El Salvador
The repeal of the Amnesty Law: A bittersweet ruling
The repeal of the terrible Amnesty Law
by a Supreme Court Constitutional Bench ruling
is news the law’s victims have every reason to celebrate.
They’ve been demanding it for almost a quarter of a century.
But the repeal was bound together with three other rulings
that affect the national coffers and guarantee privileges
for the wealthiest in the country.
Given those same justices’ actions in recent years,
their ruling has sown doubts and suspicions
that “they’re up to something.”
Elaine Freedman
On July 13, the Supreme Court of Justice’s Constitutional Bench announced four rulings of unconstitutionality on its Twitter account, demonstrating its capacity to influence national life. Two were related to the economic sphere, one to the political sphere and one to the social sphere, the latter referring to the General Amnesty Law for the Consolidation of Peace, more commonly referred to as the Amnesty Law.
Over the past 23 years, relatives of victims and human rights defense organizations have introduced five challenges to that law on grounds of unconstitutionality. The first ones were ruled “inadmissible” and the later ones simply shelved. Although independent experts from the United Nations declared that “this historic decision by the Court returns hope to the victims and trust in the legal system,” many of the victims themselves doubt the real motivation of the Constitutional Bench justices, who will now be responsible for issuing verdicts on war crimes and serious human rights violations.
The 1993 Amnesty Law
The Legislative Assembly passed the Amnesty Law on March 20, 1993, just five days after the release of the UN Truth Commission Report. Even though 200 relatives of victims of the repressive forces during the war turned up at the Assembly in an attempt to stop its approval, it passed with 47 votes from the rightwing National Coalition Party, Nationalist Republican Alliance (ARENA) and Authentic Christian Movement. The Christian Democratic Party’s legislators abstained while the Democratic Convergence walked out of the hall in protest at the law.
That new law invalidated the National Reconciliation Law, which had only been in force for two months and had established an amnesty “in favor of all people who have participated as direct perpetrators, intermediaries or accomplices in the commission of political crimes, related common crimes and common crimes committed by a number of people not fewer than 20 before January 1, 1992,” with the exception of the common crime of kidnapping in all cases.”
Article 6 of that earlier law excluded “those people who, according to the Truth Commission Report, have participated in serious acts of violence that occurred after January 1, 1980.” The General Amnesty Law, however, specified that “All of provisions that contradict this law are repealed, particularly article 6 and the last subsection of article 7 of the National Reconciliation Law.”
The Truth Commission Report
The Truth Commission Report was published on March 15, despite efforts of the Salvadoran government and its allies to remove the names of those implicated, leaving only acts and general definitions of responsibilities.
The Truth Commission received 22,000 accusations of serious acts of violence committed during the war and stated that “over 60% correspond to extrajudicial executions, over 25% to forced disappearances and over 20% include accusations of torture.” In total, 95% of the acts investigated had occurred in rural areas and the other 5% in urban ones. Armed Forces troops were accused in almost 60% of the cases and members of the security corps in approximately 25%. The finger was pointed at military bodyguards and members of the civil defense force in about 20% of the cases, while death squad members were accused in over 10%. The FMLN was said to have been responsible for approximately 5% of the cases.
The Report said “It is also necessary to point out that the government of the United States tolerated, apparently with little official attention, the actions of Salvadoran exiles living in Miami, particularly between 1979 and 1983. The Commission received testimonies that this group of exiles directly funded and indirectly helped direct certain death squads. It would be useful for other investigators with more resources and more time to clarify this tragic history to ensure that tolerance for people linked to acts of terror in other countries is never again repeated in the United States.” It was never revealed why the Report did not refer to the US military aid to advise the torturers, elite battalions and Army.
With respect to the patterns of violence, the Commission identified that most cases involving the repressive forces responded to a “political conception that had turned a political opponent into a subversive and an enemy. People who put forward ideas contrary to the official ones ran the risk of being eliminated as if they were armed enemies in the field of battle.” The Report mentioned the counterinsurgent theory of “taking the water from the fish.” The Commission “did not succeed in verifying the existence of general directives delivered by the FMLN leadership… for the cases of forced disappearance of people” and in very few cases established that such acts responded to orders or guidelines “from above.”
The Commission selected 32 cases considered to exemplify the patterns of violence by the contending parties: the Armed Forces of El Salvador, the death squads and the FMLN guerrilla forces.
