6 March 2018
Supreme Electoral Tribunal organises complex elections,
implementing electoral reforms introduced by Constitutional Chamber
This preliminary statement of the EU election observation mission (EOM) is delivered before the completion of the entire electoral process. Critical stages remain, including final results and the adjudication of petitions. The EU EOM is now only in a position to comment on observation undertaken to date, and will later publish a final report, including full analysis and recommendations for electoral reform. The EU EOM may also make additional statements on election-related matters as and when it considers it appropriate.
On 4 March Salvadorans went to the polls to elect 84 members of the Legislative Assembly (Asamblea Legislativa – AL) and 262 Municipal Councils for a three-year term of office. These were the fifteenth elections in El Salvador since the 1992 Peace Accords. They were also the second legislative elections under cross-voting, a list system permitting a voter to select names from more than one party list. Ten parties contested the elections, some forming coalitions at the 14 departmental and 262 municipal levels.
The elections do not only serve as a political litmus test for next year’s presidential elections, but importantly the new AL will elect members of key state institutions, including the Supreme Electoral Tribunal (TSE), the Court of Audit, the Attorney General, the Human Rights Ombudsperson and four of the five members of the Constitutional Chamber of the Supreme Court of Justice for a nine-year term. The latter appointments are particularly relevant given the fundamental institutional and political changes triggered by the decisions of the current Constitutional Chamber.
The political maturity of candidates contributed to foster the calmest electoral process since the 1992 Peace Accords.
The low-key electoral campaign was characterised by door-to-door canvassing and small gatherings. The electoral silence period, including on election day, was not respected. Pre-campaigning for the 2019 presidential elections to a certain extent eclipsed campaigning for the current elections. Furthermore, little renovation in the AL could be expected as 67 out of the current 84 Deputies sought re-election. The expected decline in voter participation may be a reflection of discontent with the political offer of the two major parties, it may also be attributed in part to a call from the popular Mayor of San Salvador to vote blank as a protest vote.
Despite political polarisation, relations between candidates were respectful, with only isolated minor incidents such as removal or defacement of campaign propaganda and skirmishes between party militants. In many departments and municipalities competing parties and candidates signed formal non-aggression pacts, frequently under the auspices of the Salvadoran Human Rights Ombudsperson (PDDH). The more established parties were unified in their dislike for cross-voting, complaining it would cost them ‘fractions of votes.’
Despite an explicit prohibition in the Electoral Law, incumbent mayors were observed to use state infrastructure and public servants for campaigning purposes, and most candidates did not take unpaid leave, thus mixing office with party politics. Vote-buying in cash or in kind is forbidden under the Penal Code, however, many candidates distributed household and building supplies or basic food staples without being sanctioned. Likewise, many candidates and most parties practiced indirect vote-buying by paying the USD 10 fee for renewal of expired national identity cards (DUIs). In this transaction, citizen’s data was recorded to allow posterior verification that they actually voted.
In 2012, the EU recommended moving from a ‘winner takes all’ to a multiparty system for municipal councils. Election of multiparty municipal councils for the first time in 2015 was a factor that reduced tensions in the campaign by ushering in a cooperative system that better fosters dialogue and negotiation. Among the 46 municipal level alliances for the 2018 polls, twelve bridged the left-right ideological gap as they comprised combinations of the FMLN, GANA and Christian Democratic Party (PDC). All parties consulted by the mission considered the interim experience of multiparty councils as very positive.
The TSE is the legal authority mandated to verify the financial records of public and private financing of political parties and independent candidates. The law sets limits to the maximum amount of individual private donations and restricts the possible origin of contributions. Independent candidates, due to a legal lacuna, only rely on private contributions as source of financial support.
The Constitutional Chamber ordered the suspension of public funding until political parties complied in detail with the legal requirement to inform about the origin and spending of campaign funds. The TSE publicly stated it lacked the human resources to effectively check records. Contrary to the court ruling, the Ministry of Finance distributed USD 7 million to five parties (FMLN, ARENA, GANA, PCN, PDC), declaring it trusted the TSE’s supervisory capacity.
The impact of criminal gangs (pandillas) on the electoral process is difficult to quantify. National stakeholders reported that about two thirds of the country’s territory was under gang influence. While EU observers did not report that gangs constituted an indirect political weight, the TSE experienced problems delivering letters of assignment to selected polling staff in some neighbourhoods controlled by gangs and had to consider this factor when locating voting centres.
