April 26, 2000
The political culture of democracy
Politics The conflicts surrounding the Elián González situation
Comment Law and society
Document The UCA impugns the Attorney General of the Republic's
decision on the Jesuit Case
THE POLITICAL CULTURE OF DEMOCRACY
As everyone knows, a democratic regime does not rest upon the irrevocable power of the person in charge, nor in the power of a leader or civilian-military coalition, nor on the absolute power of an institution. By the same token, a democratic regime requires the participation of the citizenry in discussion and in public criticism. This is to say that democracy presupposes the presence of the citizenry in public affairs: this is where social and political problems are examined, evaluated and criticized and where reasonable alternatives are proposed for solution —this is to say, where alternatives acceptable to the majority but which take into consideration the interests of the minority are proposed.
What is it that animates citizens to participate in the discussion and solution of public affairs? What is it that permits them to accept democratic mechanisms as the vehicle for resolving their problems? From the very beginning, it is a conjunct of social values, norms and practices which are favorable to democracy as a form of life. These values, norms and practices taken together constitute what is known as politically democratic culture. What are the basic features of democratic culture?
In the first place, confidence in the institutions, with the understanding that, on the one hand, that individual and group discretion are limited; and, on the other, that their functions are implemented by those who have the obligation to respond to society for their successes and errors. If citizens do not confide in the institutions either because they are weak or because they failed to respond to the demands of the citizenry, what is predictable is that social practice tends not only towards apathy but also towards illegality.
In second place, a positive evaluation of public criticism, which rests upon the conviction that human beings tend to make mistakes and errors —above all those who hold public office—, which makes permanent monitoring of their work and the critical examination of their decisions imperious necessities. There where decisions by state authorities are not submitted to public scrutiny and monitoring by society —where that scrutiny and vigilance is not tolerated—, it is probable that arrogance and corruption will prolerate. To evaluate public criticism positively means to encourage it, give voice and vote to the citizenry in daily attitudes and behavior.
In third place, the willingness to participate in public affairs under the supposition that the good functioning of society is something which is the responsibility of each and every one of the citizens. Nothing is more opposed to the strengthening of democracy than the withdrawal —which is now more and more generalized— into private life, principally if it means renouncing involvement in discussion and the resolution of problems which affect society as a whole. Democracy requires a strong dosage of solidarity, but this is hard to come by without citizens who are willing to risk part of their comfort and tranquillity in the public sphere.
A fourth point is that, with respect to laws one must recognize that laws are the principal guarantee against arrogance and arbitrary actions and decisions. Certainly, laws are not everything, nor do they, in and of themselves, guarantee human happiness. Even more, the evidence concerning systematic violations of laws is astounding not only by those with power, but also by everyday citizens. Nevertheless, there is sufficient evidence for holding to the premise that where laws are respected not only is there a higher quality of coexistence on a social level, but there are criteria for evaluating when and where abuses against human dignity are being committed. To convince oneself that these criteria are important in and of themselves is not easy, given that, on the contrary, what results is arbitrary action by everyone.
A fifth point is the rejection of state and private violence. This attitude not only favors the peaceful resolution of conflicts but also is a safeguard against autocratic pretentions by those who reach the point of controlling a part of political power. In very violent societies —which is the case of Salvadoran society— it is clear that what obtains is the opposite value: that of accepting state and private violence. To eradicate this way of seeing things is a task of first importance at this point in time. Perhaps when an attitude of rejection of violence begins to predominate we will be at the threshold of radical change in the values of Salvadorans. Meanwhile, the law of the strongest —in public transport vans, bus drivers, aggressive neighbors, arrogant parents— will continue to make its implacable logic prevail.
A sixth point concerns tolerance, which presupposes the acceptance of the ideas—artistic, ideological, religious and sexual preferences—of others not as a concession but as acceptance of the fact that one's own options and values are relative. In a society such as Salvadoran society, which is markedly conservative, the struggle for tolerance is unavoidable. To accept those who think and have tastes distinctive from our own is not easy because one is more at home with those with whom one has affinities. Nevertheless, it is first and foremost to the former point that one must listen and understand, not in order to change them to the ruling “normality”, but in order to comprehend ones own state of not being entirely normal.
