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Notes -
As always, it sometimes helps to review the text that media coverage gestures towards. Regarding the El Salvador Constitution, english translation linked here-
When media refer to the Constitution in a 'the Constitution prohibits re-election', they're generally referring to Article 152-
Article 152 [The following] shall not be candidates for the President of the Republic:
1st.—He who has filled the Presidency of the Republic for more than six months, consecutive or not, during the period immediately prior to or within the last six months prior to the beginning of the presidential period;
2nd. —The spouse and relatives within the fourth degree of consanguinity or second of affinity of any of the persons who have exercised the Presidency in the cases [included in] the preceding ordinal;
3rd.—He who has been President of the Legislative Assembly or President of the Supreme Court of Justice during the year prior to the day that initiates the presidential period;
4th.—He who has been Minister, Vice Minister of State, or President of any Official Autonomous Institution, and the General Director of the National Civil Police, within the last year of the immediately previous presidential term;[28]
5th.—Professional military persons (militares) who were in active service or who have been so within the three years prior to the day of the beginning of the presidential period;
6th.—The Vice President or the Designate who when legally called to exercise the Presidency in the immediately preceding period, refused to fill it without just cause, meaning that this exists when the Vice President or the Designate manifests his intention to be a candidate to the Presidency of the Republic within the six months prior to the beginning of the presidential period;
7th.—The persons included in the 2nd, 3rd, 4th, 5th and 6th ordinals of Article 123 of this Constitution.
Article 154 is really, explicitly clear that a President cannot spend more than their full term-
Article 154 The presidential period shall be of five years, and shall begin and end on the first of June, without the person who exercised the Presidency being able to continue in his functions one day more.
Article 131 adds an obligation in ordinal 16,
Article 131 16th.—To obligatorily disavow the President of the Republic or his substitute if, when his constitutional term has ended, he continues in the exercise of his post. In this case, if no person has been legally summoned for the exercise of the Presidency, a Provisional President shall be designated;
HOWEVER... there is a certain... trifling... Article 155
Article 155 In default of the President of the Republic, due to death, resignation, removal or other cause, the Vice President shall substitute him; lacking the latter, one of the Designates in the order of their nomination, and if all these are lacking for any legal cause, the Assembly shall designate the person who shall substitute him. If the cause that incapacitates the President for the exercise of his position endures for more than six months, the person who substitutes him in conformance with the preceding paragraph, shall complete the presidential period.
Some rules lawyers may be recognizing why that might be important. Rest assured, Article 156 is quick to spot one potential loophole-
Article 156 The positions of the President and Vice President of the Republic and of the Designates are only resignable for a duly substantiated grave cause that shall be approved by the Assembly.
And later on, it's very, very clear that that on the constitutional amendment front, the framers were very clear that the most relevant principle can not be amended.
Article 248 Reformation of this Constitution may be decided by the Legislative Assembly, with the vote of one-half plus one of the elected Deputies.
For this amendment to be decreed, it must be ratified by the following Legislative Assembly by a vote of two-thirds of the elected Deputies. Thus ratified, the corresponding decree shall be issued and shall be published in the Official Gazette. Amendments may only be proposed by elected Deputies, by a number no less than ten.
**Under no circumstances, may the articles of this Constitution, which refer to the form and system of government, to the territory of the Republic, and to the principle that a President cannot succeed himself (alternabilidad), be amended. **
---RECORD SCRATCH---
Did you catch that? One of the key points of discrepancy in the coverage? Something previously referenced, but kind of relevant?
The El Salvador Constitution doesn't prohibit the election of former presidents. The El Salvador Constitution prohibits self-succession.
To quote-
Article 88 The principle that a President cannot succeed himself (alternabilidad) is indispensable for the maintenance of the established form of government and political system. Violation of this norm makes insurrection an obligation.
This is where we remind you that Bukele announced his intended resignation by the end of this year about half a year ago.