In response to citizens’ demands, the Constitutional Chamber took the lead in advancing positive electoral reforms, which could have benefitted from broader consensus with key stakeholders.
In response to petitions seeking the protection of constitutional rights, the Constitutional Chamber of the Supreme Court of Justice pioneered electoral reforms and issued since the last elections in 2015 some 10 rulings. Despite the Chamber’s lack of consultative exchange with stakeholders, the AL and the TSE implemented all judgements. The TSE was challenged with a number of changes to the legal framework and the mandatory implementation of these rulings was not attached to additional budgetary needs. Lack of TSE ownership of such decisions and shortcomings in explaining these to the public seemed to be factors which contributed to diminished public trust in the institution.
Ahead of the 2015 polls, a Chamber ruling had impacted the electoral system by introducing the possibility to choose candidates from more than one party list. One of the 10 rulings since 2015 was to introduce independent polling officers. Other rulings introduced new criteria for internal party elections, opening the possibility for citizens to challenge TSE decisions, and allowing members of the police and armed forces to vote at polling station where they were on duty. The Chamber also deemed crossing the floor (transfugismo) was unconstitutional.
Despite abundant electoral reforms, the EU EOM observed the persistence of several weaknesses in the legal framework including challenges in the TSE’s capacity to investigate and sanction electoral infractions in time largely due to insufficient human resources, ineffectual penalties for the violation of campaign rules, and an inadequate legal framework for the media.
El Salvador ratified the most significant international and regional treaties for the protection of human rights and democratic government such as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of Racial Discrimination, the Conventions on the Political Rights of Women and on the Rights of Persons with Disabilities.
The national legislation integrates fundamental principles for the conduct of democratic elections in its Constitution and primary laws. El Salvador also passed laws specifically targeted to protect vulnerable groups such as women and disabled citizens and recognises the protection of indigenous peoples in its Constitution.
The TSE performed under pressure following Constitutional Chamber decisions and budget constraints. These factors challenged its implementing capacity and role as the highest electoral authority.
The Electoral Law defines the TSE as the highest electoral authority, both at the administrative and the jurisdictional level. It should enjoy full financial autonomy, especially in election years. The separation of administrative and judicial functions, recommended by previous EU missions, was not taken into consideration. EU observers noted that departmental and municipal electoral boards sometimes lacked effective communication with the central level and that this resulted in differentiated approaches to jurisdictional decision-making.
In view of the new tasks assigned to the TSE following the Chamber’s rulings, the TSE increased its budget estimation. In an apparent violation of the TSE’s financial autonomy, its requested budget for the 2018 elections was reduced by 35% by the Treasury before being sent to the AL for approval. Budget constraints negatively impacted its decision-making autonomy and operational capacities in key areas of the electoral process, such as results transmission and processing, voter education and polling staff training. The TSE’s jurisdictional function to investigate and sanction electoral infractions remains hampered due to serious budgetary constraints.
Polling preparations were adequate and professional and the few delays in the electoral calendar had little impact on election logistics. The TSE successfully managed the new task of training enough poll workers to establish polling stations across the country.
Election preparations were adequate and generally on time, following the operational calendar in the General Election Plan (PLAGEL). Ballot printing was delayed due to a late candidate approval process, but this did not impact the timely and well-organised delivery of sensitive election material. Departmental Electoral Boards (JEDs) and Municipal Electoral Boards (JEMs) were generally able to execute their tasks despite occasional communication and coordination problems with the TSE Department of Election Organisation (DOE).
The Chamber initiated the ‘citizenisation’ of electoral bodies, to untie the electoral administration from partisan control, as recommended by previous EU missions. The process remains nevertheless incomplete, as political parties retain the right to propose members of all electoral bodies despite the prohibition of formal political affiliation. The EU EOM observed that most JED and JEM members retained a close link with the political instance that proposed them.
Previously conducted and paid for by political parties, poll worker training now falls under the responsibility of the TSE. Charged with the task of training almost 100,000 poll workers with little or no electoral experience, the TSE conducted a high-quality training programme over a four-month period. Unable to issue the requested two trainings to all polling staff, the TSE nevertheless managed to train enough workers to guarantee the legal quorum in all polling stations. As the training process was somewhat delayed, the swearing in of poll workers took place after the legal deadline.
