Disputing the Underpinnings of Impunity

In his inaugural speech, President Mauricio Funes upbraided the outgoing ARENA for “governing for the few, being complacent toward corruption and both fearing and abetting organized crime.” He promised a different government, one not influenced by “family privileges, abusive patronage and murky godfather vices.” But the limitations on fulfilling this pledge are greater than the possibilities.

Elaine Freedman

The fight against corruption was one of the most attractive election promises made by the Farabundo Martí National Liberation Front (FMLN) and its candidate Mauricio Funes. Starting with his first official speech, when the FMLN proclaimed him as its presidential candidate in November 2007, Funes said: “As a candidate, President Saca assured that his government would see an end to the fiesta of crooks. What has happened in the last three years? Not only has the fiesta not ended, it has moved to the presidential offices! We really will fight crime and put an end to the fiesta that all those unsavory hoods are celebrating.”

The carnival of the crooks

El Salvador is emblematic for its level of corruption and impunity. According to the latest report issued by Transparency International, which is dedicated to measuring the corruption levels in different countries, El Salvador gets a 4.2 rating on the transparency scale, “which indicates high corruption levels.” It ranks 59th in a list of 133 countries distinguished for their corrupt practices.

It is the only Central American country that has never tried a President, former President or Cabinet minister for acts of corruption, despite countless accusations, cases and rulings against the last four Presidents and their top officials, all of them from the Nationalist Republican Alliance (ARENA). The administration of Francisco Flores was a particularly pathetic case: 13 officials including Flores himself were mentioned in connection with “irregularities in enrichment” by the Probity Section of the Supreme Court of Justice.

El Salvador is the Latin American country with the greatest human rights debt for crimes against humanity during its armed conflict. Former President Alfredo Cristiani, recently elected president of ARENA’s executive committee (COENA), was charged in Spain this year, together with 14 military officers, for the murder in November 1989 of six Jesuit priests and the two women who worked for them. The judge refused to try the case against Cristiani, however, arguing that cover-up is not a universally prosecuted crime.

One of the biggest current concerns is the growth of organized crime, which has expanded into drug trafficking, arms trafficking, money laundering, large-scale robbery and trafficking in people, with proven nexuses to the National Civil Police. In the last 20 years the “fiesta of crooks” burgeoned into a carnival.

On March 15, the people voted for a different kind of presidency in what amounted to a cry for change. But now that the time has come to renew a good number of second-level elected officials, there is evidence that the underpinnings of impunity exceed the grasp of this popular victory. The election of these officials, which falls to the Legislative Assembly, shows there’s a long way to go before this change will be generalized to a national level. It also demonstrates that justice’s scales still tip to the negative side when weighing up the correlation of forces.

The institutions at stake today

According to the Constitution, the following are elected by the Legislative Assembly: the Supreme Court justices and chief justice, the magistrates and president of the Supreme Electoral Tribunal (TSE), the president and magistrates of the Accounts Court of the Republic, the attorney general and chief public defender, the human rights ombudsperson and the members of the National Judicatory Council (CNJ). All require a qualified majority of Assembly votes (56 of the 84), with the exception of the Accounts Court officials, which only require a simple majority (half plus one).

The Accounts Court dates back to 1940, the Offices of Attorney General and Chief Public Defender were established in the 1950 Constitution and the CNJ was only created in 1983. The Office of Human Rights Ombudsperson and the TSE were born of the Peace Accords, as was the CNJ in its current form.

It is often argued that second-tier officials can’t be elected by popular vote as they require a particular technical profile, but that wasn’t always so. Three of the five justices of the first Supreme Court, established in the 1824 Constitution, were elected by popular vote. Not until 1886 was it established that the Legislative Assembly would elect all the Court’s members.

José María Méndez, lawyer and general coordinator of the Forum for the Defense of the Constitution, recalls that the mechanism established for selecting second-tier officials was established in the 1950 Constitution, during the rule of the Revolutionary Government Council following a coup. The President at the time was Lieutenant Colonel Óscar Osorio, whose Revolutionary Party of Democratic Unification set out to imitate Mexico’s Institutional Revolutionary Party in many respects.

“That was when the model was defined that is in existence up to now, with sometimes important changes,” explains Méndez. “The real power, which is economic, determines the existence of an official party with its majority in the Assembly. This legislative majority guaranteed they could name whoever they wanted to win the second-tier elections. And there was always an opposition party—at that time the Renovating Action Party—which didn’t have enough votes block the majority party.” That made it possible to guarantee the continuance of authoritarian ways with a democratic facade.