A seventh point is the spirit of moderation which leads us to avoid—and even fear —extreme positions at the ideological and political level. Nothing is more adverse to democratic living and working together than fanaticisms —this is to say, blind and stubborn positions opposed to rational discussion. Nothing is more contrary to democratic living together than personal eruptions which give way to passion and insanity. Certainly, every human being has his or her own demons, which can erupt in this most unexpected way. Democracy demands of each citizen the control of his or her demons and, above all and before all else in public life.
An eighth point is the acceptance of freedom, even with its risks and uncertainties, over and above all despotism, despite the security it offers. Democracy is a risk; and this because it is the basis of freedom, which, by definition, is uncertain: the realm of human choice, the realm of equivocations. But also the realm of the most human successes of human beings. To accept freedom is to accept its risks; is to accept, as well as the possibilities which open for the full realization of human beings.
The ninth point concerns convincing citizens to be, as individuals, subject to inalienable rights, that is to say, the rights which no one —leader, party or authority— can violate. There is no doubt that in a democracy, the authorities must respect these rights; however, what is most important is that the citizenry be convinced that these same rights cannot be violated by anyone. This confidence is the motor force which will move them for their defense, conservation and expansion. To the contrary, they will continue depositing in entities outside of themselves —such as NGOs or state institutions, something which individually and in group— and above any entity it falls to them to defend, conserve and expand.
Lastly, the lack of confidence or distrust in any redeeming social or political proposal which Salvadorans will certainly feel —individual leaders or parties—, supported in the redemptive crusade, can end up by submitting the fundamental rights of the citizens to their willpower. A mature citizen, in order to live in a democracy, cannot feel fear for saviors and redeemers such as Alberto Fujimori, Ernesto Guevara, Fidel Castro, Hugo Chávez, Adolf Hitler or Joseph Stalin. This fear is nourished not only by historical evidence but by common sense which says that human beings tend to make mistakes and the more power they have —and redeemers and saviors aspire to have all of the power— their errors affect the life of more people.
In summary, as Robert Dahl indicates, “the perspectives of a stable democracy in a country are seen to be given potential if their citizens and their leaders defend their ideas, values and democratic practices forcefully. The most reliable support is produced when these values and predisposition are rooted in the culture of a country and are transmitted, in great measure, from one generation to another. In other words, if the country possesses a democratic political culture”. Should this not be the case, the perspective for democracy will be seriously threatened. How sure are these ideas, values and democratic practices in El Salvador? Perhaps in the response to this question can be found one of the escapes from the blind alley in which the process of democratization in the country is to be found.
THE CONFLICTS SURROUNDING THE ELIÁN GONZÁLEZ SITUATION
Since he was rescued in the high seas after the shipwreck of a small boat in which his mother and a group of Cubans were journeying to seek the American dream, Elián González has been the center of public international debate. Throughout the five months since his sad rescue, as much Havana as Miami has been the scene of street demonstrations. In Cuba there is a call for returning the child in accordance with the principle of family reunification. In Miami, Cuban exiles consider Elián to be theirs, the symbol of the struggle against Fidel Castro. For this reason they tried to impede any effort by the Immigration and Naturalization Service (INS) to reunify the boy with his father. Given the refusal of the anti-Castro groups to return the boy to his father, even when he was physically in the national territory of the United States, Janet Reno, the Attorney General of the U.S., ordered a surprise assault on the home of the child's paternal uncle in Little Havana in order to “force Lázaro González to respect the law”. The Attorney General justified her decision by arguing the intransigence of the Miami family in not obeying the decision of the federal government by means of dilatory practices and political maneuvering.
The reactions of both sides with respect to the decision of Janet Reno have been different. In Miami they call for her head. The Cuban exiles have organized violent strikes and demonstrations and have tacitly supported actions of civil disobedience in order to protest what they call the intervention of Fidel Castro and the “crucifixion of Elián” by the U.S. functionary. Some legislators in Southern Florida call for an investigation of the actions of the Clinton Administration in order to assign responsibilities in what they call an abuse of power by the government. The Republicans as well as the Democrats forget the right of Elián to live with his father, the person responsible for him after the death of his mother, in order to move their own political agenda forward.