The requirement for electoral body members to be non-partisan, combined with political parties’ difficulty to propose enough names, necessitated a public draw to complete polling staff numbers. The involvement of citizens as poll workers was not observed to be adequately planned nor explained to the population; a number of citizens showed a lack of enthusiasm to take up this newly introduced civic duty, an aspect which the media highlighted repeatedly.
Stakeholders reported confidence in the voter register.
The voter register, regularly updated by the TSE, was closed on 4 September 2017, although address modifications were permitted only until 3 March 2017. The 5,186,042 registered voters did not include the 300,000 Salvadorans residing abroad who will not be registered to vote in legislative and municipal elections until 2021. While stakeholders generally consider the register quality to be acceptable, it is widely recognised that voter lists still include a significant number of deceased electors, mostly due to the inadequate information flow between the municipalities and the National Registry of Natural Persons (RNPN), from which the voter register is extracted.
The TSE could benefit from an improved capacity to verify candidatures ahead of the campaign period.
Registration of candidate lists and independent candidates officially started on 5 October 2017, the day after the call for elections. Following a complaint by independent candidates in relation to TSE delays in issuing the official forms for signature collection, the Constitutional Chamber extended the registration period to 23 December. The TSE facilitated the registration of independent candidates, often through informal procedures, to ensure their timely registration.
The TSE registered 1,164 candidates for the Legislative Assembly and 20,145 municipal candidates. Only the Christian Democratic Party (PDC) candidate list in Usulután department was cancelled after the party failed to replace a rejected candidate in time. Four independent candidacies were approved for San Salvador district, with no other independent candidates in the country.
JEDs verified and registered municipal candidate lists. Some 15 appeals were reviewed by the TSE, some of which were still pending a decision on 4 February, the date on which the municipal election campaign began. This introduced uncertainty regarding candidates and holdups in the printing of ballots for some municipalities.
Voter education was minimal during most of the period before the elections, especially on the complex issue of cross-voting.
Constrained by limited resources, the TSE chose to focus its outreach effort to motivate polling staff to join the training and to inform citizens on how to locate their polling station. To such effect, information kiosks were installed in public places and a low-key campaign was launched, mostly through social media and the TSE’s website.
Until late February, a Votabus touring the country and online training courses were the only tools available to educate citizens on how to vote. A late voter information campaign on this subject was finally launched about 10 days before the election. EU observers in all departments confirmed the lack of adequate voter information and saw no official voter education activities targeted to indigenous people.
The media offered a visible and active coverage of the elections, but significant discrepancies in paid propaganda and news content in favour of FMLN and ARENA were observed.
Freedom of expression, safeguarded in the Constitution, was respected overall. Media pluralism was limited as it focussed mostly on the main political actors. According to EU EOM media monitoring findings (5 to 28 February), on major private television channels, FMLN (50%) and ARENA (33%) took the bulk of paid propaganda, well ahead of GANA (7%) and other political parties (10%), whereas in the news and election programmes ARENA (31%) and FMLN (30%) held sizeable shares, with GANA (12%) well behind. In state media, although the government dominated the news and election content on Radio Nacional, a more balanced coverage was noticed on Televisión Nacional.
The campaign, highly visible in the public and private media with national coverage, was also quite active in local media. It offered a great variety of interviews and debates both at legislative and municipal levels, focusing on high stake constituencies, where the tone of the campaign was heated. Social media was widely used by political parties and candidates to promote their programmes and publicise campaign events. No online hate speech or related complaints were registered, however defamatory accusations between contenders were observed.
No formal complaints from political parties or candidates in relation to media access were lodged at the TSE. FMLN criticised the majority of private media for portraying conservative editorial lines hostile to the government. ARENA denounced a discrepancy in access to state television. GANA complained of a lack of access to state radio. Nevertheless, state media, with some delays, complied with their obligation to offer political parties free airtime for their propaganda. The law is silent on free airtime for independent candidates, who were not included in the programme.
The institutional propaganda to promote public institutions’ achievements in the one-month period ahead of elections is expressly prohibited by law. Nonetheless, the Ministry of Public Works, other state institutions and agencies and municipalities sometimes advertised significantly in the public and private media. No complaints were lodged and no action was taken by the TSE to enforce the regulation.
Pressure on media or journalists persisted throughout the campaign and had the effect of self-censorship. Canal 29 (Gentevé), the main private television channel supporting FMLN, claimed to be under judiciary pressure during the campaign after a December 2017 decision to place the channel under management of the National Council for Properties Administration (CONAB).
Observers enjoyed an effective freedom to observe and report on the elections without restrictions.
