The Constitutional Court’s Dismissal of Generals Munguía Payés and Salinas
On Friday, May 17, the Constitutional Chamber of El Salvador’s Supreme Court affirmed that the appointment of former General David Munguía Payés as Minister of Justice and Public Security and former General Francisco Salinas as director of the National Civilian Police (Policía Nacional Civil, PNC) violated the constitutional requirement that the Ministry of Justice and Public Security and the PNC be directed by civilian authorities. WOLA views this decision as an important re-affirmation of the civilian character of the PNC. During the 2011 discussions about the possibility of naming Munguía as Minister, we expressed concern about the effect that such an appointment would have on the civilian character of public security institutions in El Salvador. (Our concerns were not with Munguía in particular, but with the apparent blurring of the boundaries between the role of the military and the role of civilian police and public security institutions.) We are pleased to see that the court has drawn a sharp line on this issue.
The ruling’s significance
Munguía Payés is a career army officer and colonel who retired from active military duty in 2001, was returned to active duty (and promoted to general) when Salvadoran President Mauricio Funes named him as Minister of Defense in 2009, and retired again from the military (while continuing to serve as Defense Minister) in June 2011. He left the Ministry of Defense and was appointed Minister of Justice and Public Security in November 2011. Salinas is a career army officer who retired from active duty only hours before his appointment to head the PNC in January 2012.
In its ruling, the court noted that retired military officials can be recalled to active service and have not formally renounced their connection with the armed forces. Therefore, retired military officials are not civilians and thus are not eligible to assume positions that the constitution requires be filled by civilians. Furthermore, the court examined the meaning of the constitutional mandate that separates police and military functions and requires that the police and public security leadership be “civilian authorities.” Examining the language and intent of the Peace Accords which had shaped the constitution, the court found that the training and doctrine of the military are distinct from and incompatible with the training and doctrine of public security institutions, including the PNC. Therefore, individuals that have trained and spent their careers in the armed forces are constitutionally barred from assuming leadership positions in public security institutions.
Not surprisingly, the court’s decision has generated strong responses. No government likes to have its decisions challenged or its senior officials dismissed by a court. But the principle of separation of powers and of judicial independence requires the president and political parties to accept the decision of the court and to implement it, even if they do disagree. El Salvador’s Constitutional Chamber made several controversial decisions last year, and both the Funes government and the National Assembly responded with attempts to overturn the Court’s decision and a proposal to re-make the composition of the court itself. Eventually, the government and political parties abandoned those efforts and accepted the court’s rulings. We are pleased to see that in this case, President Funes and the parties in the National Assembly appear to have accepted the court’s decision and are moving forward with the search for Munguía and Salinas’ replacements. We believe that their actions re-affirm the separation of powers and judicial independence, and we applaud the political maturity that this demonstrates.
The president and his advisors face the challenge of appointing a new Minister of Justice and Public Security and a new director of the PNC.
This comes at a delicate moment. During Minister Munguía’s tenure, a former Munguía advisor and the Catholic chaplain for the police and the military negotiated a truce between the country’s two main gangs. The truce has resulted in a sharp drop in homicides, which is certainly a welcome development. But the truce remains deeply controversial, partially due to unanswered questions about what was negotiated and what role government authorities played. Certainly no one wants to see the truce collapse and homicides rise. The new Minister of Justice and Public Security and new director of the PNC will have to transform the truce into a more sustainable and transparent agreement, and they will have to work with the rest of the government and the international donor community to take advantage of the lull in homicides to invest in violence prevention, job training, and job creation programs in high crime communities.
The new public security leadership will also have to confront allegations of corruption within the police. Shortly after Munguía’s appointment, the Inspector General of the PNC—who had been named by President Funes and had conducted aggressive investigations of corruption and human rights abuses within the PNC—resigned from her office. Her successor closed many of the investigations she had opened, and he has done little to pursue continuing concerns about corruption or criminal influence in the police.
WOLA urges President Funes to name as Minister of Justice and Public Security and as director of the PNC individuals with a strong commitment to strengthening the PNC as an institution; re-affirming efforts to root out corruption; and supporting efforts to make communities safer through a combination of smart policing and support for investment in violence prevention, job training, and job creation programs.