A look at the functions of each of these national institutions shows that almost all have their hands on a piece of the much-coveted justice. As a whole, they are the ones that are supposed to ensure the fight against corruption and impunity in Salvadoran society. The Attorney General’s Office is responsible for initiating investigations, the Supreme Court for judging the facts and the Office of Human Rights Ombudsperson for watchdogging the whole process. The Accounts Court is responsible for controlling the use of public goods while the Supreme Electoral Tribunal is supposed to guarantee a clean electoral process. The Chief Public Defender’s Office is responsible for providing a fair process to those most in need, including workers who are unfairly dismissed.

The historical divvying up of the pie

María Silvia Guillen, director of the Foundation of Studies for the Application of Law (FESPAD) explains that “All these posts have become a coveted pie that’s put out on the table every so often and the political parties sit around that table and begin to negotiate quotas.”

“Historically the Attorney General’s office goes to ARENA,” says Guillen, “and should anyone ask what law determines that, the answer is none. These are party deals the citizenry simply has to accept as reality. The Supreme Court of Justice and the CNJ are normally split up among the majority parties: ARENA, the FMLN, the National Conservative Party (PCN) and possibly the Christian Democratic Party (PDC). The Chief Public Defender’s Office goes to the PDC and the Accounts Court to the PCN, while the Office of Human Rights Ombudsperson has remained somewhat independent, although ARENA is saying that it should be its turn because it has always gone to the ‘opposition.’”

The first test:
The Legislative Assembly

In the run-up to the inauguration of the Funes government, people thought this would finally be the moment for changes. But May 1 was the first test and the outcome favored the rightwing forces. In the middle of negotiations between the two majority parties, the FMLN and ARENA, to establish a mechanism to alternate the Legislative Assembly presidency, ARENA cut a deal with the PCN and PCD, combining their 48 votes in favor of PCN representative Ciro Cruz Zepeda. That maneuver came only hours after Cristiani officially regained the reins of the party.

It was the new Assembly’s first test and the Right showed its capacity to keep control of the legislative body. The next day, Cristiani defended his move in a national morning newspaper: “ARENA will never abandon those who were its closest friends and allies. The FMLN has to take this into account. We’re not going to do anything to jeopardize the rightwing alliance. If the FMLN ‘s strategy is to divide us, they’ll never pull the wool over my eyes.”

The second test:
National Identity Registration

Fourteen days later, the new Legislative Assembly president called an extraordinary meeting of the Electoral Reforms Commission to rule on two proceedings that would reform Article 80 of the Electoral Code and three articles of the Law Creating the National Registry of Natural Persons (RNPN), which issues and oversees the Uniform Identification Documents (DUIs) but was turned into a means of electoral fraud by the ARENA governments.

The objective of Cruz Zepeda’s call was to bypass the due procedures and underhandedly shift the responsibility for appointing the RNPN president from the President to the TSE. Constitutionally a magistrate loyal to the governing party—now the FMLN—will be president of the TSE, but the Right will probably continue to have a majority, even after the new election that will have to be held for reasons explained further on.

The third test:
The Attorney General’s Office

A qualified majority is needed to fill the posts currently on the table—attorney general, chief public defender and the Supreme Court magistrates. That means the Right has to negotiate with the FMLN.

ARENA’s original card for attorney general had already been burned. The party initially backed the reelection of Attorney General Félix Garrid Safie, but had to change candidates after he was found to be involved in a corruption scandal with the now deceased former ARENA departmental director in San Salvador. But it had another card up its sleeve: early this year, just before losing the presidential elections, ARENA moved some of its people to “safe” posts outside the executive branch. In this pre-electoral chess game, Deputy Public Security Minister Astor Escalante renounced his post on January 15 and hours later was nominated as deputy attorney general. At that point the anonymous author of a web page predicted the following: “Current Attorney General Garrid Safie is close to finishing his three-year constitutional mandate. To elect a replacement, the Legislative Assembly needs the vote of two thirds of the representatives, a difficult figure for ARENA to get, since it needs the FMLN’s votes. It thus wouldn’t be strange for several months to go by before they reach an agreement.”

And that’s just what happened. Safie’s term ended on April 19. The Legislative Assembly managed only to pare the list of 21 aspirants down to 10, getting rid of those who clearly did not meet the requirements or had no shot at getting the 56 votes needed for political reasons. Escalante was one of those eliminated, yet with his institution now headless, he declared himself “acting attorney general,” and was endorsed by the rightwing bloc in the Legislative Assembly. If that weren’t enough, he proposed that his name be put back on the list of candidates for the permanent post.

Small but growing opposition

Astor Escalante is a former litigant of the country’s most important business organization, the National Association of Private Enterprise (ANEP). A petition to investigate his participation in the 2007 massacre at the Apanteos Penal Center when he was deputy public security minister has been languishing in the Attorney General’s Office. And while he has been able to keep that at arms length by illegally keeping himself in the attorney general post, opposition to this arbitrariness has been snowballing.