More than 1,700 national observers were accredited for these elections. Most observed under umbrella organisations such as Fundaungo (500), Social Initiative for Democracy (550), Salvadorian Foundation for Social and Economic Development (285) and Salvadorian Foundation for Democracy and Social Development (400). They experienced no impediments to observe. The Human Rights Ombudsperson deployed 1,146 observers to monitor elections. Contrary to previous years, no LGBTI groups observed the elections.
Over 900 international observers were accredited including the European Union (80) the Organisation of American States (28), International Republican Institute (14), Inter-American Union of Electoral Bodies (40) and United States of America Embassy (29).
Despite several successful female candidates, women are constrained by traditional roles, gender violence and lack of financial support to seek public office.
In El Salvador women represent 53.1% of the electorate. Some 237 women stood as candidates and 316 as substitutes for the AL and some 8,649 women for local councils which surpasses the 30% legal quota. Despite legal advancements, the adoption of measures to promote the election of women mayors could further enhance women’s representation.
The EOM observed that at several political meetings deprecating language against women was used. While women candidates in general experienced more obstacles to campaign than men, some female candidates had high visibility as in San Salvador, Antiguo Cuscatlán, Santa Ana, La Paz and Ilobasco. EU observers were made aware of many instances of intra-party gender based discrimination. One formal complaint was lodged at the Attorney General’s Office against an incumbent mayor for the inappropriate use of language against a female candidate.
Women remain underrepresented in the electoral administration, especially in the JEDs. Two woman magistrates sit among the five principal TSE board members.
The TSE made significant efforts to protect the political rights of some vulnerable groups, including persons with disabilities and LGBTI voters.
Fifteen persons with disabilities were employed by the TSE for these elections. Training material, including the official polling station guidebook, is specific on the necessity to provide voters with disabilities different types of assistance, including Braille envelopes, special voting booths and the possibility to request assistance from a person of their choice. One week before election day, the TSE announced that 94 voting centres were being refurbished to improve access for the elderly and persons with disabilities.
Four people representing the LGBTI community, including two transgender women, were included in the TSE trainers’ recruitment plan. Polling station staff was specifically instructed to accept the identification of transgender people even when the picture on the DUI or on the voter’s list did not correspond to the physical appearance and/or chosen gender identity of the voter.
Despite the presence of indigenous voters in six of the country’s 14 departments, and the fact they account for ten percent of the overall population, political parties were not observed to pursue specific strategies to obtain their vote.
The national legislation does not provide specific measures to increase the political participation of indigenous people, and no indigenous candidate as such was presented by any political party. Despite continued economic, social and cultural discrimination of the indigenous population, no quota or affirmative action measures are foreseen by law. Contrary to the 2009 and 2012 elections, there was no indigenous observation of the last three elections.
Procedures for voting, counting and transmission of results were well-implemented, in a transparent process that offered sufficient guarantees.
The EU EOM’s 80 observers visited 365 polling stations throughout the day in the country’s 14 departments; opening was observed in 36 of these polling stations. Observers submitted 36 reports on the transmission of results from polling centres across the country. The EU EOM consolidated information from 395 observation reports.
The TSE reported it had established all 9,422 polling stations within two hours of the official opening time. In 25 of 36 polling stations where the opening was observed, the opening was delayed by up to 90 minutes due primarily to minor organisational issues. Of the 28,000 polling station staff appointed through a lottery system, only around 7,000 were finally integrated into polling stations. Some appointed through this system presented for duty but were turned away as the TSE had in the interim filled these spots with political party nominees. On a positive note, all poll workers had been previously trained and the TSE did not have to resort to appoint untrained voters queuing to vote. The excessive presence of partisan activities in and around polling centres contravened the electoral silence period and as such did not contribute to a neutral voting environment.
A well-organised election day progressed calmly, although with a decline in voter participation. EU EOM observers assessed the overall conduct of polling operations as “very good” or “good” in 97% of observed polling stations. The EU EOM observed that procedures were applied and respected with only minor exceptions. The secrecy of the vote was respected in the majority of observed polling stations. Lack of proper information about the precise validity of national identity cards (DUI) resulted in disparity of treatment in a few cases. The presence of political party representatives contributed to the transparency of the process, although the EU EOM noted that the two main parties were over-represented in many polling stations. Over 75% of observed polling stations were accessible for persons with disabilities.