On the other hand, in Cuba, in a calm ambience, the people greet the decision of Reno positively, as they consider it to have been just and healthy for the child whose image was being used as a political shield to the neglect of his mental health. Castro declared, on the day of the assault on the home of Lázaro González a “truce” for a day with the U.S., in recognition of the work of Janet Reno. It is said that the case of Elián has united Havana with Washington against the anti-Castro Cubans in Miami.
What is surprising in both cases are the (hypocritical?) declarations that the final objective is the well-being of Elián. For the government of Havana, the return of the little boat boy is a question of honor. Taking as their starting point they call it his “kidnapping by the Mafia of Miami” and have organized huge marches which, in the opinion of many, appear to be demonstrations of support for a regime in serious trouble for its international policy, which has been repeatedly condemned for violating human rights.
The anti-Castro groups unfurl the banner of freedom, human rights and democracy. For them, to reunite Elián with his father who does not wish to leave Cuba is to turn the child over to an evil communist who is manipulated and pressured by the government of Castro. In defending the “principles” mentioned above, they consider any method valid, including violating the rights of the child. They obstructed any efforts to bring him into contact with his father; they deny his right to privacy. And what is more serious, they submit him to a forced reeducation which responds to the ideology and traumatic experience of the exiles of the Castro regime, and experience which for some is legitimate, but which does not have to be forced upon the whole world, much less upon a child of six years of age.
In the opinion of noted psychologists and psychiatrists it is possible that the behavior of the Miami relatives and then the violent eruption into the house of Lázaro González in Little Havana, have provoked irreparable psychological damage to the child. Why did this child have to undergo such a sequence of events? Both sides will surely find the excuse which is most convenient for them. The basic reason, nevertheless, will continue to be that which upholds the economic or political interests of both sides of the dispute who have ignored or forgotten the rights of Elián and his father, the true victims of this tragedy.
On the other hand, in their struggle to maintain the custody of Elián, the anti-Castro groups of Miami not only demonstrate that they can violate the same “principles” which they allege to espouse, which could also affect the Latino communities in U.S. society. One ought seriously to reflect upon the possible repercussions of their attitudes and acts upon the difficult living and working situation many times marked by anti-immigrant xenophobia which obtains between the population of Latinos and the population at large in the U.S.
Many persons see as positive the fact that the Latinos have been inclined to favor either the Democrats or Republicans, in the sense that they are one more important vote for the political aspirations of the candidates. In fact, according to recent statistical studies, in Southern Florida, Latinos will become, in the near future, a major social group and, at the national level, will soon be the most numerous minority. Moved by the search for votes, the presidential candidates Bush and Gore have declared themselves against the return of Elián to Cuba and against the armed intervention in order to assure compliance with the federal order to reunite the child with his father.
On the other hand, what consequences could the fact that the anti-Castro groups have not wanted to obey the laws and have held violent demonstrations have for Latinos? The impression of the episodes related to the case of Elián is that the same laws do not apply in Miami as in the rest of the U.S. Latino authorities in this area have declared themselves not to be willing to collaborate with the federal government in case they try to remove the child from his adoptive home by force. It does not matter that his paternal great uncle violated the law or disobeyed a federal order. What are important are the decisions of the exile groups. As they are against the reunification of Elián with his father, they will do things in their own way. In this sense, it could be that the Miami exile groups affect the situation of all Latinos in the U.S. Later, racist, xenophobic positions can use these arguments to justify anti-immigrant crusades. It is not outlandish to reflect on this in this way; authorities such as Wilson have already been seen to use less strong arguments in order to deny social benefits essentially to Latino immigrants. Now, part of the ridiculous and unfounded arguments which the illegal Latinos (although some say that those who are legal as well) are responsible for the economic problems, they make the argument that they are violent and disrespectful of the laws of the country which has given them shelter.
In the end, the resentment of the Cubans from Miami with the Castro government and the conflict of this government with the government of the United States have muddied a case which, outside of this scenario, would be easy to resolve. Because, effectively, the only thing which can legitimate the separation between Elián and his father is if it were to be proven that the father could not guarantee the security and well-being of the child. For all the rest, the pride of the Cuban authorities —their eternal criticism of Northamerican imperialism—, the resentment of the Cubans in exile and Northamerican arrogance, should matter little at the moment of discussing what is best for the little boy from Cuba.