When the Attorney General’s Office first found itself without a chief, a Movement for the Election of an Independent Attorney General was created almost spontaneously. A group of lawyers, some NGOs and the associations of victims of human rights violations during the armed conflict came together to protest what they considered a process plagued with irregularities and to demand transparency in the election of an independent attorney general. They have reminded Legislative Assembly members that it is their constitutional duty to hold this election before the former occupant’s term ended and that the Penal Code includes actions to establish responsibilities should that duty not be fulfilled.

A courageous judge

In the municipality of Mejicanos, to the north of San Salvador’s Metropolitan Area, the 2nd justice of the peace, Violeta Lino Mejía, said “no” to the de facto attorney general and “yes” to the Constitution. “The day the attorney general ended his functions so did the deputy attorney general because he hasn’t been elected by the Legislative Assembly,” ruled the judge. “On the morning of the 20th three attorneys showed up with summonses and were prepared for accreditation during the hearing.” The first hearing took place three days later and the defense requested that the case be declared null, given that the attorney present was not accredited by a constitutionally elected attorney general. The judge respected the defense’s petition because “starting April 19 the Attorney General’s Office was headless.”

This same scenario was repeated in the next 11 cases, all of which were appealed by the Attorney General’s Office. But to the surprise of Astor Escalantey and his underlings, the First Penal Chamber of San Salvador confirmed the judge’s position in all her resolutions.

A few days later, the judge received three death threats at her home. She’s convinced they’re related to the position she has adopted. “They’ve been unable to silence me through legal threats, so they resorted to the lowest thing they can do. I only want someone to shout in the desert for them to respect the Constitution.”

The Fourth test:
Supreme Court of Justice

The Supreme Court will find itself in a similar position to the Attorney General’s Office on June 30, when the five-year term of its 15 justices ends. “We’re getting close to a situation that could be critical for the country’s constitutionality,” warned Supreme Court Justice Ulises de Dios Guzmán, referring to the legal snarl provoked by the pre-selection of justices to the top court.

The pre-selection process got underway in March of this year under the baton of the Federation of Lawyers’ Association of El Salvador (FEDAES), which is controlled by a group of professionals with little credibility in their field. The National Judicatory Council undertook a complementary process, as it is responsible for presenting the final list to the Legislative Assembly. These mechanisms were established in the Peace Accords to democratize the election of these officials, but have ended up plagued by vices such as buddy-ism and repaying favors, according to jurists linked to the Movement for the Election of an Independent Attorney General.

The list presented to the Legislative Assembly was not to ARENA’s liking, since most finalists weren’t unconditionally loyal to it and some even had longstanding relations with the FMLN. It was an unprecedented move.

The web newspaper El Faro reported on a meeting of ARENA’s political commission—the party’s top authority at that moment—with the party’s outgoing and incoming legislative benches. According to El Faro, “ARENA defined three tasks: veto the three National Judicatory Council officials who proposed their own names on the list of Supreme Court justice candidates, veto another of the candidates on that list (Fabio Castillo, former FMLN general coordinator) and give up on the battle over Safie (for attorney general).”

They used the first point to argue that the pre-candidate list was flawed and the process would have to be redone. In fact, there’s ample consensus among interested parties that the three CJN members’ self-inclusion on the pre-candidate list was an abusive action that all label as anti-ethical and some as unconstitutional.

But ARENA used it to block the whole justice election process. Deputy Tourism Minister Michelle Gallardo, who is also a pre-candidate aspirant, filed suit with the Supreme Court, arguing that the CNJ members had violated her right to be elected as a pre-candidate by including themselves on the list. The Court accepted the suit and ordered the Legislative Assembly to suspend the appointment of the new justices until Gallardo’s case is resolved.

The deputy minister’s suit appeared to be groundless. It’s hardly sustainable to argue that the action of the CNJ members jeopardized either her or anyone else, because there was no assurance in any event that she would have been chosen had the three been excluded. And whatever the merits of her case, it is highly irregular for the Legislative Assembly to be ordered not to comply with its constitutional duty when it had nothing to do with preparing the list. Lawyer and legal analyst Jaime Martínez called the decision “unusual, unprecedented and legally groundless” and suspects that “the ease with which the Court accepted this suit suggests we are witnessing something already agreed to.”

Be that as it may, the new COENA president, Alfredo Cristiani, certainly looked pleased. He had earlier commented that “If the governing party thinks it can take over the Court with a list as malevolent as the one the CNJ released, ARENA’s going to stop them in their tracks. We’re not going to allow democracy to be put at risk.” The fear that the FMLN could “take over the Court” obviously has nothing to do with the self-appointing, particularly as the three CNJ members involved are neither linked nor sympathetic to the FMLN.

How did they make such fortunes?

