Corruption and Party Polarization: The Cancer in our Justice System
Julio Francisco Báez, a Nicaraguan specialist in fiscal law,
is a member of a legal commission created by President Bolaños to analyze the problems afflicting the country’s justice system. Báez presents the commission’s recommendations below, along with some of his own views on the subject.
Julio Francisco Báez Cortés
On February 21, a symbolic date for Nicaragua as it commemorates the assassination of General Sandino, President Bolaños set up a legal commission consisting of 30 members, 25 of us lawyers. We included current and former magistrates, current and former judges, university lecturers and independent lawyers. The idea was for us to come together to make recommendations on how to transform justice in Nicaragua. For some this meant suggesting how to improve the system of administering justice, while for others of us it meant going further, making recommendations to improve the country’s entire legal system. These two ways of looking at reality marked a conceptual difference within the commission that was strongly debated among us.
A distinction with a differenceAlthough the distinction between the two may appear merely semantic, there’s far more to it. Concentrating on the justice administration system is equivalent to concentrating on the judicial branch, which is its spearhead. While the judicial branch is certainly the end point of the whole socioeconomic dynamic around institutional matters and the rule of law, it is neither the beginning nor the end of Nicaragua’s complex problem of justice. Viewing it as such would effectively leave the rest of the national legal system to one side. For example, the electoral branch also has to do with the administration of justice and the legal system as a whole, yet has become one of the branches most discredited by corruption and its shameful behavior. Not once in recent years has it acted in accord with the law to resolve any of the appeals within its jurisdiction. This is an eloquent indication that any transformation of justice in Nicaragua must involve a reform of the entire state. Otherwise, we will be limiting ourselves to the "curative part": fair judges, new laws and reforms to existing laws. As long as there is no comprehensive renovation of the branches and institutions destroyed by the constitutional reforms of 2000, when two parties made a pact under the slogan, "If you win, you win, but if I lose, I still win," we will be far from achieving a "democratic, upright and independent form of justice, in which the law is equally applied to all," as our recommendations propose.
This broader position, which we expressed to the commission in a letter, can be summed up as follows:
"The underpinning of the constitutional mission assigned to a branch of state to provide justice is the comprehensive organization and institutionalization of the rule of law. Based on the express delegation conferred on this legal commission by President Bolaños, the expected results must include and refer to ALL spheres of national legal activity. Practically speaking, the presidential initiative thus consists of creating a kind of ad hoc council to deal with the transformation of the legal system as a whole. In this sense, the fair administration of justice clearly represents the greatest challenge and highest priority for the rule of law in Nicaragua today."
The other commission members accepted our position, but for a somewhat hypothetical "second stage" of the work, prioritizing for now the system of administering justice from the judicial branch perspective. Although some of us did not agree, we did not want to hold things up. We had to start somewhere, so we started there.
In the end, we officially presented our recommendations to the President on April 30, after two months of work and debates. The public learned about them through the newspapers. The recommendations are good, but they are just the first step, limited by being aimed only at improving one state branch, the judicial branch, neglecting the others.
Looking for good things tooOur starting point was to avoid the trap of viewing things too negatively by only examining the bad aspects, without highlighting the advances in the administration of justice in recent years. For example, great progress has been made in the system’s infrastructure. A few years ago, the country had no justice of the peace offices, but now there are 123. There are also local courts in remote parts of Nicaragua where they have never previously existed. Another advance is the organization of a case distribution system. In the past, if you wanted to accuse someone, you chose a courtroom presided over by a judge who was your friend and would rule in your favor. A random case distribution procedure has now been established so that favoritism can no longer be applied at will.
Many other material and institutional advances were identified and recognized as well. They include the establishment of a Judicial School, a Forensic Medicine Institute and a legal aid office guaranteeing a defense attorney for people with no means to contract one; the construction of judicial complexes in Granada, Masaya, León, Estelí, Puerto Cabezas and Chontales; and the promotion of a pilot plan to reform the property registration system. We particularly highlighted the reorganization of the Attorney General’s Office, dividing the old institution into the Office of Public Prosecution and the Office of Attorney General. Nor should we forget, of course, the creation in 1999 of the Office of Human Rights Ombudsperson with its array of special offices (for women, children, indigenous peoples).
Two overriding problemsThese advances coexist alongside two very serious problems affecting the functioning of the whole system that were identified by all of the commission members. The first problem is the generalized corruption, which did not even require debate. Although it wasn’t like claiming the earth was round, it was still significant that none of the 30 people involved, with such different origins, functions and professional practices, had a dissenting opinion. This basic agreement was an essential starting point for making proposals and recommendations.