LAW AND SOCIETY
In these modern times, with the dream of creating a mechanism capable of guaranteeing social peace, full confidence is deposited in human rationality. On the question of law, this has come to be seen as a product of human will. It is the moment in which the phenomenon of positivism of law is spoken of, the consequences of which are diverse, as is the importance which written law has acquired. Among these, we are interested in the ideas of certainty in law and in juridical security which arose in this epoch. The idea of certainty includes having knowledge; security, the expectation something. The topic of certainty and juridical security carries with it the relationship between the legal world and the social world because juridical certainty means to know the rights, what is proscribed in state norms and security, and how these norms are being applied and how they enter into play in social relations.
What is to be understood by the guarantee of rights? What specific posture or premise is thereby recognized by the state? It is what the so-called defenders of human rights and what has come out of various social movements such as feminism and the struggles against racial stereotypes. These are debates which took place with the positivism and support of law during the modern period.
The promises of modernity and law
Law was not always seen in the same perspective as it is today. During the modern period, using the positivist evaluation of law, the aim was to remove any and all manifestations of what did not concern human beings from the juridical sphere as well as to defend the conception of natural law. What was sought was the construction of a society where conflicts would be resolved by means of a system of pre-established norms.
Among the promises of the modern period, together with the law of the state and positivism, should be highlighted, first of all, taking justice into one's own hands in order to resolve any and all social conflicts. Secondly, that law should not be confounded with morality, politics nor with economy, which is to say, the criteria for the resolution of social conflicts are established by the judicial system and for this reason, decisions will be the same for everyone, independent of the political prestige, moral criteria and/or economic power of the person who commits the illicit act. So it is that the law of the state is seen as the road to democracy because all have the same rights and must be judged according to these rights. In third place, with the law of the state everyone knows his or her rights and for this reason can be sure of them, which leads to social security because socially admissible behavior is pre-established, making possible a calculation of the pre-established certainty of how people must behave and act in public spaces, that is to say, we shall have clear expectations of social behavior.
In order to obtain compliance with these promises, the professionalization of persons who administer justice in the judicial sphere is a clear necessity. As it is the case that modern law is law made positive or subject to reason —given that human will, but not as the result of the action of any will whatever, but only that which comes from a competent authority— the state monopolizes the creation of the law, taking the norms of the state as its principal source.
Diverse theories have been devised in order to make it requisite to hold to the modern vision of law by means of dogma or norms, such as certainty and juridical security, which demand the undeniability of the premise of the obligatory nature of decision-making by judicial tribunals. Nevertheless, it happens that this, as in the case of other theoretical creations of the modern period, was never successful, as is the case of the theory of the impartiality of the judge, the theory of political representativity and the distinction between the public and private spheres. At any rate, it is true that other theories such as the pyramid-shaped structure of law, the theory of judicial norms and judicial ordering, have been successful and important for western concepts of the law.
Law and society
Is it the case that positivist conceptions of law provoked a distancing or separation between the judicial and social world? Jurists live in an imaginary world, the theoretical perspective of which leads to the supposition that all problems have a legal solution, even in the so-called under-developed countries where situations in which the context in which one lives and works is unchanging poverty and misery. For dogmatic legal thinkers and practitioners such a context is not amenable to be considered a legal problem, rather, it is thought to be a political or social problem and so wash their hands of any responsibility to reflect upon the theme. The distancing and separation between these worlds takes place at several degrees of abstraction: the first is that of the norms or laws of the state; the second level, with its dogmatic emphases, consists in theoretical abstraction.
This imaginary judicial realm led many to the belief that humanity now had at its disposal the perfect mechanism for dealing with the construct of living and working together in the social sphere. But the process of the formation of ideal human beings who might be able to live within the guidelines of the judicial structure of the state was left out of the picture. This, then, leads us to the debate over the efficiency of the law. Could it be the case that the lack of legal efficiency lies in the lack of the human beings maturity to act within the parameters and guidelines of the judicial system or does the problem lie in manipulation and undue use of the judicial system? Why is it that people almost never consider the norms of the state as a model for behavior? What leads us not to base our behavior and actions on the norms, rules or laws of the state? One possible response is the ridiculous nature of the process through which the law governing the state is currently passing.
