El Salvador’s President, Nayib Bukele, is attempting to respond to the ongoing violence in the country by declaring a state of emergency. Critics see this predominantly as a militarisation of politics and a further step towards the breakdown of democracy.
Since 27 March of this year, El Salvador has been in a state of emergency. Following a series of brutal murders, leaving 87 dead in the space of three days and for which the notorious gang Mara Salvatrucha 13 (MS-13) publicly assumed responsibility, President Nayib Bukele instructed the Parliament to declare a state of emergency for 30 days. This state has since been extended by one further month until 27 May. This extension of emergency powers was justified by the Minister for Justice and Internal Security, Gustavo Villatoro, on the grounds that even though 16,500 gang members have been arrested since April, some 70,000 criminals remain at large.
Meanwhile, the Salvadoran parliament has approved additional resources of US$80 million for the police and military. Even before this increase, spending on security accounted for 11% of the Salvadoran government’s budget (Central American Institute for Fiscal Studies, ICEFI). In 2021, this highly indebted country spent US$846 million in real terms on “security”.
Drastic curtailment of fundamental rights, detainees with no legal protection
The state of emergency allows the government to restrict four full rights: the right to the freedom of assembly and of association; the right to confidentiality of correspondence and of the inviolability of private communication without prior court approval; the right to appear before a court within 72 hours of arrest and the right to be informed of the reason for the arrest and the right to receive legal assistance and a fair trial.
The introduction of the state of emergency in March was accompanied by eight reforms, which were pushed through by the Congress, controlled by Bukele’s Nuevas Ideas party with no parliamentary debate. These reforms tighten up the existing measures available under criminal law against gangs, which have been banned since 2010. This means that in the future, membership of a gang may be punishable by 20 to 30 years’ imprisonment, while leaders and financers face sentences of 40 to 45 years. Additionally, children over the age of 12 may now also be sentenced to up to 10 years’ imprisonment, up to 20 in the case of those over the age of 16. Those arrested on suspicion of being a gang member are not entitled to be released after two years of custody, even if there is no evidence of any criminal act or they have been acquitted, but remain in custody until all legal channels have been exhausted. Trials may also be heard in the absence of the accused and judges will be given a right of anonymity for safety reasons.
Many human rights organisations and legal experts have warned that the reforms brought in under emergency procedures, particularly those concerning defendants below the age of majority, are at odds with both international and national standards. The United Nations Children’s Fund (UNICEF) published a statement urging the Bukele government to repeal the criminal law reforms that legalise the detainment and sentencing of minors, as these do not align with the measures of the UN Convention on the Rights of the Child. It also queries the need for a state of emergency in the first place, as the government already has sufficient powers to pursue criminal gangs under the existing criminal-law toolbox.
According to reports published by the Salvadoran police on its official Twitter account, 22,754 people were arrested up to 2 May. There have been many indications since then that there has not just been a series of wrongful arrests of mostly young men, but of serious human rights breaches. By the end of April, human rights organisations Human Rights Watch and Cristosal had been informed of more than 160 arbitrary arrests and of brutal violence against detainees..According to data provided by the Minister of Justice and Public Security, at least eleven people have died in custody under unexplained circumstances.
Even before the latest wave of arrests, the Salvadoran prisons were desperately overcrowded: according to the national prison administration, there were 39,145 prisoners in the country in August 2021. The rate of 549 people in prison for every 100,000 people in the country is second only to the USA in the Americas. As long ago as early 2020, pictures of gang members crammed like sardines into prison cells caused outrage around the world. In recent weeks, the government has once again published pictures of half-naked, tattooed men – indicating that such “scum” have no human rights and that the prisoners would be denied food if the wave of murders continued. Regional and international human rights organisations expressing their concerns at the precarious conditions inside prisons are dismissed out of hand as gang sympathisers. On 28 March, for instance, President Bukele tweeted: “These international NGO scamps claim to watch over human rights, but they are not interested in the victims, they only defend murderers, as if they enjoyed watching the bloodbaths” (translation taken from then24.com). However, much of the population entirely approves of this atavistic populist reading of criminal war. According to a Cid-Gallup survey from April 2022, 91% of respondents are in favour of the measures taken against gang members.
“Don’t talk about the maras”: a gagging order for “uncomfortable” journalism
A reform criminalising the creation and distributions of texts, graphics or graffiti “reproducing and transmitting messages from or presumably from gangs that could generate anxiety and panic in the general population” has also attracted strong criticism from beyond the borders of the country. In a tweet, president Bukele likened the measure to the prohibition under German criminal law on Nazi symbols, but this misses the point that unlike the German legislation, the reform of the Salvadoran law is worded so vaguely and ambiguously that it could be interpreted as covering all forms of news reporting on gangs. Journalists writing about maras face up to 15 years’ imprisonment. The Salvadoran association of journalists, APES, believes that this is not a mere error of form, but deliberate censorship and effectively a gagging order. The reform is predominantly intended to criminalise any reports in the independent press on secret negotiations between the government and the gangs and prevent any information on the release of senior gang members wanted for extradition on order of US courts coming to light.
