Tuesday 12 August
2008, San José, Costa Rica
EL
SALVADOR:
Hard-Line Policies Vs
Rule of Law
By Raúl Gutiérrez
SAN SALVADOR (IPS) -
Increasingly tough "zero
tolerance" laws have
been the government’s
response to the growing
wave of crime in El
Salvador, one of the
most violent countries
in the world. But judges
and experts say the
strategy is undermining
the state of law.
More than 300 reforms of
criminal law have been
introduced in the past
few years. But analysts
see these changes as a
setback with regard to
the advances achieved in
the justice system after
the 1992 signing of a
peace deal that put an
end to a 12-year civil
war.
The peace agreement
signed by the rightwing
government of Alfredo
Cristiani (1989-1994)
and the leftist
Farabundo Marti National
Liberation Front (FMLN)
guerrillas laid out
guidelines for the
demilitarisation and
democratisation of
Salvadoran society, for
guaranteeing respect for
human rights and basic
freedoms, and for the
establishment of a state
of law.
But the reforms adopted
over the last few years
"have tended to curb the
protections enjoyed by
citizens against the
power of the state,"
said Supreme Court
lawyer Jaime Martínez.
The main setbacks, he
said, involve the lack
of "guarantees of due
process" when a person
is arrested.
Prior to the recent
reforms of the country’s
penal legislation --
which Martínez labels a
"counter-reform" --
anyone who was arrested
had to be shown a
warrant. But today, the
National Civil Police
(PNC) "have no
obligation to show a
warrant," said the
lawyer, who in 2005
published the book
"Democratic Limits on
the Power of the Penal
System; Reforms of
Public Security and
Penal Justice".
In essence, the
"counter-reform is
authoritarian. It
undermines human rights
and is aimed at scaling
back guarantees that
were seen as excessive,"
Martínez told IPS. "It
stiffens penalties and
grants greater powers to
the PNC and prosecutors,
increasing their control
over the population."
The 1992 peace accord
ushered in
constitutional
amendments that
overhauled the justice
system, with the aim of
rooting out impunity and
corruption and
establishing the rule of
law.
Congress approved the
amendments, which
included modifications
of the penal code and
criminal justice
procedures "that led to
the transformation from
an inquisitorial system
to an adversarial
system," leaving behind
the legacy of decades of
military dictatorships,
said Martínez.
But before the reforms
were completely
implemented, the
government of president
Armando Calderón
(1994-1999) began to
introduce modifications.
And his successors (all
of whom have belonged to
the rightwing
Nationalist Republican
Alliance or ARENA, which
has governed El Salvador
since 1989) have
followed the same
formula. Today, Congress
is studying further
changes to the penal
code.
The governments of
Francisco Flores
(1999-2004) and current
President Antonio Saca
both called for laws
that would allow the PNC
and the public
prosecutors’ office to
clamp down more
effectively on the
growing wave of crime,
arguing that the laws as
they stood benefited
criminals more than
society.
But groups of judges
have criticised the
changes, saying they
affect the judiciary’s
ability to be
independent and
impartial. They also
argue that the new
modifications under
study in Congress
deprive them of their
constitutional authority
to judge cases, by
handing that power over
in practice to the
public prosecutors’
office.
Judge Sidney Blanco told
IPS that legislators
have introduced so many
changes that "it is hard
to identify the original
draft law."
The reforms "have been
reckless and prompted by
brash reactions" to the
growing violence and the
public pressure
resulting from the
resultant media
coverage, rather than
being based on
"sociological and
criminological studies,"
he said.
As an illustration,
Blanco cited a Supreme
Court ruling handed down
in April that upheld a
2001 parliamentary
decision to increase the
maximum sentence from 35
to 75 years.
"There is no scientific
support for that. There
is a belief that by
stiffening sentences,
people will stop
committing crimes. But
that’s a mistake:
criminals are more
afraid of an effective
investigation and trial
than of the length of
the sentences that
figure in the penal
code," said the judge.
The "mano dura" or
hard-line policies
against crime are also
designed to conceal the
"inefficiency" of the
PNC and the public
prosecutors’ office when
it comes to
investigating crimes in
this impoverished
Central American nation
known for its high crime
rates and widespread
impunity, said Blanco.
Official figures show
that 40 percent of all
crimes committed in this
country last year
occurred in Greater San
Salvador.
According to the latest
census, whose results
were released in May, El
Salvador has a murder
rate of 64 per 100,000
population, one of the
highest in the world.
But among young people,
the rate could be as
high as 149 per 100,000,
say experts.
The official statistics
show the ineffectiveness
of the "mano dura"
policies applied since
2003. Between 2003 and
2007, more than 16,000
murders were committed
in El Salvador, which
has a population of 5.7
million.
Eighty percent of the
murders were committed
with firearms. The
authorities estimate
that there are 450,000
guns in private hands in
this country, although
only 170,000 are legally
registered.
Youth gangs, known as "maras"
in Central America,
account for a large part
of the violence, but the
phenomenon is much more
complex than that.
The main gangs in El
Salvador are Mara
Salvatrucha and Pandilla
18 (18th Street gang),
which originated in the
United States in the
1980s, when nearly one
million Salvadorans,
fleeing the armed
conflict back home,
settled in impoverished
neighbourhoods in Los
Angeles and other cities
where gang violence was
rife.
After the armed
conflict, many mara
members were deported
from the United States.
Back in El Salvador they
founded local branches
of the gangs, which over
the last decade have
expanded throughout
Central America and
southern Mexico.
In the earlier years,
the gangs were made up
exclusively of young
people. But now the
maras are ruled over by
leaders in their 30s and
40s, although they are
also recruiting younger
and younger members.
Nor have the zero
tolerance laws made a
dent in the impunity
enjoyed by criminals in
El Salvador, as revealed
by the study "The
Functioning of the Penal
System: Handling of
Homicides 2007",
sponsored by the United
Nations Development
Programme (UNDP).
The report, by Blanco
and jurist Francisco
Díaz, found that only 14
of every 100 murders
committed in 2005 made
it to court, and that
convictions were handed
down in only four out of
100 cases.
The U.S. State
Department’s annual
reports regularly state
that El Salvador’s
judiciary is inefficient
and hampered by
widespread corruption.
Blanco admits that many
of the criticisms of the
corruption and
inefficiency of the
justice system "are
valid and well-founded,"
because the Supreme
Court lacks oversight
and disciplinary
mechanisms. But he said
the criticisms should
not be generalised.
The justice system "is
not very convinced about
how far the concept of
independence extends,"
and in many cases,
"economic influences and
political complacencies
are decisive,"
especially in the sphere
of the Supreme Court,
said Blanco.
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