The other great problem we identified, although not as unanimously, is the polarization and, more specifically, the party-biased orientation and administration of justice as a whole. This is so widespread that no important case can avoid being filtered through the interests of the two big parties and their respective political bosses. Without exaggeration, I would qualify these two problems as a cancer that is eating away at the entire system.
Delayed justice—the crudest formTo a great extent, the other fundamental problems affecting Nicaraguan justice derive from this cancer of corruption and party subjection, resulting in servile judges who are obedient to the dominant parties rather than to the law. Linked to this ailment is the problem we defined as the "extreme sluggishness" of the administration of justice. Every day we hear about delayed justice, which is another child of the corruption, the division along party lines, the influence of the powerful and the pacts among them. It is often said that late justice is no justice at all, but in Nicaragua’s case we should perhaps amend that to say that late justice is the most obscene and crude form of justice.
Many cases can be use to demonstrate how all of these serious irregularities in our justice system are linked together. I’d like to recall one. Four years ago a judgment was reached in a case brought in 1996 by no fewer than 307 workers laid off by the Victoria Brewery who were demanding the rights they had acquired during the company’s privatization as part of the economic agreements promoted by Violeta Chamorro’s government. The Victoria Brewery belongs to the Pellas Group, the most powerful economic group in the country. During the trial, in which the workers were being defended by Roberto Argüello Hurtado, an honest and distinguished fighter in this and many other cases, the legal arguments did not go the company’s way and it lost. Consequently, the company went all the way to the Supreme Court, alleging that it was a civil case and not a labor dispute. Following what can only be viewed as a "partisan agreement," the Supreme Court, with four justices dissenting, ruled in favor of the company’s allegation and ordered the parties involved to discuss their rights through a civil process. The sentence was a judicial barbarity, as piles of documents demonstrated that the workers had been fired in a labor relation. New appeals followed on the heels of this monstrous sentence and are still there, six years later, awaiting a definitive ruling. Most of the workers have been bought off with "indemnifications" and others have died, leaving just a few dozen to fight on. But even they are tired and no longer have the energy, time or resources to continue fighting. This case exemplifies how things work in Nicaragua and it and other such cases must be brought to public attention if we are to transform justice in Nicaragua.
Let’s take a look at another scandalous and heartrending case that is synonymous with delayed justice and demonstrates its political implications. Two years ago President Alemán increased the social security contributions of workers and employers because a new social security system was about to start up in the country, parallel to the phasing out of the older system. The first, which is called the Public Social Security System, has been in effect since 1957 and will continue to apply to people who are over 43 years of age at the time the new system goes into effect. The new system was born under enormous pressure from international organizations to privatize social security and permit the creation of private pension fund administration companies, and will soon be applied to the under-43 workers. Application of the new system, known as the Pensions Saving System, will represent a real social bombshell. The 1995 constitutional reforms, however, prevent the President from creating, repealing or reforming any levy; such actions are the jurisdiction of the National Assembly. And as social security contributions are defined as "special contributions," which constitute a specific form of levy, the President’s unilateral move to increase them was unconstitutional.
This legal irregularity was widely denounced by public opinion, triggering debates and a generalized controversy. To put an end to it all, the representatives of the international organizations pressuring for privatization of the social security system—the IMF, World Bank and IDB—held a press conference to declare that President Alemán’s unconstitutional measure was totally legal and correct and "guaranteed national development." They were flanked by top government officials, including Noel Ramírez, then president of the Central Bank and now a National Assembly representative, and Esteban Duquestrada, then finance minister and currently a fugitive from justice.
Over forty appeals for court protection and charges of unconstitutionality were lodged against President Alemán’s measure, but the Supreme Court has failed to rule on any of them for over two years now. Meanwhile, Nicaraguans with social security coverage have paid 1.5 billion córdobas in extra deductions to the state due to the unconstitutional measure. After such a long delay of justice, what would happen to all that money if the court were to rule in favor of the appeals, as it legally should? It is obvious in this case that the delay in justice is basically a denial of justice, that these appeals will never receive a favorable ruling, or perhaps any ruling at all.
Three categories of recommendationsA much-needed assessment of justice in Nicaragua in the future must be placed in this wider and truly dramatic context. We in the Legal Commission only made certain recommendations, organized into three main groups: 1) to achieve the independence of the judicial branch; 2) to achieve an effective and efficient justice system; and, 3) to adapt our legislation to the new realities.