“Unjust, partial, anti-ethical”
Envío’s correspondent at the time, Omar Serrano, pointed out “the discrepancy of certain ARENA party figures—including its secretary general and presidential candidate for 1994, Armando Calderón Sol—and the clear position adopted by the international community, particularly the highest UN authorities, closed the doors on the desire of the government and President Cristiani to hide the truth.”
ARENA therefore dedicated its efforts to delegitimizing the commissioners and their report. As Serrano explained, “El Diario de Hoy started a campaign to morally discredit two of the Commission’s members, former Colombian President Belisario Betancourt and former Venezuelan foreign minister Reinaldo Figueredo, accusing them of human rights violations and corruption in their respective countries and therefore lacking the moral position to judge others. Different professional associations in the country, such as the Lawyers’ Association, the Judges’ Association and the Supreme Court justices themselves—supported by long lists of signatures of its employees—emphatically rejected the Report.
After extensive pronouncements and communiques against the report, the military had buttressed its image enough to appear in public. As in the most terrible times of the repression, the Tandona, the group of officers responsible for many of the counterinsurgency operations, headed by René Emilio Ponce and Juan Orlando Zepeda, stated their official position on a television link-up. Among other adjectives, they described the report as “illegal, unjust, incomplete, partial and anti-ethical.”
Serrano underscored that “what is suspicious and even contradictory is that, while discrediting the Report’s veracity, all of these sectors called for the ‘immediate and unconditional’ approval of a general amnesty for those named in it.”
Crimes against humanity
In 2000, the same year the Inter-American Commission on Human Rights recommended that El Salvador repeal the Amnesty Law to adjust its legislation to the American Convention, the Constitutional Bench of the time established that the law was not applicable to serious human rights violations. The ruling was a partial response to international pressure to remove it entirely and comply with international treaties without causing too much ill will among the military members and former members and rightwing politicians opposed to repealing it. Despite attempting to be all things to all people, the ruling was enough to try cases such as the assassination of Monsignor Romero, the murder of the Jesuits in the Central American University, and the El Mozote, Sumpul and Calabozo massacres. In the following 16 years. however, no other cases were tried and none were reopened, despite efforts of survivors of the Mozote and San Francisco Angulo massacres.
“Justice could have been done in many cases despite the Amnesty Law, but what reigns in our country is impunity and a lack of will and courage on the part of the judges and prosecutors to bring to trial so many criminals who attacked the people in the war,” said Blanca García Panameño of the Committee of Mothers and Relatives of the Politically Detained, Disappeared and Murdered of El Salvador (COMADRES).
Two arguments for repealing the amnesty
The news spread like wildfire the night of July 13, 2016: the Amnesty Law had been repealed! In the reasons given for their decision, four of the five Constitutional Bench justices took up two basic arguments the victims had been making since 1993. Ricardo Iglesias, a lawyer and adviser to the FMLN’s legislative bench, explained that “one was that the Amnesty Law violated people’s right to justice, truth and reparation. The other was that the law violated international treaties, particularly the American Convention on Human Rights.”
The Court’s resolution stressed that “the acts that remain excluded from the amnesty following the end of the armed conflict are those cases contained in the Truth Commission Report, as well as others of equal or greater seriousness or significance.” The addition of the words “others of equal or greater seriousness or significance” is curious, given that the cases exemplified in the report were precisely those of greatest significance, unless they are referring to cases from the 1970s. The resolution also refers to the drawing up of a list of cases excluded from the amnesty, although it does not indicate who will do that, the criteria or why it will be needed as the Truth Commission already established 32 priority cases. It would appear to be disrespecting the Commission’s prioritization with a view to throwing other cases into the ring.
From the apparatus of power
The ruling also specially mentions “the organized apparatus of power” as a “common denominator in the sphere of crimes against humanity and war crimes constituting grave human rights violations.” It says “We do not find ourselves before the individual and isolated behavior of those who committed them,” but rather “they are the result of guidelines and orders coming from an organized apparatus of power where the hierarchy is clearly visible.”
This kind of argument has been important in international cases such as the one against Jorge Rafael Videla, the Argentine dictator during that country’s dirty war (1976-1983) who was sentenced to life imprisonment and stripped of his military rank for numerous crimes against humanity committed during the dictatorship he presided over. During his trial Videla stated that “I reiterate and fully assume my military responsibilities in all of the actions of the Argentine Army during the war against the subversives… The subordinates limited themselves to fulfilling my orders.”
