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The
institutional reform proposal of FUSADES
The Salvadoran Foundation for the
Economic and the Social Development (FUSADES, in Spanish) recently presented
its project of reforms for El Salvador, aiming to shape the “foundations” of
the country’s development. The “Economic and social strategy 2004-2009” –the
name of the document edited by FUSADES- deserves to be analyzed, and it is
necessary to reflect about the different proposals included in it. However,
this document should be placed in the right context. It has to be read as
just another proposal. It does not have to be tagged as the best proposal
beforehand, and definitively not as a must have for all of the presidential
candidates.
All of the political groups of the country have the tendency to present
their proposals at the sound of the drums, not only by raving about the
advantages of their own plan but also by discrediting those rivals who do
not agree with their analysis or with their perspectives to resolve the
national problems. The political authorities chosen by the Salvadorans are
responsible for actually executing the strategies for the national
development, although that does not mean that they have to overlook the
proposals that come from other groups or from other social movements. To
outline the most important role of the elected authorities allows them to
bring out the national character of their task. They are the ones who, once
their administrative duties are over, have to respond to the citizens for
the decisions that they made and for those that they did not make during
their administrative period.
This article will analyze the document presented by FUSADES in reference to
the legitimacy of the political representation system and the judicial
system. As for the judicial system, the aforementioned document begins with
a convincing observation; “the judicial system is one of the most
prestigious institutions”. This is the feeling shared by the international
investors and the general public. This idea leads us to speak about the lack
of legitimacy of the judicial system. The excessive politicization of the
Supreme Court of Justice is one of the consequences of this situation.
Therefore, there are several proposals about the necessary modifications to
the regulations that are followed to designate the magistrates of the
maximum court.
Although most people could regularly agree with the observations that
FUSADES made about the deficiencies of the Salvadoran Judicial System, it is
necessary to make several comments about this subject. In the first place,
it is wrong to say that the politicized process that is usually followed to
designate the Supreme Court’s judges is at the root of its flaws. Because of
the nature of its position, the designation of the judges cannot be detached
from politics. On the contrary, in this case such politicization is a
guarantee for the society. In addition, the election mechanism used in the
country (the congressmen choose the magistrates of the maximum court through
a qualified majority) seems to be more democratic than other mechanisms. In
other nations, the magistrates are only elected by the President.
This is not about defending the judges or the political parties. This is
about avoiding the temptation to demonize politics, something that is very
fashionable nowadays among the businessmen. A person can agree with the idea
to include both the private and the public institutions that work for the
human rights in the selection of the judges, and define a more transparent
mechanism to evaluate their performance. In addition, it would be necessary
to discuss the convenience to name the supreme judges for a longer period.
For instance, they could be named judges for a period of ten years without
the possibility to be chosen for a second period. Or they could also be
judges for as long as they live. At the same time the principle of a
rotational system presidency could be added to the legislation, and the
decision could be taken by the votes of the Court. This kind of reforms
would allow to increase the independence of the judges of the maximum court,
at the same time simpler and more transparent procedures are included to
evaluate and eventually sanction those judges who commit crimes.
This discussion leads to the issue of the immunity of the judges. The
arguments about the ”excessive” immunity that allegedly the judges would
have is out of context. The document seems to confuse the dysfunctional
cases of the evaluation process of the judges with their immunity. In this
country this idea is usually used to discredit those who do not share the
criteria of the right-wing –just as it was revealed by the protests against
the liberation of the delinquents that were previously condemned by the
reporters.
On the other hand, the document prepared by FUSADES does not criticize the
mechanism that is followed to designate the Attorney General nor the
performance of the institution. The designation of the person responsible
for the Comptroller’s Office and the performance of this institution are not
mentioned either. However, many people know that these organizations have a
lot to do with the deterioration of the judicial system, in the first case,
and with the acceptance of corruption, in the second case.
