Should Bitcoiners Support Bukele? – Bitcoin Magazine
This is an opinion editorial by Jaime García, a Salvadoran-Canadian Bitcoiner and co-host of Global Bitcoin Fest.
Many bitcoiners see El Salvador as a beacon of hope, as it is the only country to date that has truly made bitcoin one of its official currencies. The country has provided a hospitable atmosphere for international Bitcoiners to meet, vacation and invest their stacks. Arguably, one of the main driving forces behind Bitcoin adoption in El Salvador has been President Nayib Bukele.
But it will take several years to ensure the success of this new project. And many have wondered what would happen to the project if Bukele, its greatest champion, was no longer in charge. Some have wondered if one presidential term is enough to complete the task of plundering El Salvador.
That is why the potential of Bukele’s re-election is likely to be welcomed by many Bitcoiners. Equally important, however, is the potential that Bukele would circumvent the Salvadoran constitution to gain 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 attempt 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 for the presidency in the 2024 elections. Many Salvadorans received his announcement with excitement, enthusiasm and thunderous applause. In contrast, many of his critics, critics and international news organizations immediately condemned his decision to run for a second term as illegal and unconstitutional. For the most part, their dismissals were based on the belief that El Salvador’s constitution limits the presidential administration to a single five-year term.
This article describes Bukele’s legal path to a new presidential term. It is not intended to promote or detract from Bukele’s future presidential ambitions, but only to highlight the requirements for a Bukele candidate in 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 thoroughly evaluate the situation.
The legal issues surrounding Bukele’s second term
Like many in El Salvador, Bukele himself had long maintained that the presidential term was limited to one and that re-election was impossible. Furthermore, in numerous interviews, he had gone on the record claiming that he would not change the constitution to seek re-election.
As you might expect, amending the constitution is a long and arduous process. First, the president alone cannot amend the constitution. Second, proposed amendments require at least ten signatories of deputies from the Legislative Assembly. Third, the Legislative Assembly of El Salvador must approve the proposed amendment by a simple majority of 50% plus one. Finally, after a cooling-off period, the next elected legislature would ratify the proposal by a vote requiring three-fourths of the assembly.
It would have been impossible for Bukele, even if his party had a supermajority in the assembly, to pass a constitutional amendment in time for re-election for a second term. In addition, Article 248 of the constitution explicitly prohibits changes to the section dealing with presidential terms.
As far as is known, Bukele had no intention of running for re-election. So, what made it possible for him to announce that he would seek another term as president?
A recent interpretation of the Constitution of El Salvador
February 15, 2021, Salvadora’s digital news outlet Diario El Mundo published an interview with Nancy Marichel Díaz de Martíneza candidate running for GO NOW party in the upcoming elections to the Legislative Assembly. In the interview, she was asked by the newspaper if she would support the re-election of Bukele, and she answered positively.
On March 22, 2021, in an attempt to have Díaz de Martínez disqualified from running in the Legislative Assembly elections, a known Bukele opponent and constitutional lawyer, Salvador Enrique Anaya Barraza, filed a lawsuit against her. The indictment alleged that Díaz de Martínez promoted the re-election of the president. According to the Salvadoran Constitution, Article 75, Section 4, such activity is prohibited, and the penalty for doing so is losing your civil rights, including the ability to run for office.
The Constitutional Chamber of Salvador’s Supreme Court allowed Díaz de Martínez to run in the election, provided that if it found her in violation of the constitution and she was successful in her bid (she was not), they would remove her from office. At that point, Díaz de Martínez admitted the charge.
On September 3, 2021, the Constitutional Chamber of the Supreme Court issued a ruling regarding the loss of Díaz de Martínez’s citizenship rights. The report largely examined the impact of the decision by relying on the case law. Essentially, it found that Díaz de Martínez did not lose his civil rights because:
1. The evidence provided by Salvador Enrique Anaya Barraza lacked objectivity and credibility;
2. It is a given that the Chamber must use common sense in interpreting the Constitution and not punish sovereign individuals for the rigid and literal language of the document. In addition, citizens can freely express their political wishes, even if it is not allowed within the constitution, without fear of losing their rights. Freedom of expression is already a guaranteed right in the constitution, and other sections, including Article 75 § 4, cannot replace it.
