—José Ignacio Hernández G., Fellow, Growth Lab-Center for International Development Harvard; Professor of Administrative Law at Universidad Católica Andrés Bello; Invited Professor, Universidad Castilla-La Mancha, and Tashkent University.
A few months after the mass removal of the constitutional judges in El Salvador, the new Constitutional Chamber of the Supreme Court issued ruling number 1-2021, dated September 3, 2021. Despite explicit constitutional prohibitions, the ruling allowed immediate presidential election. The ruling was based on a constitutional interpretation to protect popular sovereignty from deciding about the presidential reelection.
The new ruling is part of the “Constitutional authoritarian populism” in El Salvador, that is, the interpretation of the Constitution to decimate core values or the constitutional democracy; in this case, to allow immediate presidential reelection despite several constitutional prohibitions, including “unamendable provisions”. In addition, that authoritarian interpretation is based on populist rhetoric.
To explain that conclusion this post is divided into three parts. The first one explains the scope of the constitutional provisions regarding presidential reelection and the 2014 interpretation of the Constitutional Chamber. The second part will analyze ruling number 1-2021 to demonstrate how the new Constitutional Chamber, using populist rhetoric, introduced an unconstitutional “mutation” that changed provisions that cannot be amended or reformed. Finally, the post will analyze why this ruling is another example of “Constitutional authoritarian populism”.
- Presidential reelection in the El Salvador Constitution
The El Salvador Constitution includes several provisions that prohibit immediate presidential reelection. According to article 152 (1), any person that “has filled the Presidency of the Republic for more than six months, consecutive or not, during the period immediately prior to or within the last six months prior to the beginning of the presidential period“, cannot be a candidate in presidential elections. To reinforce that prohibition, Art. 75 (4) provides that the rights of citizenship are lost “by those who subscribe to acts, proclamations, or adherences to promote or support the re-election or continuation of the President of the Republic, or who employ direct means leading toward this end”. Finally, Art. 248 states that “under no circumstances, may the articles of this Constitution, which refer to the form and system of government, to the territory of the Republic, and to the principle that a President cannot succeed himself be amended” (as is also reinforced in Art. 88).
Those constitutional provisions were interpreted by the Constitution Chamber in ruling number 163-2013, dated June 25, 2014. According to that ruling, Art. 152(2) prohibits immediate presidential reelection. Because the presidential term is five years (Art. 54), reelection was only allowed after two presidential terms, that is, after ten years.
Those provisions were recently interpreted by the Inter-American Court of Human Rights Consultive Opinion number OC-28/1, dated June 7, 2021. In that opinion, the Inter-American Court concluded that unlimited presidential reelection violates the democratic principles of the Inter-American Human Rights System. To sustain that conclusion, the Court analyzed presidential reelection in the region, concluding that countries like El Salvador prohibit immediate presidential reelection (paragraph 90).
2.- The “unconstitutional mutation” adopted by the new Constitutional Chamber
In its ruling number 1-2021, the new Constitutional Chamber adopted a “binding” constitutional interpretation of Art. 152 (1), to conclude that that provision does not prohibit immediate presidential reelection. That conclusion was justified in the “literal” interpretation of the provision and its interpretation based on the protection of popular sovereignty.
According to the ruling, Art. 152 (1) applies to candidates, not to the president. Therefore, that provision cannot be interpreted as a prohibition for the president’s immediate reelection. As a result, the new Constitutional Chamber overruled ruling number 163-2013, concluding that Art. 152 (1) “refers not to prohibitions to be President, but to prohibitions to be a candidate. Any interpretation that leaves this detail out makes it is impossible for the electorate to re-elect the political option that suits them best” (page 12).
That interpretation was justified by the protection of popular sovereignty. The people -concluded the new Constitutional Chamber- have the right to decide about the president’s reelection, a right that cannot be restricted by the interpretation adopted in the ruling number 163-2013. As “the highest and last interpreter of the Constitution”, the Constitutional Chamber “must be willing to listen and attend to this demonstration of the people” (page 23).