Videla’s indirect responsibility was proven, as he stated in his declarations. It is not enough to “suspect” or “speculate” about an indirect responsibility; it needs to be proven. It is worth stressing that the Truth Commission classified the pattern of actions by El Salvador’s repressive forces as systematic and part of a “political conception.” It only identified certain cases this way in the FMLN’s case.
The “El Mozote” case is reopened
Relatives of the victims of the Mozote massacre were the first to take advantage of the resolution to reopen their case. They received support from the Dr. María Julia Hernández Legal Tutelage, the Center for Justice and International Law (CEJIL) and the El Mozote Human Rights Promotion Association. This massacre, which occurred on December 10, 11 and 12, 1981, is the largest one documented in Latin America.
“We have been struggling tirelessly for 35 years and we hope that once and for all the authorities fulfill their duty and allow us to know the truth about what happened and obtain justice for the atrocities we suffered,” said Dorila Márquez, president of the El Mozote Human Rights Promotion Association.
Many other cases will be very difficult to bring, including those of the 8,000 people who disappeared without a trace and with no witnesses. In the documents drawn up by the justices of peace during the war it was common to attribute the crime to “unknown subjects in civilian dress,” suggesting the involvement of death squads, while doing nothing to help reveal the truth.
Meanwhile, enough evidence has already been presented to the Inter-American Commission on Human Rights regarding the assassinations of Monsignor Romero and the Jesuits, the “Las Hojas” massacre and the kidnapping of the Serrano sisters to reach a judgment, as there has been in the “El Mozote” case.
Four rulings in the same packet
So why has the Constitutional Bench’s ruling generated distrust as well as expectation? The distrust is not so much related to the decision itself, but rather to the de-legitimization of the Constitutional Bench justices due to a series of decisions they have made that protect the rich at the expense of millions of Salvadoran families who view the government’s social programs as historic relief against the shortages they are suffering.
Had the ruling on the Amnesty Law been issued alone, it probably would have caused less speculation. However, it came in a packet of four resolutions announced in a single communique, with the other three proving to be more controversial than the amnesty repeal. And although legally speaking the other three were about different issues, the political reading was that this was a package whose aim was to economically weaken the government, affect the State’s legal security, and generate insecurity among the population.
The economic rulings
More than a year after receiving an appeal of unconstitutionality against the issuing of bonds valued at US$900 million to be used to strengthen the security, education and health budgets, and having ordered precautionary measures that froze them pending its sentence, the Constitutional Bench ruled the issuance unconstitutional because the 56 votes in favor were achieved during a second voting process in which an alternate legislator participated. David Morales, the Human Rights Defense Ombudsperson, had already warned that a decision declaring the bond issue unconstitutional would amount to a violation of the population’s human rights.
The Court also ruled in favor of a suit by the National Association of Private Enterprise (ANEP) against the 13% electricity hike the executive branch had decreed as a special contribution to maintain the subsidy for households that consume less than 99 kilowatts/hour and to invest in the production of hydroelectric, geothermal, wind and photovoltaic power. That contribution would only have affected the 30% of electricity bills at the highest end of the scale, not the million-plus families benefitting from the current subsidy.
These rulings came on top of another eight by the Constitutional Bench against public finances in recent years. In 2011 it suspended the 1% tax on the sales of companies that declare losses for more than two years and do not close down and in 2015 suspended the 1% tax on their assets. The list includes a precautionary measure issued in 2013 against the Special Law for the Establishment of the Fund to Care for Victims of Traffic Accidents, which prohibited charging a tax to cover the costs of providing the care but maintained the State’s obligation to pay for it; elimination of the US$0.04 tax for telephone calls from abroad in 2014; and the cancellation that same year of the pension funds interest rate, ordering the executive branch to pay a higher rate for using money from the Pension Fund Administrators to pay pensions still under the old system.
The Bench has also accepted suits against the Treasury Ministry presented by Enrique Borgo Bustamante, who was Vice President in Armando Calderón Sol’s government and TACA airline’s president before it merged with Avianca, and by former Constitutionality Bench magistrate René Hernández Valiente. It was no surprise that TACA was among the 12,519 tax-evading companies, but in a strange move the Bench questioned the last tax law modification, which empowered the Treasury to publish a list of tax evaders in order to strengthen transparency.
Although the Bench has yet to rule on this case, the latest news on one of its four justices, Belarmino Jaime, raises doubts about his motivation for voting in favor of big businesses, particularly those related to the telephone industry, and accepting suits against the publication of tax evaders. It turns out that Grupo Centroamericano de Telecomunicaciones S.A. DE C.V. is a family business in which Jaime holds 54.9% of the shares and his son holds 9%.