Supreme Court Magistrate Mirna Perla says “the economic power sectors want to tie up the institutions that might go after them. The huge fortunes they have amassed here have been based on tax evasion, drug trafficking or money laundering. That type of thing can’t be done unless you’re in the highest spheres of power.” In the case of the Supreme Court magistrates and the attorney general, where such “tying up” would require an agreement with the FMLN to achieve a qualified vote, ARENA has no choice but to hinder the process.

In recent years, the Court has been responsible for decisions such as removing from the Probity section the power to investigate irregularities in declarations of capital wealth. It has also protected ARENA policies that threaten national sovereignty such as the dollarization policy in effect since 2001 and the presence of a US army drug monitoring base with diplomatic immunity for all its personnel.

Another case was to back the Supreme Electoral Tribunal’s decision to prolong the existence of the PDC, CD and PCN parties, even though the Electoral Code required cancellation of their registration for failing to get enough votes in the 2006 elections. And then it backed the PCN’s inclusion in the Supreme Electoral Tribunal. Even in this year’s elections the PCN won all of its 11 Legislative Assembly seats in the second round of counting what are known as “residual votes”—those left over after the first seats are given to candidates who won the electoral vote quota. It is thus no accident that this party was given the presidency of the Legislative Assembly in the person of the discredited Ciro Zepeda, who will have the task of electing the heads of the two watchdog institutions and the Supreme Court.

“It’s not that ARENA fears an attorney general or magistrates who respond to the FMLN’s party line,” concluded Jaime Martínez, “It fears an independent attorney general and an independent court.”

How far will the FMLN go
in cutting deals with ARENA?

On Friday, May 22, Salvadorans learned of a pact signed the previous day by outgoing President Elías Antonio Saca, incoming President Mauricio Funes, COENA president Alfredo Cristiani and FMLN General Coordinator Medardo González. The pact’s essence is a series of economic agreements that include reorienting loans and approving the sale of bonds to give a now-bankrupt government some liquidity and allow it to pay pending debts. In the pact’s final agreement, which is slightly out of place alongside the other points, they pledge to procure the election of “independent, impartial professionals who are honest in their posts” for attorney general and Supreme Court justices.

But there are growing doubts over what was really agreed to in the pact. Jaime Martínez’s analysis is that “the FMLN doesn’t have the capacity to put in an attorney general loyal to its party, but ARENA does. Cutting a deal for the attorney general would be the FMLN’s worst error.”

Pending tests

In the coming months, election of the TSE members and the chief public defender will be at the center of the debate, while next year all eyes will be focused on the election of a new head of the Accounts Court. In the case of the TSE the Constitution establishes that the presidency goes to the party that won the presidential elections, with the two runner-up parties having the second and third magistrate seats. The Legislative Assembly then selects the last two members based on Supreme Court nominations. The March 2009 elections left the third magistracy vacant because only two parties participated. The Legislative Assembly is expected to resolve this by including a PCN representative, thus guaranteeing a majority correlation favoring the Right.

The only person interested in the chief public defender’s post is the current incumbent, who is promoting his own re-election. There’s no doubt about this institution’s importance, since it is in charge of defending the poor and workers, but its own inefficiency has made it of little interest.

The unions could take an interest in it because part of the public defender’s mandate is to defend unjustly fired workers. But it seems that the effort to get a lawsuit moving in the Chief Public Defender’s Office is so exhausting and the results so minimal that most unions try to find the money to hire their own lawyers. Victims of penal system injustices might also show an interest, given that the institution should work on their behalf, but this is a difficult population to organize and the social and grassroots movement still doesn’t identify with its needs.

The Right will find it easiest to elect the head of the Accounts Court of the Republic, which must be done in 2010. The election requires only a simple majority vote, so the Right won’t need to negotiate with the FMLN to guarantee someone it trusts and isn’t interested in letting the population know what really happens to the country’s public funds. As Maria Silvia Guillen explains, “Apparently nobody realized there was an Accounts Court during the Peace Accords, because they didn’t touch it. It’s a pending debt that will require a constitutional reform.” In the meantime, any dreams of justice in the Accounts Court are still a long way off.

Any change in the system of corruption and impunity?

The government of Mauricio Funes took office on June 1, and the new President issued a warning in his inaugural speech: “Change will not begin just through the individual will of a President.”

The executive branch can change the vision of and approach to public security with which this institution gears its policies, and could make important changes in the National Civil Police; in fact, Funes has already pledged to clean up this state institution. He can also see to it that the officials he named to his Cabinet are constantly evaluated according to the criteria of sensibleness and honesty that he mentioned during his inaugural speech.

But beyond that, there are more limitations than possibilities. The system is designed to favor those who have more and until that system is changed, it will be hard to achieve a correlation of forces that can rack up a positive score for justice.

Elaine Freeman is a grassroots educator and envío’s correspondent in El Salvador.

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