When daily coexistence in a society is at the opposite pole to what is prescribed by judicial norms or when having recourse to judicial means and power makes no sense, or is a senseless process, society tends to develop other mechanisms for the resolution of its conflicts. Today, the very persons who have had a professional legal education are those who tend most to help along the process of deformation of the law of the state.
Another question is that much violence has occurred in the name of judicial security, for example, in the totalitarian and dictatorial methods of resolving social conflicts when the application and change of content of the basic norms of the state come to serve as instruments of power. This act does not mean that the law necessarily becomes an instrument of domination. Rather, it made clear that it is insufficient to establish laws to guarantee rights. And it is even possible to believe naively that people such as Hitler are the product of the positivization of the law. It is all to the contrary. Hitler's discourse was not based on a judicial ordering of the state; it was, however, based on preconceived notions of the purity of the Aryan race. Another piece of naivete which must be sidestepped is that of accusing Kelsen of being the defender or producer of totalitarianism. This author believed that by means of the law of the state we could more closely approximate democracy than when the law was not written, as in the case of the Middle Ages.
All of this leads to the conclusion that the judicial social phenomena are not exhausted in the creation of the law or in the entering into effect of a judicial norm. Moreover, the judicial decision is not the only product of studies of the norms, but that other facts influence decision-making. Understanding, then, that law is a product of culture, one must focus on the role of judicial actors in the production, functioning and legitimacy of law. The text of the norms does not go beyond consisting in one more, but not the only, source of information. In other words, there is no way to guarantee that the prejudices of the judge will not influence his or her decision in the same way in which the judge cannot be obliged to read a legal petition with all due attention, especially if he or she does not wish to do so.
Certainty and security
Today, the promises of the modern period do not come to much more than being projects which are not complied with —principally after the fall of the Welfare State— neither does it appear that they will some day come to exist. Even so, one cannot omit the consideration of the importance of the theoretical apparatus developed as a product of legal dogma in the western world today. Given the evident lack of sufficiency of laws to govern the state in order to resolve, in and of themselves, all social problems, dogmatic discourse is still the most efficient for achieving legitimacy, for transmitting the feeling of certainty and, consequently, security, to society, even though it may be at the level of discourse alone. This is to say that the ideas promulgated by the dogmatic conception of the law, when they do not go beyond having recourse to argumentation, are efficient means of maintaining legitimacy and social control in society today. At least, up to this point in time. One proof of this is that, when the crisis of law or the crisis of the state is spoken of, the proposed solution is to reform laws and change the state apparatus. There is no proposal for changing the structure of functioning of the law nor is there for the state, such as took place with the transition from the Middle Ages to the modern period.
From a dogmatic point of view, the probable responses to the problem of violence in today's society might be: first of all, that it is not dealt with as a legal problem, but rather as a political or economic problem. Secondly, that it is thought to be a task for the legal structure of each country to develop a competent dogma in order to make its law efficient. Thirdly, law has nothing to do with corruption. On the contrary, corruption is an illicit act, anti-legal, inadmissible from the judicial point of view, but as law is a product of culture, it reflects a people's way of being. Seeing society today as a society at risk of probability, of uncertainty, of complexity and insecurity, the frustration will consist in not accepting or recognizing that there is no formula, means or mechanism to guarantee social peace. The belief that state law is a capable and sufficient instrument for guaranteeing peaceful coexistence turns out to be a very naive conception, given that the separation between law and politics (or economy) never takes place in the empirical social world.
As the fruit of the debates between Oñate and Carnellutti on the topic of the certainty of law, the idea emerged that social security does not consist in the act of establishing criteria for the solution of social conflicts, but in how the judicial institutions are functioning. Rather, security as a guarantee against insecurity and the unforeseeable nature of social acts is not in the prescription of the judicial norms of the state, but in the degree of efficiency of that security, in its capacity to offer responses and resolutions to social conflicts. So it is, then, that judicial certainty does not mean being able to foresee the content of the decision, but in the surety that there will be a decision. As Niklas Luhmann states, “the legitimating function of the procedure does not lie in substituting a deception for recognition, but in immunizing the final decision against inevitable deceptions”.