All the other constitutional provisions regarding presidential reelection were interpreted following the “new” content of Art. 152(1). Accordingly, the loss of citizenship regulates in Art. 75 (4) applies only to those that promote presidential reelection against the new interpretation adopted by the Chamber. Also, the prohibition to reform the articles related “to the principle that a President cannot succeed himself” (Arts. 88 and 248) applies only to reforms that modify the new interpretation.
In any case, and without any reasoning, the ruling restricts the immediate president from seeking reelection for only one time (page 15). Therefore, the new interpretation does now allow unlimited presidential reelection.
The new interpretation of Art. 152 (1) is based on the artificial distinction between “presidential candidates” and the president. That distinction is artificial because the president running for reelection is a candidate for the next presidential term. Therefore, a prohibition to be a presidential candidate prevents the exercise of the presidency. The only reason why Art. 152 (1) refers to “candidate” is because it is regulating who can run for president, establishing an explicit ban to any person that acted as president in the “the period immediately prior” to the presidential term in which candidates are running for president.
The modification of the explicit meaning of Art. 152 (1) cannot be justified -as the ruling does- in the people’s powers “to decide between a range of options” (page 24). Popular sovereignty and the right to vote can only be exercised under the limits established in the Constitution regarding immediate reelection to reinforce the democratic alternativity principle (Arts. 88 and 248).
In conclusion, ruling number 1-2021 introduced an “unconstitutional mutation” that violates an explicit prohibition and contradicts core principles of constitutional democracy. That authoritarian constitutional interpretation was justified in populist rhetoric. As a result, that ruling is another example of “Constitutional authoritarian populism”.
3.- Presidential reelection and “Constitutional authoritarian populism”
Presidential terms limits tend to be in a permanent tension in Latin America, a region that has struggled between the “alternativity principle” and the institutional fragility that facilitates the emergence of “caudillos” that, once in power, tend to preserve power. That explains why, in some countries, constitutional courts have paved the way for presidential reelection when presidential reelection is limited or prohibited in the Constitution. As concluded by Landau, Roznai, and Dixon, those judicial decisions implemented “unconstitutional constitutional amendments.”
In those cases, constitutional courts are not acting as “guardians of the Constitution” but as a de facto constituent power that, through binding interpretations, modifies the Constitution. Therefore, those rulings are, in essence, authoritarian.
That is why the Inter-American Court concluded that presidential reelection is not a human right and that unlimited reelection is a violation of the Inter-American Human Rights System. The Consultive Opinion number OC-28/1 is -from a theoretical perspective- a barrier against authoritarian interpretations of constitutional courts that allow presidential reelection against the values of the Inter-American System, including the Inter-American Democratic Charter.
The ruling 1-2021 avoids a direct collision with the Consultive Opinion number OC-28/1 because it allows immediate presidential reelection for one time -prohibiting the unlimited reelection. However, it is possible to conclude, as Professor Allan Brewer-Carías has written, that the ruling 1-2021 is an unconstitutional “mutation” that contradicts the constitutional values that the Consultive Opinion tends to protect.
More specifically, four reasons allow us to assert that ruling 1-2021 is another example of the “Constitutional authoritarian-populism”:
- Ruling 1-2021 modified the content of Art. 152 (1), by asserting the artificial distinction between presidential candidates and the president. As a result, the incumbent president will be able to run for the presidency in the next presidential term. The new Constitutional Chamber usurped the power to amend the Constitution, including regarding the unamendable provisions of the presidential reelection. That usurpation hinders the separation of power and, therefore, could be deemed as authoritarian.
- The excess of judicial power is more evident when considering the Constitutional Chamber’s interpretation was not related to the case decided. The Chamber was deciding a claim against Nancy Marichel Díaz de Martínez, who purportedly supported presidential reelection against Art. 75 (4). The claim was dismissed by lack of evidence (page 3), which should have been the only ruling adopted. However, the Chamber decided, motu proprio, to interpret the constitutional provisions regarding presidential reelection, even though the Chamber cannot act “ex officio“. That excess also demonstrates the authoritarian nature of the ruling.
- The Constitutional Chamber exerted this “ex officio” power claiming that the Chamber has “the final word” in constitutional interpretation (page 7). From an institutional design perspective, constitutional courts with the power to issue final and binding interpretations of the Constitution create an exception to the separation of power doctrine that, under weak democratic institutions, can result in constitutional democratic backslides. That “formidable power” (Cappelletti) creates incentives to capture the Constitutional Chamber -as happened in May.
