El Salvador, Constitutions
El Salvador, Constitutions
Although it was part of the Kingdom of Guatemala during the colonial period, the region of modern-day El Salvador began to act with increasing independence in the late eighteenth century. Salvadorans came to resent the power and status of Guatemalans and were quick to adopt a liberal, progressive attitude as a counterweight to the latter's conservatism. In general, Salvadorans and their constitutions have been among the most consistently liberal in Central America and have been the most active advocates of isthmian attempts at unity and federation. However, the constitutions of El Salvador have followed a Napoleonic pattern in being documents designed and decreed from above with the intent of creating a smoothly functioning, just society. Accordingly, the documents often bear little resemblance to the society they are intended to govern and have been modified frequently, because they have no roots in tradition. The student of legal and constitutional history must therefore proceed with caution and skepticism, for the documents may say one thing but translate into action quite differently.
Since 1824, El Salvador has had twenty-three constitutions, some of them virtually identical except for a few key clauses.
CONSTITUTION OF 1824
Central America achieved its independence from Spain without bloodshed and immediately consolidated its gains with a liberal constitution based on both the 1812 Cádiz Constitution of Spain and that of the United States. The 1824 Constitution provided the structure of the federation and its component parts. In it the newly named Federal Republic of El Salvador consisted of five states, each with its own assembly and head of state. The federation had a congress and a president, but both the states and the federation were granted the rights to raise armed forces and taxes, wherein lay the basis for much future disunity. The 1824 Constitution abolished slavery and recognized Catholicism as the official, exclusive religion. In general, it was a powerfully worded document that could not overcome the divisive forces arrayed against it. A Salvadoran-based attempt to revamp the constitution (1835) granted freedom of religion and introduced more parliamentary-style forms of government but proved insufficient to prevent the total breakdown of Central American unity in 1838.
Following this disruption, El Salvador and its politicians continued to hope for isthmian federation and provided a haven for other Central Americans of similar sympathies. Both in 1898 and 1921, representatives of the dream of federation met in San Salvador to draft constitutions for the United States of Central America and the Republic of Central America.
CONSTITUTION OF 1886
After decades of struggle between liberals and conservatives (never as violent in El Salvador as elsewhere in Central America), a series of strong liberal presidents established a new governmental ethos epitomized in the Constitution of 1886. President Francisco Menéndez was the primary architect behind this liberal-idealist document, which guaranteed the free expression of ideas, regular elections with universal suffrage for literate males, and similar tenets of political liberalism. This constitution contained a clause precluding successive terms in office, a process of alternating presidencies that became a respected and honored tradition in El Salvador which was not challenged until the period of Maximiliano Hernández Martínez in the 1930s.
Despite its high ideals, the liberal Constitution of 1886 did not guarantee equality in practice. For instance, the titles to recently expropriated communal lands of the Indian communities were legally turned over to their new entrepreneurial owners. Also, there were no provisions for taxation and public works, and urban development was placed above the welfare of the rural areas. Furthermore, political participation and the control of the emerging state remained in the hands of a very few elite families with access to education and financial resources. With a few modifications, the Constitution of 1886 survived until 1939 and served as the inspiration for the democratic movement of 1944.
CONSTITUTION OF 1939
The more authoritarian Constitution of 1939, initiated by General Maximiliano Hernández Martínez, was a thoroughly twentieth-century document that introduced the idea of state intervention to El Salvador. Under its provisions the state had the exclusive right to regulate money, mail, telegraph, telephone, and radio services. The government recognized an obligation to protect and promote small businesses and credit institutions and to offer some workers' protection. This constitution also gave the military courts jurisdiction over civilians charged with rebellion and extended the presidential term from four to six years, with no provision for reelection. The 1939 constitution and Hernández Martínez's dictatorship together spawned a military-civilian coup in 1944, but the trend toward government interventionism continued unchecked and actually extended its scope.
CONSTITUTIONS OF 1950 AND 1962
The constitutions of 1950 and 1962 are virtually identical, except for a few changes in wording and the location of specific clauses. Their major social concerns, which were concentrated on urban areas, allowed for the existence of muted political opposition. Women were granted the vote, and the right of the people to insurrection was guaranteed in principle. The army, renamed the Armed Forces, was held to a limit of 3,000 men, a figure that did not include the security forces. The constitutions of 1950 and 1962 revealed lofty ideals but also laid bare the apprehensions of the ruling powers, who wanted to orchestrate and manage social change from above.
Salvadoran constitutional history reveals some striking consistencies throughout the nineteenth and twentieth centuries; indeed, much of the wording is retained from one version to another. The Constitution of 1983 drew much inspiration from its predecessors of 1962 and 1950, which in turn owed a debt to those that had gone before. The various constitutions all share a desire for improvements in the general welfare and for isthmian union, but they suffer from fear of the dislocations that such changes necessarily imply.
Government of El Salvador, Independencia: Objetivos y constitución (n.d.); Constitución política de la República de El Salvador (1886); Constitution of the Republic of El Salvador (1950); Constitution of the Republic of El Salvador (1962); Constitución política de la República de El Salvador (1980), and Proyecto político de la nueva constitución política de El Salvador (1983).
Julio Alberto Domínguez Sosa, Génesis y significado de la Constitución de 1886 (1958).
Ricardo Gallardo, ed., Las constituciones de la República Federal de Centro-América (1958), Las constituciones de El Salvador (1961).
Seminario De Historia Contemporánea Centroamérica, El constitucionalismo y la vida institucional centroamericana (1964).
Thomas Karnes, The Failure of Union: Central America, 1824–1975 (1976).
Mario Rodríguez, The Cádiz Experiment in Central America, 1808 to 1826 (1978).
Maria Leistenschneider and Freddy Leistenschneider, Períodos presidenciales y constituciones federales y políticas de El Salvador (1980).
Ralph Lee Woodward, Jr., Central America: A Nation Divided, 2d ed. (1985).
Anaya B, Salvador Enrique. Teoría de la constitución salvadoreña. San Salvador: Proyecto para el Fortalecimiento de la Justicia y la Cultura Constitucional en la República de El Salvador, Unión Europea: Corte Suprema de Justicia, 2000.
Castaneda, Ricardo Guillermo, and Cynthia Arnson. El Salvador's Democratic Transition Ten Years after the Peace Accord. Washington, DC: Woodrow Wilson International Center for Scholars, Latin American Program, 2003.