.
Considering that the Supreme Electoral Tribunal is a product of the constitutional reform that took place after the Peace Accords, signed in the Chapultepec Castle, the magistrates of this Tribunal are obliged to stop any attempt of the current president to remain in power, as the Constitution forbids it. This prohibition is a response to our country's history, since the last president who was reelected was the dictator Maximiliano Hernández Martínez. In his first reelection he used a loophole and remained in office without holding any election. He then wrote a new Constitution and argued that “for this one time only” he could be reelected, which is why Article 75, section 4 is so categorical in its prohibition of the support of immediate reelection by means of any act, proclamation, or statement, in addition to prohibiting support for the “continuation of the President,” as well as any “direct means to that end.”
In this case, this situation is taking place since the attempt to register as a candidate constitutes a “direct means to that end.” Therefore, the Supreme Electoral Tribunal (TSE) must disqualify the President of the Republic in the event of an application before the TSE to register him as a candidate.
We emphasize that the TSE should not allow itself to violate the Constitution. In fact, Article 7, Clause h) of the Electoral Code declares the following conducts as a disqualification of the right to vote:
"Disqualifications. Art. 7.-The following may not exercise the right to vote: (...) h) Any individual who signs statements or proclamations to promote or support the reelection or continuation of the President of the Republic, or employs direct means to that end.”
According to this provision, if the current President were to attempt to register as a candidate, he would be disqualified from exercising his suffrage rights, both the right to vote and the right to run for office; therefore, he must be disqualified by the Supreme Electoral Tribunal.
2. The Supreme Electoral Tribunal has a constitutional obligation to disqualify any person implicated in the grounds for disqualification established in Article 152 of the Constitution.
The Court must disqualify the President of the Republic ex officio because if he employs a direct means aimed at reelection, this citizen would be disqualified from exercising his right to suffrage, both in its active and passive forms (voting and running for office). The Court must then advance the candidate in order of succession in accordance with the provisions of the final section of Article 269 of the Electoral Code.
3. Historically in El Salvador, authoritarianism has tried to hold onto political power and the political and economic elite has allowed it, leading to serious violations of human rights.
Pursuant to the aforementioned arguments and in accordance with Article 183 of the Constitution, WE REQUEST AND DEMAND that Mr. Nayib Armando Bukele Ortez be disqualified on the grounds established by the Constitution that disqualify him from running for office, in accordance with Articles 75, section 4; 88; 131, section 16; 152, section 1; 154; 248, section 3; and 268.
El Salvador, October 27, 2023