This is where the Constitutional rules-lawyering begins, which has not, shall we say, been an area where the Western media has been particularly clear on positions or, or weaknesses of, those involved.
The Constitutional principle involved for arguments against re-election is not that not actually about re-electing a former president. There are a half-dozen restrictions on who can run for President, but being a former president- or even a future former president- isn't one of them. There is only time frame defined derives from Ordinal 1 of Article 152, which is where the prohibitions on self-succession defines as-
1st.—He who has filled the Presidency of the Republic for more than six months, consecutive or not, during the period immediately prior to or within the last six months prior to the beginning of the presidential period;
The core of the Constitutional argument against Bukele boils down to claiming that being President 7-12 months before the presidential period- but not 0-6 months before- constitutes 'the period immediately prior to the beginning of the presidential period.'
The weakness of those who want to take that position is without an actual ban on former Presidents running for election, trying to claim 'more than half a year ago' is 'immediate' and not long enough obligates a standard on how long out of office would be enough. And the issue here is that the only hard number the Constitution provides in this context is... the 6-month window.
Bukele's maneuverings- and his supporting Constitutional argument- is that he will resign from being president more than 6 months out. It will not be his Presidential Period anymore- it will be whoever actually ends up replacing him as the interim, who will complete the Presidential Period (Article 155).
Article 156 does stipulate that a Presidential resignation should be accepted for a 'duly substantiated grave clause'- but there is no definition of what that would be, and the power to accept that is explicitly left to the Assembly. 'Duly substantiated grave clause' is in the same undefined space as the American 'impeachment-worthy' category, which is to say- whatever the Legislature wants it to be. And, of course, whether they accept it is not really in question.
At which point, once resignation is accepted, some of the key constitutional objections give way.
Is Bukele succeeding himself, the criteria for which insurrection is obligatory? Clearly not- he will have resigned.
Will Bukele be succeeding someone for whom he is too closely related to be a candidate again? Also no- the constitutional barriers are on familial relationship, not political relations.
Will Bukele's succeeding president be unconstitutional? Not if the Bukele's resignation is accepted by the appropriate constitutional body.
Should the Bukele's resignation be accepted? I would agree they should not. However, the judgement falls to the Assembly.
Will the Assembly's acceptance of the resignation unconstitutional? This isn't the case being made- and there is no standard for what they can / cannot accept.
And this is where we get into the space that Americans will be more familiar with, the sort of open-ended 'what is an Impeachable offense' standard where a Legislature has the ability to choose, but no obligation or enforcement arm to have a standard. In the U.S. American political context, this has generally been recognized as 'let the voters reward or punish,' where the worthiness of an Impeachment is based on whether voters reward or punish at the ballot box.
It's very hard to emphasize enough the point that Bukele is truly, genuinely popular in El Salvador. He is not going to need to cheat to win the election. This is not a case of 'unpopular minority incumbent corruptly rigs courts to steal votes,' or even 'incumbants use state of emergency to change voting laws to favor themselves by improving partisan constituent turnout.' Bukele is a wildly popular incumbant who is popular because he made major, discernable changes in people's quality of life through addressing real threats. The unpopular minority parties in this context are the ones trying to prevent the most popular candidate from running.
None of this is intended to imply that Bukele's ambitions for another term are good or just or appropriate, or even that you need to accept his position's Constitutional framing. The principle of self-succession was adopted for many, many good reasons.
But rule of law implies rules by the laws as written, not the rules as you wanted them to be, and conflating the two simply undermines the claimed sanctity of the former. Bukele is a classic letter-of-the-law versus spirit-of-the-law dispute, where the spirit and the letter are not the same thing, and 'Bukele packed the courts' isn't the only reason he could win that argument.
Thanks for the added details on the case, quite the loophole there with self-succession.
I think I pointed out as much:
Him emphasizing something is not him saying that you didn't mention it.
Sure, just clarifying.
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