Law in Contemporary Society

Price of Security

-- By JacobLucero - 23 Apr 2024

Throughout the years, El Salvador has been synonymous with gang violence and political turmoil. After my family immigrated to the United States from El Salvador, we would hear of the dangerous conditions and societal struggles from family and friends. In 2019, the country saw President Nayib Bukele take power with great promise to address the country’s most pressing issues. To tackle these issues, President Bukele has leveraged the government’s military and police power in an effort to establish control and crack down on crime. Yet, while crime rates have dropped drastically, it has been offset by a disregard for Salvadorans' civil rights. A look into El Salvador’s current political state offers a stark view into the complexities of enforcing law and order in a crime-ridden society while maintaining civil liberties.

In March 2022, after a spike in homicides in which over 80 people were killed in a single weekend, the Salvadoran government resorted to declaring a state of emergency. The Legislative Assembly granted the executive branch absolute control over the legislature, allowing for the suspension of due process and judicial guarantees such as short time limits for administrative detention and the right to defense, freedom of association and assembly, and the inviolability of correspondence and telecommunications. Overnight, rights like the presumption of innocence and the right to be informed of the crime for which one is being detained were suspended in the name of restoring order and public safety.

During the state of exception, there has been frequent use of arbitrary detentions. This measure, supposedly aimed at controlling gang violence, has led to arrests under conditions that include suspension of privacy rights and legal defenses. Thousands of arrests have been made with no warrant from the court or prosecutor and with no prior evidence. There have been numerous cases where detainees were held without being informed of their charges, often based on nebulous criteria such as having a “suspicious appearance” or simply being in a low-income area. The absence of civil procedures that protect individuals’ rights has been overlooked by the public’s hyperfixation on lower crime rates. Yet, deprivation of fundamental rights, while acting as a stopgap solution for crime, sets the stage for future transgressions to be perpetuated through the actions of government figures and law enforcement agents. Essentially, it is trading one evil for another, an exchange of perpetrators from low-income gang affiliates to uniform-wearing enforcers.

The Salvadoran judiciary faces accusations of significant overreach, marked by forced retirements and dismissals of judges threatening judicial independence. With Bukele's party holding a two-thirds majority, the Legislative Assembly removed and replaced the attorney general and all five judges of the Supreme Court’s Constitutional Chamber, appointing an additional five judges, surpassing the allowable quota. This judicial overreach paves the way for rapid and unjust political reforms jeopardizing the freedom of Salvadorans. Moreover, laws were passed permitting the Supreme Court and the attorney general to dismiss judges and prosecutors over 60 and expand their powers to transfer them to new positions, flouting international human rights standards. These laws have been used to remove or relocate independent judges or prosecutors. In 2021, a ruling by the new Constitutional Chamber allowed President Bukele to pursue re-election, departing from established jurisprudence barring immediate re-election, further highlighting the erosion of judicial independence.

Another grave issue is the government's surveillance tactics. The use of Pegasus spyware to illegally monitor journalists and activists has been documented, with significant evidence pointing to the infiltration of individuals’ devices ranging from reporters at notable publications to members of human rights groups. This form of state-level espionage represents a severe infringement on privacy and freedom of the press, impeding the flow of information to the greater public about the true state of privacy invasion. Instead, only press that views the current administration in a positive light is allowed to be shared. This creates a fabrication of social realities that provide a misconception about the Bukele administration as being one that upholds the best interests of the Salvadoran people. In January, the assembly passed a law limiting scrutiny of "strategic projects of public utility," as defined by the Council of Ministers, increasing corruption opportunities. Previously, Attorney General Raśl Melara, removed in May 2021, was probing six officials for corruption tied to Covid-19 response. In January 2022, the Attorney General's Office raided prosecutors investigating corruption and officials' gang negotiations, leading four to flee fearing persecution.

Comparing President Bukele to leaders like Rodrigo Duterte in the Philippines reveals striking similarities in their approaches to governance. Both leaders have adopted aggressive measures to combat crime, often at the expense of civil liberties and human rights. They share a populist leadership style, using strong rhetoric to connect with ordinary citizens and presenting themselves as outsiders challenging the traditional political establishment. Their administrations have faced significant criticism from international human rights organizations for extrajudicial actions and erosion of democratic institutions. Despite these controversies, both Bukele and Duterte have maintained high approval ratings, reflecting a broader trend of populist, tough-on-crime leaders gaining popularity by appealing to public frustrations with crime, corruption, and traditional political systems. This popularity highlights the challenge of balancing effective crime control with the preservation of democratic values and human rights, a challenge that is also evident in other countries like Ecuador and Haiti, where organized crime poses significant threats to state structures. What distinguishes El Salvador from Nicaragua, however, is Bukele's undoubted popularity, which cannot be solely attributed to the populace’s support for state violence against gangs and the narcotics economy. Rather, it suggests a complex interplay of factors, including public desire for security and order in the face of long standing social and economic challenges. This reality is reminiscent of a quote from George Orwell in 1984: “The choice for mankind lay between freedom and happiness, and that, for the great bulk of mankind, happiness was better.” A notable popularity should not take away from the human rights violations being committed in plain sight.

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r4 - 30 May 2024 - 11:02:55 - JacobLucero
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