ISSN 2330-717X

El Salvador: Broad Powers Limit Accountability, Says HRW

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The government of El Salvador’s decision to suspend public information requests, including for Covid-19 individual test results and quarantine conditions, is putting the health of Salvadorans at risk, Human Rights Watch said. The decision strips the right of access to information of all meaning.

The Access to Public Information Agency in El Salvador (IAIP, in Spanish), charged with carrying out the Access to Public Information Law, has suspended all hearings and processes to comply with the state of emergency in place to address Covid-19 since March 20, 2020. Freedom of information procedures have been modified in many jurisdictions stemming from Covid-19 response measures. This is particularly problematic for Salvadoran residents in quarantine, as their doctors and officials are failing to provide them with essential information on the number of days they are to be held in quarantine facilities and the results of their Covid-19 tests. The limits on public information requests leave them with no recourse.

“At a time when the virus is spreading, it is essential for people to know their Covid-19 test results to protect their health and the health of others,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Instead of ensuring that the system to request this vital information is working, President Bukele appears to be prioritizing opacity, which not only undermines his government’s response to the health crisis, but also severely limits accountability more broadly.”

The suspension has also reduced citizen oversight of the government’s response to the pandemic, including emergency spending. El Salvador is reportedly one of the countries with the worst access to public information during the pandemic. Between March 21 and June 1, the Ombudsperson’s Office received over 200 complaints regarding violations of the right to access information. More than half of the complaints were from people locked up in quarantine centers seeking Covid-19-related information.

On March 14, the National Assembly declared a state of emergency to address the Covid-19 pandemic. The emergency law regulated a host of activities, ranging from restrictions on movement to the closure of schools. A few days later, the Assembly also suspended deadlines for administrative processes, including for public information requests, as public offices deemed not essential were closed. The deadlines remained suspended as of June 8.

The suspension of administrative processes has affected thousands of people held at containment centers, which are quarantine facilities for people who return from abroad or violate the nationwide quarantine. As of June 1, more than 14,000 people had been held at quarantine facilities since the beginning of the nationwide lockdown, on March 12. More than 2,000 people are currently being held, and the circumstances suggest that many if not all such cases constitute arbitrary detention. Many of these facilities are reportedly overcrowded and unhygienic, offering prime conditions for the virus to spread.

The Supreme Court has issued three rulings ordering the government to refrain from detaining people in containment centers just for violating the lockdown rules. As soon as the court released these rulings, Bukele issued public statements defying the court and continued with his policies of arbitrary detentions revealing a complete disregard for the rulings.

People in quarantine centers have protested the government’s opacity. The government’s response has been to send anti-riot police to the containment centers to end demonstrations. On April 2, the Supreme Court ordered the Bukele administration to “provide people with information about their health condition (test results) so they can receive treatment based on their current state of health.”

On March 23, the National Assembly authorized flexible rules for the executive’s purchasing procedures during the emergency. It explicitly permitted “direct purchases” of medical supplies and services necessary to prevent the spread of Covid-19, provided the executive presented monthly reports to the Assembly detailing how the government was using public funds. The government failed to comply.

In part due to the government’s failure to report how it used public funds to build a hospital, to purchase medical supplies, and to provide food baskets to people not receiving income due to Covid-19, the Assembly refused to extend the emergency law beyond May 16. The Bukele administration extended the emergency by presidential decree twice, despite Supreme Court rulings suspending the decrees’ effects, including one on May 22 in which the court ordered the executive and legislative branches to agree on an emergency law that protects “the fundamental rights of the country’s inhabitants amid the pandemic.”

Amid the legislative debate, and in response to the pressure from the public information agency and the public, President Bukele’s judicial adviser contended that if the government lifted the suspensions on administrative procedures, information officers would have to go to work and could be exposed to the virus. The information agency’s president said, however, that staff could work remotely, using various online platforms to provide information, whenever possible.

On May 30, the National Assembly issued a new emergency law, regulating the transition from a strict nationwide lockdown to a gradual reopening of the economy. It extended the emergency until June 15 and the suspension of administrative processes until June 10, but stated that the Access to Information Law was fully applicable and the government should provide information on its protocols to contain the pandemic, the number of people in quarantine facilities, confirmed or suspected cases of Covid-19, and government contracts, among other matters. That same day, Bukele tweeted that he will veto the law.

Under international law, certain rights may be restricted during times of emergency. According to the Siracusa Principles, which outline standards on permissible limits to rights included in the International Covenant on Civil and Political Rights, and a UN Human Rights Committee General Comment on states of emergency, any restrictions on rights must be lawful, necessary, and proportionate. States of emergency need to be limited in duration and any curtailment of rights needs to take into consideration the disproportionate impact on specific populations or marginalized groups.

Governments should ensure that citizens can get public information – particularly information about their own health – especially during the Covid-19 pandemic, prioritize information requests related to the public health emergency, and proactively report on the impact of the pandemic and on emergency spending, Human Rights Watch said.

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