It would be convenient to notice what are the imputations that FUSADES made
about the performance of the political system. It is very probable that most
Salvadorans agree with the critics about the performance of the Supreme
Electoral Tribunal and the accurate proposals to reorganize it correctly. At
the same time, the population has several observations about the exclusion
of the Salvadorans who live abroad. In reference to the Legislative Organ,
the document “observes” that “the Salvadorans have an unusually negative
opinion about the Legislative Assembly and about the way in which democracy
works”. The document proposes to set aside the proportional representation
system with closed lists that this country uses at present, in order to
adopt an open list method through which the electorate will be able to
decide the place that the candidates should occupy in the list. Another
proposal is to replace the electoral quotient formula with a dividing
formula, as proposed by D’Hont. A transformation of this kind, according to
FUSADES “would lead to a better proportionality between votes and seats in
the legislative body, and would prevent the parties from exploiting the
small constituencies to maximize its representation with a minimum amount of
votes”.
It is also necessary to consider other aspects, for instance, how pertinent
it is to discuss the proportionality of the Salvadoran electoral system.
Although this article is not analyzing the details of the effects that the
new electoral formula proposed by FUSADES could have, it is necessary to
reflect about this subject. In the first place, it is impossible to forget
that there are no electoral formulas that can reflect a perfect
proportionality between votes and legislative seats. We should not talk
about the need of a proportional electoral formula for El Salvador. We
should to talk about a formula with a higher level of proportionality, in
order to correct the problems.
The proposal made by FUSADES –to go from Hare’s formula to the one proposed
by D’Hont- creates a problem. As it is well known, in matters of the
electoral system, D’Hont acknowledges the work of the large parties, while
Hare tends to appreciate the work of the small parties. In other words, with
the use of the formula proposed by D’Hont and approved by FUSADES, ARENA and
the FMLN might be the parties that will receive most of the benefits. While,
on the contrary, the smallest parties will be negatively accepted. Under
this logic, it is convenient to wonder about the intentions of the authors
that formulate this proposal. Is this about removing the small parties from
the national political life and favor the two-party system?
If that is the objective, it is necessary to reverse this disproportional
tendency in favor of the largest parties. However, it is important to
observe that contrary to what the aforementioned argument sustains, in these
circumstances the third party would hardly disappear. It might be necessary
to wonder if the balance is eventually turned in favor of the large parties
this will not go against the proportionality principle dictated by the
Constitution. Beyond the present vices of the system, and the way in which
the third party has behaved, it seems that the constituent was worried about
the objective to favor a certain amount of political pluralism in a country
where a political monopoly had ruled.
It is also necessary to pay attention to the eventual results of the “open
lists” that are being promoted with the objective to establish a certain
connection with the congressmen and the electorate. The tradition followed
by the political sciences accepts that the preferential voting systems favor
the personalization of the vote. However, this system also causes problems
in the internal discipline of the parties because it promotes the autonomy
of the congressmen. Some people might say that the maintenance of the
constitutional key –what makes the parties the only instrument through which
someone can be a candidate- could become an important fortress to avoid the
fall of the parties. What can be said about the cases in which a person
leaves one party to work for another? Is it worth to intensify the
debilitation of the parties? Even in a closed list system most of the
Salvadoran parties are not precisely characterized by their internal
discipline. It is necessary to take a look at several aspects when it comes
to discuss a new electoral institutional design in the national context.
An issue that is not explored by the proposal made by FUSADES is the
possibility to reverse the Salvadoran presidential system. The truth is that
it is necessary to be very careful when it comes to deal with this kind of
issues. In fact, everybody knows that the country’s political tradition is
attached to the presidential system. However, no one has taken the time to
explore the possibilities of a mixed system that combines a certain level of
the parliamentary work with the presidential system. The presidential system
is closely connected to the instability of the Latin American democracies.
The conflict resides in the dual democratic legitimacy of the Executive and
the Legislative power, the leading institutions of the political life. When
the President does not have a parliamentary majority he is usually involved
in a permanent competition with the Parliament. Both of them present
competitive and conflictive demands connected with the legitimacy of their
procedures, and that is how insuperable obstacles emerge because of specific
policies and specific laws. This issue has not been discussed in the
proposal that FUSADES made.
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