Closing and Counting
EU EOM observers assessed the counting process as “very good” or “good” in 69% of the observed polling stations. The need to undertake complex counting procedures for the legislative poll and complete lengthy results protocols was overly cumbersome for poll workers. The municipal vote tally process was much more fluid and was assessed as “very good” or “good” in 100% of the observed polling stations. Party agents were observed to be well-trained, and as they received a copy of the polling station results protocol they could subsequently verify these against results published at the national level.
Transmission of Results
By 08:00 on the morning after election day, TSE reported that they had already received over 90% of all protocols. EU observers followed the scanning and transmission of results from the 14 departments and assessed the process as “very good” or “good” in 97% of observed polling centres. At the national level, the EU EOM followed the reception and digital entry and aggregation of results protocols. The transparency of the process was enhanced by the TSE publishing online copies of original results protocols. The EU EOM will remain in country to follow the tabulation and publication of final results.
A process characterised by a low level of electoral disputes and lack of effective sanctions.
The TSE exercises jurisdictional competencies and adjudicates electoral disputes presented by parties, candidates and for the first time in 2018, also by individuals who demonstrate a proven legitimate interest. The TSE also opens administrative procedures ex oficio. The TSE sanctioned with fines five cases of breaches of campaign rules out of a total of 63 cases initiated. The TSE reviewed a low number of appeals presented by Departmental Electoral Boards for revision.
The Electoral Prosecutor, mandated with the obligation of legal oversight of the election process, received a total of around 75 cases of alleged electoral infractions or fraud. All cases are under investigation.
The Constitutional Chamber is the highest appeal instance regarding cases which affect constitutional rights. It received 15 cases for review which are currently under appreciation. The Chamber prioritises the review of cases according to criteria of urgency and timely justice. Three cases pertain to the revision of registration of candidates after administrative appeals were exhausted and one requests the review of the presidential veto regarding expired national identity cards (DUI).
The European Union was invited by the Government of El Salvador to observe the 2018 legislative and municipal elections, and the EU signed Memoranda of Understanding with the Government of El Salvador and the Supreme Electoral Tribunal (TSE) on 25 January 2018. The EU EOM is led by Carlos Iturgaiz, a Member of the European Parliament from Spain. The mission comprises a core team of nine analysts who have been in El Salvador since 27 January, 28 Long Term Observers (LTOs), who have been present since 4 February, and 28 Short Term Observers (STOs), who have been present since 26 February. In addition, the mission is joined by 20 Short Term Observers from the EU member states diplomatic community resident in El Salvador and a five-person delegation of Members of the European Parliament, led by Javier López MEP from Spain. Observers were drawn from 27 EU member States as well as Norway.
The EU EOM remains in the country to observe final results tabulation and post-election developments. The EU EOM will publish a final report, containing detailed recommendations, within two months of the conclusion of the electoral process. The EU EOM assesses the whole electoral process against international obligations and commitments for democratic elections as well as the laws of El Salvador. The EU EOM is independent in its findings and conclusions and adheres to the Declaration of Principles for International Election Observation signed at the United Nations in October 2015.
The English language version of the EU EOM preliminary statement is the only official version
For media enquiries, please contact Alessandro Gori, EU EOM Press Officer
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 Further regional commitments include the Charter of the Organization of American States, the Inter-American Convention against Corruption, the American Convention on Human Rights and the Inter-American Convention on the Granting of Political Rights to Women.
 The 1998 Constitution of El Salvador; the 2013 Election Law, the 2013 Political Party Law, the 2010 Law for Non-Partisan Candidates, the 1995 National Registry of Natural Persons Law and its Regulation, the 2001 Law on the Issuing of the Identity Document, the 2005 Rules for the Residential Vote, the 2013 Law for Out-of-Country Voting at Presidential Elections, and the 2014 Regulation of Election Observation.
 Some choices – such as electronic vote counting – could not be made because of financial constraints.
 Election Law article 142. The Constitution, the Election Law and the Special Regulation for the Nomination of Independent Candidates detail the criteria for the registration of candidates.
 On 5 February, the EOM launched qualitative and quantitative monitoring of four television channels – public: Televisión Nacional de El Salvador (TVES); private: Canal 6; Canal 19; Canal 29 (Gentevé); three radio stations - public: Radio Nacional de El Salvador (RNES); private: Radio Maya Visión; Radio YSKL; Daily newspapers - private: Diario Co Latino; El Diario de Hoy; La Prensa Gráfica.