Finally, the difficulty lies in the fact that , as a result of the imaginary nature of what is proposed by the ideologies of the modern period, the vision the world of the jurists is distanced form the social sphere and the attempts arising from the social realm to approximate the legal realm are denied by the argument that this approximation will serve as the opening or starting point of judgement and, consequently of corruption, destroying the possibility for guaranteeing rights. It is as if to say that there should be rights which are guaranteed because they are recognized by the state. All of this leads to the loss of parameters as to how to lead and how to think about law during the present period because the dogmatic formula, with its pretension towards law and juridical security, is no longer convincing.
This article presented by Artur Stamford, Professor and doctoral candidate in the General Theory and Philosophy of Law at the Federal University of Pernambuco (UFPE-Recife, Brazil).
San Salvador, April 26, 2000
At 11:00 A.M. today Father José María Tojeira, S.J., Rector of the Universidad Centroamericana “José Simeón Cañas”, Mr. Benjamin Cruz, Director of the Human Rights Institute of the University (IDHUCA) and Mr. Pedro Cruz, Legal Assistant of IDHUCA, presented, in the Attorney General's Office of the Republic of El Salvador, the University's response to the resolution by the Attorney General of the Republic on the Jesuit case. The Rectory of the University prepared the following press communiqué in relation to the presentation of the University's response.
IMPUGNS THE ATTORNEY GENERAL
OF THE REPUBLIC'S
DECISION ON THE JESUIT CASE
Since our participation the legal proceedings following the assassination of the Jesuits and their two employees began in 1989, we have affirmed that we seek justice and not vengeance. More than ten years later, first the Central American District of the Society of Jesus and later the Central American University (UCA) itself, to which the Provincial Father of the District has charged the continuation of the case, continues to make the same statement. We are willing to petition for the pardon of those already sentenced (we have already done so on an earlier occasion), but we believe that it is basic and fundamental for the development of a state of law, for the respect of human rights and for the purpose of returning dignity to the victims, that justice be done. During this period of time, international human rights organizations have thought us to be right, organizations such as the Interamerican Commission on Human Rights (CIDH) have thought us to be right and to whose recommendations El Salvador is subject, by international treaty, —as well as the doctrine of Pope John Paul II (“Pardon, far from ruling out the search for truth, demands it.... Another essential element of pardon and reconciliation is justice... there is no contradiction at all between pardon and justice...pardon does not eliminate, nor does it diminish the exigency for reparations, which is a fully a part of justice”. World Mission for Peace, 1997, n.5). The State of El Salvador, by means of its successive government administrations, has always responded with a large dose of superficiality, with a lack of interest in the State of Law and by concealing evidence.
As a response to the presentation of our denunciation before the Attorney General's Office of the Republic (FGR), basing our denunciation on the previous resolution by the CIDH, we must lament that the response has been yet another superficial response, plagued with contradictions and not fully adherent to the law. The Attorney General's Office, when presented with a serious denunciation, should investigate and not seek refuge in an amnesty law in order not to investigate. The possible application of that law to those accused ought to be decided by a judge and not by the Attorney General. To respond to a petition by saying that the Attorney General abstains is another, new and absolute, judicial error. The Attorney General's Office ought to make determinations as to whether the evidence offered in the new petition is sufficient to open the case or whether it is insufficient, but it cannot and ought not to abstain. To condition the investigation into the assassination of the Jesuits upon a Supreme Court decision concerning a petition against the amnesty law implies, once again, a lack of awareness of the functions which are its province. And it is, as well, a way of abandoning its responsibility to investigate and initiate penal actions which borders on criminal contempt, according to the provisions of Art. 311 of the Penal Code of Law.
The document presented by the Attorney General's Office in which our petition is rejected is also plagued with judicial contradictions and affirmations which would be laughable were they not making light of basic rights. To this point, and separated only by a page, there appear the following affirmations: “With the death of the Jesuit fathers and others, constitutional dispositions were not infringed upon or altered, rather, to the contrary, there occurred a serious violation of secondary law, specifically Punitive Law or the Penal Code” (p. 12). Then, on the following page one reads: “It is clear and undeniable that when the crime of assassination, kidnapping, assault, etc. is committed, constitutional rights, the protection of which is typified as a crime, is committed”. Laying to one side the pitiful use of the Spanish language, these kinds of affirmations should be worrisome to everyone because they reflect a crass lack of awareness of the provisions of the Constitution as well as a clear lack of capacity to interpret it. Not only do they reach a decision contrary to law but also they involve themselves in contradictions characteristic of those who are accustomed to exercise power in an arbitrary manner.