The sentence not issued
Another ruling in the July packet was political in nature as the Bench declared the Legislative Assembly’s alternate legislators unconstitutional. Although this has a smaller impact on people’s lives as the population has little interest in issues related to state institutionality, the sentence is a clear example of the Bench taking on functions that do not correspond to it and of arbitrary and unfounded action against another state body. In this case, nobody had actually presented an unconstitutionality suit on the issue so the justices acted as both plaintiffs and judges of their own suit.
Their argument for declaring the US$900 million in bonds unconstitutional was that an alternate legislator from the Great National Unity Alliance participated in their approval, stepping in for one of the same party’s legislators from another department. But the justices didn’t stop there. They also decided to review the issue of alternate legislators in general, ruling that they did not enjoy “democratic legitimacy” because their photos did not appear on the electoral ballots. They were simply elected from party slates in proportion to the number of legislators each party obtained, as established in the electoral law.
Both arguments are strange, firstly because almost all of the country’s laws are passed with the participation of alternate legislators, very often from different departments. However, the ruling was that the only vote that must be cancelled is the one approving the US$900 million in bonds, making it a rather suspicious exception. It is also strange that nobody actually requested a ruling on alternate legislators. If the justices ruled on this on their own rather than in response to an appeal presented by somebody, why did they reach their decision halfway through the term of the current alternates, thus annulling the citizens’ vote and violating the country’s legal security, rather than waiting for these alternates to conclude the period for which they were elected?
The judgment on alternates also created unease because the Constitution defines the Supreme Electoral Tribunal as the highest authority on electoral matters. Meanwhile, many wondered why many other laws passed with the votes of the current alternates were not also declared unconstitutional, including the election of four of the Bench’s five justices in July 2009, which involved the votes of 13 alternate legislators.
The justices’ credibility undermined
Other precedents have been undermining the credibility the Supreme Court’s Constitutional Bench justices enjoyed at the beginning of their term.
One constant feature of their actions has been their repeated nullifying of elections and of the naming of state officials. Prior to annulling the election of the alternate legislators, they dismissed Court of Accounts justices, an attorney general, a Supreme Electoral Tribunal magistrate (they declared the Tribunal’s president to be unconstitutional, but allowed him to conclude his term in office under non-legal arguments) and members of the National Judiciary Council. They also declared unconstitutional the naming of David Munguía Payés as minister of justice and public security and of Francisco Salinas as director of the National Civil Police; and they removed 10 Supreme Court justices, including two presidents: Ovidio Bonilla Flores and Salomón Padilla.
In the case of the two Supreme Court presidents, the Constitutional justices based their decisions on the fact they had party links, specifically with the FMLN. However, the report on ARENA campaign funders mentions the family of Justice Jaime, which is also concrete evidence of political linkage in his case.
The few suits against public officials not accepted by the Bench include those requesting cancellation of the election of the four justices who entered in 2009. In that case, the Bench used a different argument, declaring the unconstitutionality suits to be inadmissible because “any attempt aimed at disqualifying people who have been designated to form part of that Court would have damaging consequences for the constitutional rule of law.” This was not an argument they took into account when declaring the unconstitutional status of the other Supreme Court justices, including its two presidents. The actions and discourse of the Bench justices do not appear so far removed from the position of former Supreme Court president Mauricio Gutiérrez Castro, who solemnly announced that “Only God can remove me” when the Truth Commission Report was released.
The soft-coup concept
Almost all of the legal arguments of the Constitutional Bench’s rulings against public officials have coincided with the proposals and interests of the Salvadoran oligarchy and its political and business bodies: ARENA, ANEP and the Salvadoran Foundation for Economic and Social Development. Such was the case, for example, with judgments issued on state finances that exempt the richest from fiscal responsibility to the detriment of the national budget. The correspondence is quite clear between the Court’s rulings, ANEP’s proposals and ARENA’s legislative strategy, which is aimed at economically strangling the government.
Looking at what has happened since 2009 in Honduras, Paraguay and now Brazil, it’s undeniable that state bodies dominated by the Right are playing a lead role in the dismissal of democratically-elected progressive governments, reviving the neoliberal model. This particular moment in Latin America is characterized by the “soft coup,” a concept that emerged in 1983. It consists of a set of neither head-on nor violent conspiratorial techniques to destabilize a government and cause its downfall without it appearing to have been the result of the actions of another state branch.
