This is an opinion editorial by Jaime García, a Salvadoran-Canadian Bitcoiner and Global Bitcoin Fest co-host.
Many Bitcoin users see El Salvador as a beacon of hope, as it is the only country so far that has actually made bitcoin one of its official currencies. The country has provided a hospitable environment for international bitcoiners to meet, vacation and invest their batteries. Undoubtedly, one of the key forces behind the adoption of Bitcoin in El Salvador has been President Nayib Bukele.
But guaranteeing the success of this new project will take a few more years. And many have wondered what would happen to the project if Bukele, its greatest champion, was no longer at the helm. Some have wondered if a presidential mandate is enough to complete the task of beating El Salvador orange.
This is why the potential of Bukele’s re-election would likely be welcomed by many Bitcoiners. However, just as important is the potential that Bukele would circumvent the Salvadoran constitution to secure another term and perpetuate himself in the presidency – an abuse of power that seems to contradict Bitcoin’s emphasis on rules, not rulers.
It now appears that Bukele will try to continue his presidency, beyond his current term. On September 15, 2022, El Salvador’s 201st Independence Day, Bukele announced that he would seek to run as a presidential candidate in the 2024 election. Many Salvadorans greeted his announcement with excitement, enthusiasm and thunderous applause. Instead, many of his detractors, critics and international news organizations he immediately condemned his decision to run for a second term as illegal and unconstitutional. For the most part, their allegations were based on the perception that El Salvador’s constitution limits presidential administrations to a single five-year term.
This article describes Bukele’s legal path to a second presidential term. It is not intended to promote or detract from Bukele’s future presidential aspirations, but simply to highlight the requirements for a Bukele candidacy within the current Salvadoran constitution. Understanding the nuanced aspects of the Salvadoran constitution, the events leading up to Bukele’s announcement, and the mood of the Salvadoran population are critical factors in helping the reader fully assess the situation.
The legal issues surrounding Bukele’s second term
Like many in El Salvador, Bukele himself had long maintained that presidential terms were limited to one and that re-election was impossible. In addition, in many interviews, he had gone on record stating that he would not change the constitution to seek re-election.
As you might expect, changing the constitution is a long and arduous process. First, the president alone cannot amend the constitution. Second, the proposed changes require at least ten signatories from the Legislative Assembly. Third, the Legislative Assembly of El Salvador must approve the proposed change with a simple majority vote of 50% plus one. Finally, after a period of reflection, the next elected legislative assembly would ratify the proposal with a vote that would require three-quarters of the assembly.
It would have been impossible for Bukele, even with his party with a supermajority in the assembly, to pass a constitutional change in time for a second re-election. In addition, Article 248 of the constitution explicitly prohibits changes to the section dealing with presidential mandates.
As far as is known, Bukele had no intention of seeking re-election. So what made it possible for him to announce that he would seek a second term as president?
A recent interpretation of the Constitution of El Salvador
On February 15, 2021, the Salvadoran digital news channel El Món newspaper published an interview with Nancy Marichel Díaz de Martíneza candidate who presents himself to the WIN party in the upcoming legislative assembly elections. In the interview, the newspaper asked her if she would support Bukele’s re-election, and she responded positively.
On March 22, 2021, in an attempt to disqualify Díaz de Martínez from running in the legislative assembly elections, a well-known Bukele detractor and constitutional lawyer, Salvador Enrique Anaya Barraza, filed a lawsuit against her. The indictment alleged that Díaz de Martínez pushed for the president’s re-election. According to Article 75, Section 4 of the Salvadoran Constitution, this activity is prohibited, and the penalty for doing so is losing your citizen rights, including the ability to run for office.
The constitutional chamber of the Salvadoran Supreme Court allowed Díaz de Martínez to run in the elections, provided that if they found her in violation of the constitution and she was successful in her candidacy (she was not), she would be deposed from her position. Díaz de Martínez then admitted the charge.
On September 3, 2021, the constitutional chamber of the Supreme Court ruled on the loss of Díaz de Martínez’s citizenship rights. The report extensively explored the impact of its decision based on the body of jurisprudence on the matter. Essentially, it found that Díaz de Martínez did not lose his citizenship rights because:
1. The evidence provided by Salvador Enrique Anaya Barraza lacked objectivity and credibility;
2. It is a fact that the chamber must exercise common sense in the interpretation of the constitution and not penalize sovereign individuals for the rigid and literal language of the document. In addition, citizens can freely express their political wishes, even if the constitution does not allow it, without fear of losing their rights. Freedom of expression is already a right guaranteed in the constitution, and other sections, including Article 75, Section 4, cannot replace it.
