Supreme Court Weighs Constitutionality of New “National Reconciliation Law”

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A controversial new ‘Transitional Justice, Reparation and National Reconciliation Law’ approved by right-wing parties in the Legislative Assembly in February is currently under discussion in the Supreme Court of El Salvador. If the law gets a green light in the Constitutional Chamber of the Supreme Court, perpetrators of wartime crimes could see their sentences partially commuted if they confess their crimes, ask for forgiveness and collaborate in the discovery of new evidence. While the law does include some provisions that respond to victims' demands, victims association and international allies have decried the law as an “impunity pact” between conservatives in the legislature and perpetrators of war crimes and crimes against humanity.

In 2016, El Salvador’s Supreme Court of Justice declared the 1993 General Amnesty Law unconstitutional and ordered the legislature to draft up a new law that would respond to the demands for justice and bring perpetrators of human rights abuses to trial. The Political Commission of the Legislative Assembly, tasked with drafting a bill that would meet the parameters set by the Supreme Court, sought to merge the proposal presented by victims organizations with a proposal by legislators. In response to massive protests last May that halted a vote on a bill similarly deemed a new ‘Amnesty Law,’ key aspects of the victims’ rights proposal were included in the current bill.

To learn more about the National Reconciliation Law and prior attempts to approve a law in the legislature, please check out our Special Report, here.

Right-wing parties in the Legislative Assembly, including the Nationalist Republican Alliance (ARENA), Christian Democratic Party (PDC) and National Coalition Party (PCN) passed the National Reconciliation Law with 44 votes on February 26, 2020. Eleven votes against the law were cast by president's current party, the right-wing Grand Alliance for National Unity (GANA), and some renegade members of ARENA, revealing a deep schism within the Right. Meanwhile, legislators from the leftist Farabundo Martí National Liberation Front (FMLN) refused to participate in the vote, arguing that doing so would go against victims demands for justice and reparations.

President Bukele immediately vetoed the law, claiming it violated the constitution. However, the Supreme Court of Justice is the only body recognized to resolve if a law is unconstitutional, which is why the Constitutional Chamber will now decide whether the law meets the standards it laid out in its 2016 ruling overturning the 1993 Amnesty Law.

Saúl Baños, director of the Foundation of Studies for the Application of Law (FESPAD), a leading human rights watchdog group in El Salvador, reiterated that the Constitutional Chamber of the Supreme Court “must unravel this limbo in which we are in. How? By calling the entities obliged to be held accountable and to know which [of the parameters established in the judgment] have been fulfilled." FESPAD and other human rights organizations have petitioned the Supreme Court to summon the deputies of the Legislative Assembly so that they can explain the content of the law, which had almost no public debate prior to the vote.

The approved National Reconciliation Law would prohibit the construction of monuments in the memory of war criminals and would create a national registry for victims, a reparations fund and a museum. However, elements that victims thought they had made clear were unacceptable were ultimately included in the law, such as limits on what and for how long the Attorney General can investigate. The law would restrict the Attorney General of El Salvador to investigating cases that have been filed by a victim or a civil society organization and for a maximum of a year and a half.

In a joint press conference, the Commission for Human Rights of El Salvador (CDHES), Febe Elizabeth Velásquez Association (ASOFEBE) and the Committee of Relatives of Victims of Human Rights Violations "Marianella García Villas" (CODEFAM), spoke out against the approval of the controversial National Reconciliation Law. Ricardo Pérez, representative of ASOFEBE, expressed, “There was no sincere intent to benefit or do justice to the victims of the civil war, but rather to reimpose the Amnesty Act of 1993, in which the offenders were favored with impunity for the serious human rights violations they committed.”

On February 28th, President Nayib Bukele vetoed the bill, saying “This law is a fraud in its own name, because this is not a National Reconciliation law, but rather an amnesty law, whose objective is to reduce penalties for war criminals.” Though the President rejected the law, organizations urged him not to politicize the matter and expressed that they were still concerned by his suspension of Executive Decree 204, issued by FMLN president Mauricio Funes in 2013, that benefitted victims of human rights violations during the armed conflict by providing access to healthcare, education and food security, in addition to recognition of the truth and monetary support.

While many celebrated the President for essentially blocking the law, human rights defenders have also expressed concern regarding his response to other petitions that could lead to truth and justice for wartime victims. Human rights organizations have been calling on the government to make public military records from the war time and have been repeatedly told that those do not exist or were destroyed. When Bukele was a presidential candidate, he promised he would make them public, but now he is following the same line as previous governments.

For example, on March 6, the Institute of Access to Public Information (IAIP), accompanied by representatives from the University of El Salvador, attempted to inspect the records of the Armed Forces to learn more about military operations carried out against the university during the war. In response to this action, Nayib Bukele slammed the Institute, calling it the “last bastion of the Farabundo Martí National Liberation Front.” However, the IAIP has long requested access to the files of the Armed Forces, including when the FMLN held the presidency.

For the coordinator of the Justice Processes Team of the UCA Institute of Human Rights (IDHUCA), Arnau Baulenas Bardia, President Bukele is no ally of victims from the civil war, stating, “In recent weeks it has become clear that the President does not care about victims or historical memory. If [he] had a minimum of consideration towards them, [he] would cease to give power and prominence to the Armed Forces, an institution designated to perpetrate war crimes and serious human rights violations, and would order it to open and deliver all military archives.”

In a recent interview, Amanda Castro from the victims association ‘Víctimas Demandantes’ expressed that the President’s veto is undermined by his use of the military to address societal issues, criticizing, “What we have seen from this president is more weapons, more soldiers on the street, which in no way corresponds to the guarantees of non-repetition.” After nearly four years since the Supreme Court of El Salvador overturned the widely-criticized 1993 ‘Amnesty Law,’ victims and human rights organizations are disappointed that their 40-year search for justice continues.

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