Headlines, Human Rights, Latin America & the Caribbean

EL SALVADOR: Hard-Line Policies Vs Rule of Law

Raúl Gutiérrez

SAN SALVADOR, Aug 11 2008 (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.