Above and beyond the reaction of the Attorney General's Office, some news media have engaged in promoting the repetition of arguments against our petition without taking the slightest interest in the serious nature of our position. It is said that the ten years have passed and that the crime is already covered by a statute of limitations in the sense that justice could not be done to some and denied to others, that all of the victims are of equal value and that, for this reason, since justice could not be meted out to all, it is best not do mete out justice to anyone and the confusion between Christian pardon and legal pardon is sown and promoted.
There is no statute of limitations on the crime because it is not a common crime. The characteristics of the crime are those of a war crime, under the concept of lese humanité. Even were it to be considered a common crime, when the accused enjoy the privileges of state functionaries, the statute of limitations for their crime runs from the moment when their privileges come to an end (Art. 242 of the Constitution). Moreover, it has been the state which has systematically obstructed the possibility of bringing the persons we accuse to trial. It should be enough to remember the refusals of the Legislative Assembly to form an investigative commission, the lack of capacity of the justice system to go forward in the investigation of the intellectual authorship and the denial of the Executive Office to “put forth its best efforts” in the follow-up of the CIDH recommendations. If time has passed, the responsibility lies not with the petitioners but with the State.
We believe that the ideal of justice is that every case in which fundamental rights have been violated might be resolved by means of judicial procedure. If, for extraordinary reasons, justice and the bringing to trial of all is not possible, it is important that one proceed with clarity and determination in those cases in which there are rational indications of culpability. This is even more the case if in those cases are involved persons who were constitutionally charged with the responsibility of monitoring security and the lives of citizens. In El Salvador, at the present time, only a small percentage of those who commit murders and kidnappings are brought to trial. To say that we ought not to bring anyone to trial because only a few are brought to trial and the majority of the criminals remain in a state of impunity, would be to commit an act of judicial brutality and an assault against coexistence of the citizenry of the country.
It is true that all victims have the same dignity. But the Salvadoran State would like one to think that it considers that this same dignity and nothing are two identical realities. The Salvadoran State, and especially the executive power, has not complied with the recommendations of the Truth Commission to recognize and provide moral reparations to the victims of the war. In that context, one cannot now play with the dignity of the victims when they have been so despised and mistreated in a systematic way for so many years. If justice cannot be done for all of the victims, to bring it about in exemplary cases returns dignity to all others.
To say that cases such as the Jesuit case and their two employees, or other similar cases, ought to be left to divine justice, laying human justice to one side is an aberration as much from the point of view of the life and democratic organization of peoples as from that of the Christian faith itself. When there exist clear responsibilities in the commission of a crime, none can say that justice should be left to God, attempting, by means of this declaration, to eliminate human justice. We are sure that God, and by reason of faith in Him, we ourselves have pardoned at least some of those who participated the crimes of the civil war and in the crime to which we are providing follow-up. Many of the criminals who continue to commit crimes today have also been pardoned. But God's pardon does not absolve anyone of the human responsibility to do justice to the victims and procure rehabilitation of the criminals. And this is to be done in a democracy by means of judicial proceedings. From the religious point of view one cannot renounce the Christian responsibility of constructing in this world a more just society capable of returning dignity to the victims and correcting those who commit the crimes.
What we pursue in the presentation our petition is a greater good for El Salvador. Neither impunity nor abstention from justice when faced with crime, nor political arrangements to hide the errors of the past can construct a better country. We are not opposed to measures leading to pardon after the carrying out of justice. On the contrary, we have already asked that pardon be granted on previous occasions. But we consider that it is a good for El Salvador to cleanse the impunity from the past, to recognize the rights and dignity of the victims and to construct the future on the basis of justice. For this reason, it is our wish that, given the serious nature of the crimes committed during the past civil war, that the steps in a process leading to truth, justice, reparation for the victims and pardon be followed.
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San Salvador, El Salvador
Apdo. Postal (01)575, San Salvador, El Salvador
Besides, you can confirm it personally in the
Dirección de Publicaciones offices,
in the same address.
Tel: +503-273-4400 ext. 407, Fax: +503-273-5000