The suspension of the confidentiality of private correspondence and authorisation of telephone tapping without a court order have also come in for harsh criticism. At the beginning of the year, the Bukele hit the headlines when it came out that several dozen journalists, particularly those belonging to the El Faro news pool, were listened into for months using Pegasus spyware. The government reacted quickly, pushing through a law on “digital agents” that retrospectively legalised the unlawful spying.
Journalists branded “information terrorists”
The work of the independent journalist teams of El Faro has been a thorn in the side of the Bukele government for years. While the government came to power on the back of an explicit promise of a major crackdown to bring organised crime and gang brutality under control, El Faro found out that Bukele’s government – like its predecessors from all across the political spectrum – was in secret talks with the gang leaders. El Faro reports from September 2020 and August 2021 disclose official documents and photographs to prove that the government in office has been negotiating with the imprisoned leaders of the maras virtually since the very beginning of its term. A report published on the BBC World Service in late April 2022 confirmed these meetings by means of statements made by the Barrio 18-Sureños gang. Research revealed that the ranflas (the national ‘board of directors’ of the gangs) were offered shorter sentences and financial incentives in return for their promise to reduce the murder rate and support the government party in the elections of early 2021. This prompted US Department of State to sanction the two chief negotiators on behalf of the government: prisons director and Deputy Minister for Security and Justice, Osiris Luna, and the director of the Tejido Social programme, Carlos Marroquin. In its most recent investigation, published on May, 17, El Faro provided additional information and audios which confirm that the bloodbath committed in March was the brutal reaction of the infamous MS-13 gang after the failure of the secret talks and that one of its leaders, Helmer Canales Rivera, alias “Crook,” was released from prison and left the country despite pending criminal charges and a U.S. extradition request.
The public prosecution service of El Salvador had also begun to look into the government’s secret negotiations with the criminal gangs under the leadership of the former public prosecutor, Raúl Melara. However, the investigations ended abruptly in early May 2021, when the government had Melara replaced by the public prosecutor Rodolfo Delgado, a man loyal to the government, together with all the judges of the Constitutional Court, in an unconstitutional night vote that had the blessing of the parliament. The responsibility for the incident, which has become known as the Catedral case, remained in the hands of Delgado, who dissolved the Special Anti-Mafia group GEA and went as far as to take legal action against the seven public prosecutors who investigated the allegations of corruption against the Bukele government. Despite the extensive evidence and damning statements made by the ousted special investigator Germán Arriaza to the news agency Reuters, the government has steadfastly denied that any negotiations took place with the criminal gangs and has threatened the El Faro journalists, who have been branded “information terrorists”, with court. These also include the brothers Oscar and Juan José Martínez, whose book “El niño de Hollywood: una historia personal de la mara salvatrucha” provides a very bleak biographical view of the political economy of the power structures of the gangs. Several journalists had to leave the country after receiving threats of criminal persecution and death threats.
The state of emergency as a pretext for removing controls on public procurement procedures…
The extension of the state of emergency in April was accompanied by a reform enabling the government once again to waive the legal rules on the award of public procurement contracts. This is reminiscent of the situation in 2020, when the government removed all controls on public procurement at the outset of the pandemic, sending corruption soaring. According to the – now dismissed – public prosecutors, there were irregularities with two thirds of all public purchases by the end of that year. A report by El Faro revealed that the man who brokered the pact with the gangs, Director of Penal Centres Osiris Luna, used the emergency powers during the pandemic to misappropriate US$1.6 million intended for food aid. Even before then, there had been considerable inroads into the powers of the Institute for Access to Public Information (IAIP). The transparency officer Liduvina Escobar fled into exile along with her family following threats.
… and silencing civil society
Unfortunately, therefore, everything indicates that the rapid dismantling of the structures and controls of the rule of law in El Salvador will continue to be accelerated under the Bukele government and that the state of emergency will become the norm. After Nicaragua and Venezuela, El Salvador is the country that has seen the most drastic regression of its democratic institutions and rights, according to the latest report by Freedom House. Having ridden roughshod over the judicial system and public prosecutor’s office on 1 May, it was the turn of independent journalism and civil-society organisations to be the target of intimidation campaigns. Admittedly, a ‘foreign agent’ law aiming to silence the press and civil society was successfully shelved (at least temporarily) following a massive international protest, but the criminalisation of civil-society organisations is a rising trend. At the end of April, Employment Minister Roland Castro urged the trade unions to forego their traditional demonstrations to mark International Workers’ Day. Any marches would be seen as gang sympathisers. This attempt at intimidation was only a partial success. The Minister was ultimately unable to block the demonstrations, but turnout was considerably lower than the previous year. The popularity of the President and his party has been barely dented so far, which speaks volumes about the alarming downfall of democratic culture in a post-civil war society characterised by violence and poverty.