—Manuel Adrian Merino Menjivar, Professor of Constitutional Law, Universidad Gerardo Barrios, El Salvador
In Ulysses Unbound, Jon Elster understands constitutions as a precommitment made by the people to themselves. According to the myth on which he bases his metaphor, when Ulysses returned from the Trojan War, he had to pass through the Isle of Sirens, for which he had been warned by the goddess Circe of the force of the spell of their song and thus, arrived at that place, his travel companions had to cover his ears with wax and tie him hand and foot to the mast of the ship so that he would not succumb to the song of the sirens. The solution worked; nontheless, when the time came, Ulyses begged to be untied, indicating that had he not been tied up he would have yielded to their singing.
In the metaphor, the constitutions represent that mast to which the people are tied at a certain moment and that prevent the fundamental precommitments adopted in them from being undone in a blink of an eye. Within these fundamental precommitments are, with main relevance, the eternity clauses. The eternity clauses are those constitutional contents that the primary constituent power considered unamendable, that is, a precommitment that cannot be dissolved except through a revolutionary action, such as the promulgation of a new Constitution.
In the case of El Salvador, one of those eternity clauses is found in article 248 of the Constitution, and refers to the alternation in the exercise of the presidency of the republic. For the Salvadoran primary constituent power, the prohibition that the president could be reelected immediately and continuously was a fundamental decision. Another series of provisions confirm it. Article 152.1 of the Constitution maintains that a person who has held the presidency for more than six months, consecutive or not, during the immediately preceding period or within the last six months prior to the beginning of the presidential term, cannot be a candidate for president.
The article 88 of the Constitution maintains that the alternation in the exercise of the presidency of the republic is essential for the maintenance of the form of government and the political system, and that the violation of said norm forces the insurrection. On the other hand, article 75.4 of the Constitution contemplates that the fact of promoting or encouraging presidential reelection is a cause of loss of political rights. Finally, the Constitutional Chamber of the Supreme Court had interpreted in its jurisprudence that the prohibition of immediate presidential reelection covered not only leaving a presidential term in between, but two, since the prohibition includes the nomination as a candidate in the period immediately following the one in which it was exercised the presidency.
Apparently, and from a strictly normative point of view, all the avenues of access to presidential reelection were constitutionally closed. Nontheless, in its latest judgment, the new members of the Constitutional Chamber have reinterpreted the previous criteria to change it completely. In the opinion of the “new Constitutional Chamber”, article 152.1 of the Constitution what actually prohibits is that whoever has already been president in a first period, and being in a second period, can run for a third period. Consequently, reelection is not prohibited for those who, being in a first term of the presidency, decide to opt for a second term. If it seems confusing, that’s because it is.
I will try to graph it as follows: P is president at time t₁, therefore, when the Constitution speaks of the “immediately preceding period”, it refers to time t₀, that is, when P was not yet president. Hence, P can run for his reelection at time t₂. Nevertheless, already being in t₂, since P was president in t₁, and that would be his “immediate previous term”, he could no longer run for a third term at time t₃.
The decision also appeals to the sovereignty of the people, who “will have among their range of options the person who at that time holds the presidency, and it is the people who decide whether to place their trust in him again or if they opt for a different option”. The problem with the previous interpretation is that it contradicts what the primary constituent power shielded through an eternity clause and another series of constitutional norms, that is, the clear intention to prohibit consecutive presidential reelection.
This interpretation, by upsetting an eternity clause, undoubtedly generates a momentous constitutional change. The aforementioned change cannot be classified as a constitutional amendment or replacement, because obviously it has not been carried out through a legislative procedure that formally alters the text of the Constitution. Although it is an informal constitutional change, it is not a constitutional mutation either, because although the change has been made via judicial interpretation, it has altered the identity or basic structure of the Constitution.
This missing link between modifying the basic structure of the Constitution without having to replace it with a new one is what Richard Albert has called constitutional dismemberment. Constitutional dismemberment implies a profound change that can affect fundamental rights, the structure or the identity of the Constitution. In the Salvadoran case, the last judgment of the Constitutional Chamber changed the basic structure of the Constitution by modifying an eternity clause, something that would be reserved to the primary constituent power and not to the ordinary power of amendment or to the judges.
In any case, according to Albert, if legal continuity is to be maintained, a change of this magnitude would require approval similar to that required to ratify the Constitution, in accordance with the principles of reciprocity and symmetry.
This is one more case in Latin America of the modification of the presidential terms limits through the interpretation of the constitutional courts (it is added to the cases of Bolivia, Costa Rica, Honduras and Nicaragua). These cases invite us to question whether the eternity clauses actually shield certain precommitments of the people or are just colorful toys (to use Llevellyn’s expression) in the constitutions that do not guarantee their unamendability. The truth is that Ulysses has been unbound, not by who bound him, but by the judges, by those judges who are called to keep his bonds fixed.
Suggested Citation: Manuel Adrian Merino Menjivar, When judges unbound Ulysses: the case of presidential reelection in El Salvador, Int’l J. Const. L. Blog, Sept. 9, 2021, at http://www.iconnectblog.com/2021/09/when-judges-unbound-ulysses-the-case-of-presidential-reelection-in-el-salvador/