It is for this reason, as well as the fact that the Salvadoran justice system has never been subjected to a serious study to clean it up, that so many are questioning the motives behind the Constitutional Bench’s ruling on the long-awaited Amnesty Law repeal.
The Bench’s justices and the directors and owners of the La Prensa Gráfica and El Diario de Hoy newspapers and the TCS, Canal 21, Canal 33 and TVO television channels held a closed-door meeting just days after the package of rulings was issued, presumably to explain their decision to these friendly media. The country’s community radios strongly criticized the meeting, to which the alternative media were not invited. “There’s little access to interviews with them for community-based media like ours,” said Norma Ramírez, press coordinator of the Association of Participatory Radio Stations and Programs of El Salvador. “These issues concern the country and if the idea is to explain the interpretation of the rulings, it should invite all the media.”
A smokescreen, an opportunity, or both?
Some say the repeal of the Amnesty Law was a smokescreen to undercut probable protests against the other three Bench rulings included in the packet. In his analysis of the repeal, Héctor Castillo viewed it as “an attempt to recover the Bench’s eroded credibility.”
García Panameño from COMADRES considers the repeal “an opportunity for El Salvador to clear up the crimes committed during the armed conflict and even before, but the Bench’s justices told us two years ago they already had the ruling to repeal the amnesty ready. Then they said it would have to wait until the electoral period was over. After that they promised us it would be issued before the August 2015 holidays. Another year passed before the ruling was handed down. I don’t know if this is due to some political interest of theirs. I hope not, but it raises doubts.”
Not only doubts but also fears
“On the one hand,” said Guadalupe Mejia, the “mother” of the Marianela García Villas Committee of Relatives of Victims of Human Rights Violations (CODEFAM), “I’m happy because we’ve been calling for this for a long time. But when I see it tied to other rulings that take money to work for our people away from our government, then I wonder whether perhaps they’re thinking of using it against those in the FMLN and our President Salvador Sánchez Cerén and that there isn’t going to be justice for those who killed and disappeared our relatives.”
What reasons does a social fighter like Guadalupe Mejía have to think the President could be brought to trial if he’s not even mentioned in the Truth Commission Report? First of all, she knows the justice system very well. And although that Report attributed just 5% of the war crimes and crimes against humanity to the guerrilla forces, the language of the Court’s resolution ignores this and implicitly establishes parity between the forces of repression and the guerrilla forces.
Everybody also knows the Constitutional Bench actions are biased as it has accepted suits and even established precautionary measures in less than three hours for some cases while others, such as the Free Trade Agreement, the auction mechanism for assigning radio and television frequencies, and the Amnesty Law have had to wait years for a ruling.
In June 2015, the Court reported 1,154 investigations pending against judges, with 343 cases ready to be sentenced. After six months, however, only 9 dismissals and 10 suspensions were reported. The different types of suits related to corruption include charges that a judge favored the accused to the detriment of the victim, that bribery was involved, that there was influence peddling and that decisions were handed down knowing they were against the law. It’s reasonable to think political criteria are prevailing over legal ones in the prioritizing of cases.
“They may be up to something”
Guadalupe Mejía intelligently places her arguments in the geopolitical soft-coup context when expressing her concern that “they may be up to something.” As she herself says, the actions of the Constitutional Bench aren’t isolated from other actions being implemented by ARENA’s legislative bench, the interests of big businesses in ANEP, their Allies for Democracy, the rightwing media companies and the German and US embassies.
They are all jointly working on delegitimizing and financial strangling activites that could be laying the groundwork for the illegitimate dismissal of the current President.
It would be a bad thing…
“It would be a bad thing if we didn’t use the ruling after it had been requested by human rights organizations,” said Wilfredo Moran of the María Julia Hernández Legal Tutelage. His words echo the position of the victims, who long for justice. Most of them aren’t seeking a criminal trial; they just want the truth. They want to know what happened to their relatives and where their remains are so they can give them a decent burial. And they want the perpetrators to beg their forgiveness.
But it would also be a bad thing if we interpreted the Constitutional Bench’s decision without taking the national and international context into account. It is precisely this kind of ingenuousness that made Paraguayan President Fernando Lugo easy prey of rightwing forces that wanted to recover lost ground in Latin America.
The victims have the right to celebrate their victory, as repeal of that terrible law has been a pending demand for almost a quarter of a century. But they should take care not to be re-victimized by those only seeking to guarantee the privileges of El Salvador richest people, just as happened during the war years.
Elaine Freedman is a grassroots educator and envío correspondent in El Salvador.
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