840.51 Frozen Credits/10824
The Ambassador in El Salvador (Thurston) to the Secretary of State
[Received July 1.]
Sir: There were transmitted to the Department with the Embassy’s despatches 169 and 175, of March 10 and March 12, 1943,42 draft copies of a fund-freezing law and a law governing the sale of properties belonging to firms or individuals on the proclaimed list, which it was understood would soon be approved by the National Assembly and made effective by the Executive Power.
It recently became apparent, however, that although the proposed laws had been approved by the Assembly, the Salvadoran executive authorities were reluctant, if not entirely unwilling, to put them into operation. The Minister of Finance, Dr. Samayoa, with whom Mr. Maleady and Mr. Ryan43 had several exhaustive conversations on the subject, held tenaciously to the contention that there are grave Constitutional objections to the contemplated measures, and cited in support of his argument the following articles of the Salvadoran Constitution: Article 34 (forbidding confiscation and making the officials who violate the prohibition responsible both as to their persons and properties); 37 (guaranteeing persons as to their life, liberty, and property); 39 (trial by previously existing courts under previously existing laws); 42 (laws not to have retroactive effect); 50 (inviolability of property); and 177 (responsibility of officials for [Page 325] crimes—delitos—committed while in office). Attempts to show that the Constitutional provisions enumerated need not be construed to prevent the enactment of the desired laws were unavailing, as were other points adduced, such as the fact that our own Constitution contains strong prohibitions against the confiscation of property—despite which, wartime measures affecting enemy alien property in the United States have not been nullified by the American courts—and the Embassy’s opinion that even without the enactment of new legislation the desired objectives could be attained under the laws of March 7 and June 4, 1942.
When it had become clear that this was the situation, it was decided that I should take up the subject directly with President Martínez and accordingly, on June 25, accompanied by Mr. Maleady and Mr. Ryan, I called on the President for that purpose. The Minister of Finance and the Minister and Sub-Secretary of Foreign Affairs44 were also present at the interview.
I began the conversation by stating to the President that the fine cooperation that has been given by the Government of El Salvador during the past year in connection with the blocking and sale of alien funds and properties had been greatly appreciated, and that it had been hoped that this cooperation would carry through to the final accomplishment of our objective of eliminating Axis interests through the enactment of certain legislation recently passed by the National Legislative Assembly. The President immediately replied that his Government was confronted in this matter by a problem of Constitutionality—since not only the proposed measures but also those of last March and June were unconstitutional and could expose members of the Government, including himself, to punitive proceedings, and that the only solution of the problem lay in calling a plebiscite for the purpose of making the necessary amendments to the Constitution.
It is becoming increasingly obvious (and I was informed of the fact almost by direct assertion a few days ago by Señor Francisco Aguilar, a close associate of the President) that it is the intention to bring about General Martínez’ continuation in office for a fourth term. Inasmuch as the Constitution of 1939 (itself the product of a Constituent Assembly designed to make possible Martínez’ present third term) forbids succession in office, the only means by which this plan can be carried out is by another Constituent Assembly and change of Constitution. It is to be assumed that the President and his advisers would be glad to seize upon our desire to effect the liquidation of enemy alien interests in El Salvador as the pretext for convoking a Constitutent Assembly. In view of these considerations I promptly and explicitly stated that the convocation of a Constituent [Page 326] Assembly and the amendment of the Constitution were matters of such an intimately local nature, affecting the sovereign acts of El Salvador, that the Embassy could not be a party to, or be put in the position of being a party to, or responsible for, any action of the kind.
At this point, Mr. Ryan and Mr. Maleady took up the discussion on its factual basis, pointing out that the Salvadoran Government had proceeded with sales of Axis properties for more than one year under their laws of last March and June, and that it seemed inexplicable that the Government should now suddenly discover the constitutional hindrances cited, the more so as no challenge has been made in the courts. They stated that the American Constitution also prohibits confiscation but that we had sold Axis properties already vested and that no constitutional doubt on such war measures had ever been raised in the United States. The President and the Ministers present asserted that their constitutional apprehensions are not based on doubts but on conviction, and that the only solution was to call a Constituent Assembly in order to amend the Constitution.
President Martínez was pointedly asked whether it was the continuing policy of his Government to sell all Axis properties both real and personal. He replied that he would go ahead with such sales, but would confine them to stores and similar properties, and would not under present conditions endeavor to carry out the sale of agricultural properties. No explanation was forthcoming of the distinction drawn between the sale of stores, for example, and real property—but the President and Dr. Samayoa both remarked that agricultural properties can not be sold because the persons in charge of the Real Estate Registry Office (Registro de Propiedad Raiz) would not register such sales because they would not be constitutional. Dr. Samayoa also remarked that no one would purchase such properties because of the fear that the sale might be classified as illegal by a future government.
It was apparent that the President and his associates were attempting to impress us largely by the vehemence of their assertions and that they were uninformed with regard not only to the Constitution of the United States, but that of El Salvador: for example, they apparently believed that the Constitution of the United States could be modified by the Congress alone; also that an Act of Congress in itself was “constitutional” and not subject to interpretation by the Supreme Court. Furthermore, they attempted to maintain that the Salvadoran Constitution does not grant any powers to the Supreme Court with respect to legislative action. I remarked with respect to this observation that I had noticed in Salvadoran legislation that the preamble generally contained a clause stating that the opinion of the Supreme Court had been heard with respect to the proposed legislation and that [Page 327] it was to be presumed that legislation thus reviewed in advance by the Supreme Court would be in conformity with the Constitution, and it was admitted that this is true—but that it would not absolve the Government from the Constitutional penalties previously mentioned.
At the conclusion of the interview I stated to the President that I believed the situation was that the Salvadoran Government had undertaken and would continue the blocking and sale of enemy alien firms, but that it had come to be of the opinion that its action in this respect was unconstitutional and that a means would be sought to overcome this difficulty. I stated again that insofar as a plebiscite or modification of the Salvadoran Constitution was concerned, the matter was definitely one of the exclusive sovereign concern of El Salvador in connection with which the American Embassy could assume no responsibility of any kind. The President stated that that was the situation.
Respectfully yours,