3. It further clarified that although the President cannot be re-elected as an incumbent, the President may seek another term by obtaining permission from the Legislative Assembly to resign from the Presidency to run as a candidate, as long as he is not President in six months before the next period begins. This interpretation makes it possible for citizens to promote a second term, because it is constitutionally possible.
4. The Chamber provided further clarification on Article 152, Section 1, where it reveals a path for a legal second term:
A translation of the original 1983 version of the Constitution, Article 152 states:
“The following cannot be candidates for the President of the Republic:
Section 1 – Those who have held the Presidency of the Republic for more than six months, consecutive or not, during immediately preceding period or within last six months before the start of the presidential term”
The court highlighted that immediately preceding period is not current presidential term; Therefore, the current president may choose to seek a candidacy, provided he is not president at the time of the candidacy.
It highlighted the importance of a candidate not being president within last six months before the start of the presidential term because of the advantage of being in place and using the power of the office for campaigns.
Source: The author
5. The ruling also addressed that if the president seeks another term, they will must request permission to resign from the presidency to become a candidate and remain silent.
6. The chamber interpreted the concept of changeability as more than a change in president. However, it can happen due to a current president stepping down to run and the vice president taking over the role. Nevertheless, the chamber also defined “switchability” as the ability of voters, through freely held elections, to have the option of choosing another candidate if they so wish.
7. An important part of the Chamber’s ruling was its direct instruction that the pursuit of a third presidential term is prohibited.
8. Finally the chamber gave explicit instructions to Supreme Electoral Courtwhich enforces the rules and administration of elections and facilitates the registration of the current president, provided he wishes to run and he meets the requirements.
Does El Salvador’s constitution prohibit a second presidential term?
In accordance Arturo Mendez Azaharwho, as Minister of Justice and Legal Adviser to the Presidency in 1983, served as one of the authors of the Salvadoran Constitution, a second term has been 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 prohibited the president from being a candidate, you realize that another term is an option. In the 1983 version we removed that prohibition. Perhaps we made mistakes in the drafting of parts of the Constitution, but this change was intentional. Constitutional lawyers of my generation have long understood that there is a way forward to seek another presidential term.”
When asked why no one has tried to seek another term, Mendez Azahar explained that all presidents thought they could only run for one term. He explained that jailed former president Tony Saca had run successfully when he was ineligible. In the 2014 election, despite Saca’s candidacy being unconstitutional, the Supreme Electoral Court allowed him to run.
Even more striking is that the last Salvadoran president, Salvador Sánchez Cerén, had a candidacy that would likely be seen as unconstitutional. As former vice president under Mauricio Funes, Sánchez Cerén could not be a candidate because he had served his entire term. According to the constitution, he had to apply for permission and resign six months before the start of the next term to have been 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 President of El Salvador.
Mendez Azahar explained that “the original 1950 constitution, under the auspices of the United States and the Salvadoran oligarchy, made sure that no one could get another term because they were worried that the military would hold on to perpetual power, or worse, a civilian president did . a good job. But when we removed that limit in 1983, it was our intention to make it difficult to ask for another term. Only someone like Bukele has the confidence to ask the people for dispensation to resign from the presidency to seek a new term. Salvadorans would have laughed at any former president who made such a request.”
Which way will Bukele take?
The most likely scenario is that Bukele will ask the Legislative Assembly for permission to step down from the presidency to run as a candidate, as stipulated by 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 him in 2017. One of its key members, Julio Olivohas gone on a national television talk show suggesting that there should be a coup against Bukele.
So while there is a path for Bukele, it is neither guaranteed nor without risk.
Ironically, in an effort to dissuade Bukele from seeking another term, his opposition has enabled him not only to run, but to almost guarantee the presidency, given his high approval rating. And while it may seem easy to group Bukele with Latin American caudillos, it’s important to understand El Salvador’s laws and the potential legal path he has to run for the presidency a second time.
Some may agree and some will disagree, but knowing all the facts is essential for Bitcoiners in evaluating the situation in Bitcoin Country.
This is a guest post by Jaime García. Opinions expressed are entirely their own and do not necessarily reflect the opinions of BTC Inc or Bitcoin Magazine.
