Armed Conflicts, Crime & Justice, Headlines, Human Rights, Latin America & the Caribbean

RIGHTS-EL SALVADOR: Rumours of Amnesty Repeal Cause Panic

Edgardo Ayala

SAN SALVADOR, Jul 11 2011 (IPS) - The mere rumour that El Salvador’s Supreme Court (CSJ) might be thinking of repealing the amnesty law was enough to trigger an institutional crisis in this country, showing how fragile its recovery is from the wounds left by the 1980-1992 civil war.

No one knows who started the false whispers in the corridors of Congress – the CSJ has stated it has no plans for even considering such an action – but it unleashed a full-blown political crisis.

Lawmakers in Congress and judges in the CSJ constitutional chamber have been at daggers drawn since Jun. 2, when Congress approved Decree 743 in a move to block the abolition of controversial laws like the amnesty law and others that have benefited political parties for decades.

The amnesty law was passed by Congress in 1993 to let the perpetrators of human rights crimes committed during the armed conflict off the hook.

Ever since its approval it has been harshly criticised by human rights defenders at home and abroad, while the powerful elites, the military and the right have stubbornly refused even to consider its repeal.

Under the new Decree 743, CSJ constitutional chamber resolutions must be approved unanimously by its five judges, instead of by a majority, as previously. Generally, four out of the five judges have pushed through resolutions regarded as historic, and free of overarching political or economic influence.

The decree makes it virtually impossible for the constitutional chamber to make any controversial rulings, such as declaring particular laws unconstitutional.

For instance, in August 2010 the CSJ declared unconstitutional the transfer of funds from different government ministries to the presidency, a “secret appropriation” of funds the sitting president could use at discretion.

One month later it also declared unconstitutional the protection enjoyed by media owners and editors, who could get away with publishing libellous or defamatory statements that violated citizens’ rights guaranteed under article 2 of the constitution.

Also in 2010, the CSJ made it possible for independent candidates to run for election as mayors or lawmakers, eliminated the “closed list” system of voting under which candidates from only one party could be selected, and proposed an “open list” system in which photographs of candidates would appear on the ballot papers, not just the party logo, and voters would be able to choose candidates from more than one party.

Lawmakers were upset by these changes, and tensions between the CSJ judges and Congress broke out.

Again by virtue of a CSJ resolution, on Jul. 1 the electoral court, TSE, dropped two long-standing political parties – the National Conciliation Party and the Christian Democratic Party – from its register, because in the 2004 elections they failed to take the minimum percentage of the vote required by the electoral code.

However, the parties intend to re-register with the TSE under new names.

“For the first time, we are seeing an independent constitutional chamber that is not tied to the political landscape, and this independence is exactly what political parties are afraid of,” said analyst Alfredo Mena Lagos.

After arduous political negotiations, in July 2009 Congress appointed new judges for the CSJ constitutional chamber, and from the outset their track records indicated that they would not be subservient towards the country’s economic and political elites, as in the past.

The votes of rightwing Nationalist Republican Alliance (ARENA) lawmakers were key for the approval of Decree 743, following instructions from their leader, former president Alfredo Cristiani (1989-1994), who has personal reasons for blocking any attempt to overturn the amnesty law.

Cristiani could be among 20 people accused of killing six Jesuit priests, their housekeeper and her daughter in November 1989, at the height of a ferocious military offensive against leftwing guerrillas of the Farabundo Martí National Liberation Front (FMLN).

As president, Cristiani was also commander-in-chief of the armed forces, and there are reports that he participated in a meeting in San Salvador where the top military brass planned the Jesuits’ murder.

Eloy Velásquez, an investigating judge at Spain’s National Court, ordered the arrest of 20 members of the armed forces May 29, and Interpol was to have executed the arrest warrants through the Salvadoran police. But the arrests have not been made due to controversy as to whether the Spanish justice system has jurisdiction in the case.

Conservatives regard this as interference from Spain, and argue that the accused are protected by the amnesty law.

The case was presented in Madrid in 2008 by the Centre for Justice and Accountability (CJA), a California-based NGO working to bring human rights abusers to justice.

Cristiani himself acknowledged that fears the amnesty law might be abolished were the motive behind his party voting for Decree 743.

“We had information that the amnesty law might be declared unconstitutional, and in the circumstances, we consider ARENA’s votes were well cast,” he said.

CJA prosecution lawyer Almudena Bernabéu told local media that Cristiani is still of interest to the case “as an accessory.” “He isn’t being prosecuted, but he has been named in the lawsuit,” she said.

When the former president heard that the CSJ was not actually considering repealing the law, he backed down and his party has asked for Decree 743 to be overturned, but the FMLN, which has a parliamentary majority, opposes this move, as CSJ constitutional chamber resolutions could also be detrimental to it.

The FMLN became a political party after the 1992 peace agreement and is now governing the country for the first time, led by President Mauricio Funes, who took office in June 2009.

In October 2000, the CSJ heard a constitutional complaint against the amnesty law, and ruled that it was not unconstitutional, although the courts were given the freedom to try cases of crimes against humanity.

In any case, abolition of the law cannot be enforced retroactively. “In fact, overturning the law would not cancel its effects. That is why we are invoking universal law, since certain human rights violations are not subject to amnesties or statutes of limitations,” Loida Robles, a lawyer for the Research Foundation for the Application of Law (FESPAD), told IPS.

President Funes had the legal power to veto the decree, but in the event he signed it into law with unusual speed, in less than 24 hours. Analysts have interpreted this as a counterblow against the CSJ judges who ruled against “secret appropriations”.

Since he took office Funes made it clear that he would not put pressure on Congress to repeal the amnesty loaw, because it would re-open old wounds from the civil war, he said.

“We condemn what the president did. We hoped he would veto the decree,” said Robles.

Miguel Montenegro, the head of the El Salvador Human Rights Commission, told IPS that the amnesty law has done nothing but ensure impunity for crimes, and stressed that in 2000 the Inter-American Commission on Human Rights ruled the Salvadoran state must strike down the law.

“The amnesty law should never have existed, because it was planned, prepared and approved by a Congress that was interested in protecting human rights abusers,” Montenegro said.