SAN SALVADOR – El Salvador President Nayib Bukele has pitched a proposed law requiring people and organizations who receive foreign funding to register as “foreign agents,” following the lead of countries like the United States.
When the U.S. passed its own Foreign Agents Registration Act in 1938, World War II was on the horizon and the U.S. government was concerned about the spread of Nazi propaganda.
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The very different political context in today’s El Salvador is raising concerns about the proposal that could be voted on as soon as Wednesday.
Two years into his term, Bukele enjoys high popularity. Earlier this year, his supporters gave his party a sweeping electoral victory allowing them to take control of the Legislative Assembly. The new congress in turn immediately replaced the justices of the Supreme Court’s constitutional chamber and the attorney general, all of whom had proved an obstacle to some of Bukele’s moves, especially early in the pandemic.
“To be like developed countries, we have to do what they do, not what they say,” Bukele tweeted last week. “If that law is good for the United States, why wouldn’t it be good for us?”
After initially offering an interview with one of the president’s legal advisers to discuss the legislation, Bukele’s office did not follow through. The administration has said the law is necessary to protect citizens from foreign meddling.
“Since Bukele and his coalition eliminated virtually all institutional checks on his power, nongovernmental institutions and independent media are among the few voices in El Salvador in a position to hold the government to account,” José Miguel Vivanco, Americas director at Human Rights Watch, said in a statement. “If this bill is passed, Bukele’s administration will have a legal excuse to intimidate or effectively curtail the operations of independent civil society and media groups.”
The proposed law would require any person or organization in El Salvador carrying out activities “that respond to interests, controlled or financed, directly or indirectly, by a foreign principal” to register as “foreign agents.” Failure to register would allow the government to shutter an organization. In committee, lawmakers increased the proposed financial penalties and added the possibility of prison time.
Registered foreign agents would be barred from “realizing activities for political or other ends, with the objective of altering public order, or that put at risk or threaten national security, the social and political stability of the country.”
While Bukele says the legislation is modeled on the U.S. law, the U.S. version seeks to make transparent foreign governments’ or organizations’ political work in the United States. For example, their lobbyists have to register as foreign agents, but their work to influence U.S. policy is allowed.
The El Salvador law, however, explicitly prohibits such political activity.
The government would furthermore apply a 40% tax to those funds coming from foreign sources to registered foreign agents.
The legislation would exclude diplomatic missions, international aid agencies and humanitarian assistance entities, as well as those involved in religious, health and academic activities.
Concern had been growing in El Salvador’s civil society throughout the year. The replacement of the court justices left those who criticized the administration feeling as though they would have no legal recourse should the government turn its sights on them.
A foreign agent law passed in Nicaragua last year. Similar legislation has been spreading around the globe.
In a piece published last year in the Duke Law Journal, Nick Robinson, a legal adviser for the International Center for Not-for-Profit Law, warned that the United States law, better known by its initials as FARA, posed a threat for not only the U.S., but other countries using it as a model.
“FARA’s broad language makes it particularly susceptible to politicized enforcement,” Robinson wrote. “Although ostensibly a transparency statute, FARA can be ‘weaponized,’ using the stigmatizing—and frequently misleading or inaccurate—label of ‘foreign agent’ and the burdens of registration to punish dissenting or controversial views.”
He noted similar laws being enacted in Russia and Hungary that were used to persecute civil society. Laws passed in Australia and Israel raised concern in those countries as well.
Closer to El Salvador, the effects of the law in Nicaragua were dramatic. In August, Nicaragua cancelled the registration of at least 45 NGOs for allegedly not fully reporting their activities to the government.
Guatemala’s congress reformed its law governing nongovernmental organizations last year. It brought additional government oversight to their activities and funding sources and gave the country’s Interior Ministry broad latitude in determining compliance. Non-compliance, as in Nicaragua, can be punished with cancellation of organizations’ registration.
One of that law’s articles opened the possibility of legal action being brought against organizations considered to have altered public order. A Guatemalan far-right organization has sued two organizations representing farmworkers for promoting protests against the government.
Jorge Santos, general coordinator of the Protection Unit for Guatemalan Human Rights Defenders, said the reforms there “became the first step on a path to hinder the financing for nonprofit nongovernmental associations that defend human rights and (work for) the development of the population.”
Echoes of that motivation could be heard in El Salvador’s Legislative Assembly when the “foreign agents” legislation was introduced.
Last week, lawmaker Christian Guevara, leader of Bukele’s New Ideas party in the Legislative Assembly, called out some organizations by name.
One was Cristosal, a humanitarian organization founded by Anglican bishops to fund justice and human rights promotion efforts in El Salvador.
“Many of these organizations, many of these NGOs, talk about transparency,” Guevara said. “There’s Funde, there’s Cristosal, various associations receive millions of dollars every year and today for the first time they will have to reveal the origin of those funds and the destination and execution of those funds.”
Guevara went on to say that Salvadorans will be surprised to learn “who these people are sending disguised aid to El Salvador to finance marches, to finance violence, to finance acts of terrorism, to finance politicians, to finance political parties.”
Noah Bullock, Cristosal’s executive director, said he thought his organization should qualify under the exemptions in the proposed law, but Guevara’s comments seemed to indicate otherwise. Bullock said he would support genuine efforts at improved transparency, but noted his organization already submits monthly lists of their donations to the Treasury. They also share audits with government and produce reports about their activities.
“So there isn’t really a gap in mechanisms for transparency about what organizations like ours are doing, which is one of the reasons why we wonder what the real motive behind this new foreign agent law is,” Bullock said.
According to tax documents posted on Cristosal’s website, in 2020 it received funding from the U.S. government through the U.S. Agency for International Development, George Soros’ Foundation to Promote Open Society and the Ford Foundation among others.
Another potential target named by Guevara is the independent news outlet El Faro, a place he worked at nearly two decades ago. El Faro has been critical of Bukele’s administration.
“I was El Faro’s first reporter,” Guevara tweeted. “I was there for five years without earning a cent. That is independent journalism. Ask how much the bosses of that ‘newspaper’ earn now and you’ll be surprised. That’s why they’re crying now.”
Sergio Arauz, an editor at El Faro, said the legislation aims to pursue critical voices.
“It looks to destroy civil society organizations that Nayib Bukele considers uncomfortable,” Arauz said. “The law is another attack on the journalism that El Faro and other independent media do.” He added that Bukele had said publicly last year that the Treasury was investigating El Faro for alleged money laundering.
Arauz said international organizations account for nearly two-thirds of El Faro’s funding.
Cesar Castro Fagoaga, president of the El Salvador Journalists Association, said the legislative proposal has to be viewed within El Salvador’s current political context and that the comments by Guevara are more revelatory than the legislation itself.
Castro, who is also editor of the news magazine Factum, said Guevara made it clear that the motive is “to muzzle any critical voice, whether it be from civil society or in particular media outlets that receive international assistance.”
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Sherman reported from Mexico City. AP writer Sonia Pérez D. in Guatemala City contributed to this report.