3. He further clarified that although the president cannot be re-elected as an incumbent, the president can apply for a second term by obtaining the authorization of the legislative assembly to resign from the presidency to run as a candidate, as long as he is not president in the six months before the start of the next term. This interpretation allows citizens to promote a second mandate, because it is constitutionally possible.
4. The room gave more clarity on article 152, section 1, where he reveals a path for a second legal term:
A translation of the original 1983 version of the constitution, Article 152 reads:
“They cannot be candidates for the presidency of the Republic:
Section 1 – Those who have held the Presidency of the Republic for more than six months, consecutive or not, during the immediately preceding period or within the last six months before the start of the presidential term”
The court emphasized that the immediately preceding period it’s not him current presidential period; therefore, the current president could choose to seek a nomination, as long as he is not the president at the time of running.
He emphasized the importance of a candidate not being the president within the last six months before the beginning of the presidential term because of incumbency advantage and using the power of office to campaign.
Source: The author
5. The sentence also addressed that if the president seeks a second term, they he must seek permission to resign from the presidency to be a candidate and run.
6. The chamber interpreted the concept of alternation more than a change of president. However, this can happen because an incumbent president declines to run and the vice president takes over. However, the chamber also defined “alternativeness” as the ability of the electorate, through free elections, to have the option of choosing another candidate if they wish.
7. A vital part of the chamber’s ruling was its direct instruction that he is prohibited from pursuing a third presidential term.
8. Finally, the the chamber gave explicit instructions to the supreme court of the electoratewhich enforces the regulations and the administration of the elections and facilitates the registration of the current president, as long as he wants to run and meets the requirements.
Does the Constitution of El Salvador prohibit a second presidential term?
Seconds Arturo Mendez Azaharthat as minister of justice and legal advisor to the presidency in 1983 he was one of the authors of the Salvadoran constitution, a second term is legal and possible since this version was drafted.
In an interview with Bitcoin magazine, Mendez Azahar said: “When you compare the current version of the Constitution with the one from 1950 and 1962, where it specifically forbids the president to be a candidate, you realize that a second term is an option. In the 1983 version, we removed that prohibition. We may have made mistakes in drafting parts of the constitution, but that change was intentional. Constitutional lawyers of my generation have long understood that there is a way forward to seek a second presidential term”.
When asked why no one has tried to seek a second term, Mendez Azahar explained that all presidents believed they could only run for one term. He explained that jailed former president Tony Saca had successfully run when he was ineligible. In the 2014 elections, even though Saca’s candidacy was unconstitutional, the electorate’s supreme court allowed him to run.
Even more striking is that the last Salvadoran president, Salvador Sánchez Cerén, had a candidacy that would probably be considered unconstitutional. As Mauricio Funes’ former vice president, Sánchez Cerén could not be a candidate because he had served his full term. According to the constitution, he had to ask for a permit and resign six months before the next period began to be a legal candidate. Despite the unconstitutionality of Sánchez Cerén’s candidacy, no one noticed, or perhaps it was completely ignored, and he eventually won the election and became the president of El Salvador.
Mendez Azahar explained that “the original constitution of 1950, under the auspices of the United States and the Salvadoran oligarchy, ensured that no one could have a second term because they were worried that the military would go to perpetual power, or worse, that a civil president did it. a good job But once that limit was removed in 1983, our intention was to make it more difficult to seek a second term. Only someone like Bukele has the confidence to ask the people for an exoneration to resign the presidency to seek a second term. Salvadorans would have laughed at any former president making such a request.”
Which path will Bukele take?
The most likely scenario is for Bukele to ask the legislative assembly for permission to resign from the presidency to run as a candidate, as stipulated in the chamber’s ruling. Even with the permission of the legislative assembly, the supreme electoral court cannot assure Bukele that his candidacy will be accepted, as this is the same body that blocked it in 2017. One of its key members, Julio Olivohas gone on a national television talk show suggesting there should be a coup against Bukele.
So while there is a path for Bukele, it is not guaranteed or without risk.
Ironically, in an attempt to dissuade Bukele from seeking a second term, his opposition has facilitated the possibility of not only running but almost guaranteeing his presidency, given his high approval rating. And while it may seem easy to group Bukele with Latin American leaders, it is essential to understand El Salvador’s laws and the possible legal path he has to run for president a second time.
Some may agree and some will disagree, but knowing all the facts is crucial for Bitcoiners when assessing the situation in Bitcoin Country.
This is a guest post by Jaime García. The opinions expressed are entirely my own and do not necessarily reflect those of BTC Inc or Bitcoin Magazine.