- The authoritarian interpretation of the Constitution was justified to protect the people. According to the Chamber, judicial review should be “be willing to listen and attend to this demonstration of the people” (page 23). The role of judicial review was modified from constitutional supremacy protection to popular sovereignty protection. Hence, that reasoning is based on populist rhetoric used to justify the authoritarian judicial review: the Constitution should be interpreted to protect the people.
The mass removal of constitutional judges and the midnight appointment of the new judges of the Constitutional Chapter was the first chapter of the Constitutional authoritarian-populism in El Salvador. The unconstitutional mutation of the immediate presidential reelection prohibition by the new Chamber is the new chapter of the authoritarian use of constitutional institutions based on the populist rhetoric. The Constitutional Chamber could have an unleashed power to issue “binding and final interpretations” of the Constitution -a power that decimates constitutional democracy and the democratic values of the Inter-American System.
Suggested citation: José Ignacio Hernández G., The Constitutional Chamber in El Salvador and Presidential Reelection: Another Case of Constitutional Authoritarian-Populism, Int’l J. Const. L. Blog, Sept. 10, 2021, at: http://www.iconnectblog.com/2021/09/the-constitutional-chamber-in-el-salvador-and-presidential-reelection-another-case-of-constitutional-authoritarian-populism/
 See https://archivo.tse.gob.sv/laip_tse/documentos/Amparos/163-2013-Inc.pdf
 See https://www.corteidh.or.cr/docs/opiniones/seriea_28_esp.pdf
 “Unlimited” presidential election is immediate presidential reelection without any constraint. Presidential reelection subject to any term limits is not “unlimited”. For instance, immediate presidential reelection for one time or presidential reelection after a period out of power are not “unlimited”.
 See https://www.jurisprudencia.gob.sv/portal/apls/2021/09/1-2021PerdidaDerechosCiudadania.pdf . Originally in Spanish.
 In strict terms, the ruling did not amend or modify the Constitution but adopted a constitutional interpretation that modifies the Constitution’s literal meaning. That is why we talked about “unconstitutional mutation”. See Brewer-Carías, Allan (2021), “El juez constitucional en El Salvador y la ilegítima mutación constitucional”, retrieved at: http://allanbrewercarias.com/wp-content/uploads/2021/09/Brewer.-Sobre-la-sentencia-de-la-SC-de-El-Salvador-en-materia-de-reeleccion-presidencial-5-9-2021.pdf
 Hernández G., José Ignacio, The Mass Removal of Constitutional Judges in El Salvador: A New Case of Constitutional Authoritarian-Populism, Int’l J. Const. L. Blog, May 14, 2021, at: http://www.iconnectblog.com/2021/05/the-mass-removal-of-constitutional-judges-in-el-salvador-a-new-case-of-constitutional-authoritarian-populism/
 Landau, David, Roznai, Yaniv and Dixon, Rosalind, “Term Limits and the Unconstitutional Constitutional Amendment Doctrine: Lessons from Latin America” In Alexander Baturo and Robert Elgie eds., Politics of Presidential Term Limits (Oxford University Press), available at FSU College of Law, Public Law Research Paper No. 887, Available at SSRN: https://ssrn.com/abstract=3208187
 Brewer-Carías, Allan (2021), “El juez constitucional en El Salvador y la ilegítima mutación constitucional”,
 We use the expression “constitutional courts” in a broader sense to include the tribunals with the power to exert judicial review according to the European model (a “concentrated” judicial review). From a comparative perspective, those tribunals could be organized as chambers of the supreme tribunal, as happens in El Salvador. Because constitutional courts exert a formidable power, they could be used as an instrument to pursue authoritarian decisions. See Ginsburg, Tom, and Tamir, Moustafa (2008), Rule by Law: The Politics of Courts in Authoritarian Regimes, Cambridge: Cambridge University Press, 1.
 Cappelletti, Mauro (1980), “El formidable problema del control judicial y la contribución del análisis comparado”, in Revista de Estudios Políticos N° 13, 1980, 61.