Independence of the judicial branch. We made several recommendations in the first category. We proposed, for example, that the Supreme Court justices should be appointed for periods longer than the five years coinciding with a government’s term to stop the President from promoting his own candidates to "accompany" his administration. Some proposed that magistrates should hold the post for life as in many other countries. I personally agree, but not for the moment at least; our historical, ethical and moral conditions, our current reality, council against it. In the end, we recommended that they be elected for seven-year terms.
There was also a debate over reelection for these posts. Some did not oppose reelection, but our historical circumstances also warned against this. With the honorable exception of Violeta Chamorro, the fact is that those who have governed have always wanted to continue governing and former parliamentary representatives want to continue being representatives; in short, everyone wants to be reelected. With their high salaries and privileges, public posts have become a modus vivendi rather than a modus operandi at the service of the people.
In Nicaragua, "reelection" is a bad word, a hateful word. In 2001, several of the justices currently seeking reelection were responsible for important decisions on the privatization of the country’s telecommunications company, using illegal procedures riddled with tricks and dodges. The level of illegality in this case was such that one justice opposed to his colleagues’ decision reacted in a way that was as dramatic as it was unheard of: he made a national appeal for nobody to obey the Supreme Court. Imagine that! A justice calling on us to disobey the institution to which he belongs! I’ve never heard of such a case anywhere else in the world.
The commission recommended that the "new justices" be elected as a result of extensive searches and consultations that lead to national consensus. We used the term "new justices" to expressly demonstrate that we formally oppose the reelection of any current justices. The problem facing the country in the upcoming elections, which must be held in July, is that while these new justices should be elected as the result of national consensus, they will be selected by National Assembly representatives who were themselves elected as a result of the pact.
Still looking to guarantee the independence of the judicial branch, we insisted on the creation of a judicial career and that it be based on merit. Thus a local judge would have to work hard to make it to the local courts, having previously performed well as a student and been chosen in open competition rather than as a representative of one party or another. Likewise, promotion from local judge to district judge would have to be based on an honest professional record, while only the best district judges would become magistrates. Finally, the Supreme Court justices would be the crème de la crème of the magistrates. We emphasized the ethical qualities that should be demanded of all legal professionals such as lawyers, notary publics and the like.
Nicaragua still has no judicial career, and without it we have nothing at all. There are currently two bills in the pipeline. The first, based on an academic study conducted by the Central American University, was presented to the National Assembly by a parliamentary representative and fulfills all the necessary requirements. The Supreme Court justices are drawing up the other, but they are taking forever with it, using the astonishing excuse that they will not present their bill until the other one is withdrawn. It is incredible that we have over a hundred justices of the peace in places as remote as Bocay, El Cuá and Planes de Vilán, but the Supreme Court, head of the judicial branch, still hasn’t produced judicial career legislation to instill career professionalism into the administration of justice, even though it has been discussed for years.
We also insisted that the administration of justice can only be improved through the judicial branch if it is accompanied by the application of an ongoing education, professional updating and technical systematization process to the whole system. This is currently being implemented through the Judicial School, but we have proposed strengthening it by means of certain concrete actions.
The commission also stressed the importance of justice being truly free as another way to guarantee the independence of the judicial branch. Although the Nicaraguan Constitution states that justice must be free, this principle is not upheld in practice. In reality, the courts charge for dispensing justice. We proposed severe measures for correcting this situation. In addition, making an appeal or applying for certain court writs require a bond to be provided, while in civil cases one must present all written documents to the court on stamped "fiscal" paper—at a special price—or else automatically lose the case. These may seem like trifles, but rights can be violated and just claims lost, particularly by very poor people, because of such trifles.
Other rights are violated and just claims lost for reasons that certainly could not be described as trifles. I’d like to give you one example that demonstrates that the big boys always get the lion’s share in our justice system. Not long ago the Association of Private Banks paid a "courtesy visit" to the Supreme Court and was received by nine justices. The bankers told them that in the fight against corruption initiated by the Bolaños government they were detecting an irrational and unfair media offensive against bankers—some of whom had already been accused of involvement in the "luxury vehicle scam." The bankers, alarmed by the deterioration of their image, went as far as to ask the justices to use their good offices to put a stop to the hounding and finger-pointing implicating them in the corruption.
One justice explained that they cannot tell any judge whether to try a banker or to declare them guilty or innocent, as judges can only be guided by the Constitution and the law. Whether judges honor this is another matter, but in any case that is the principle. Immediately after such an inspiring display of principle, the justice offered an example of the responsibility some bankers also have in the incorrect administration of justice, suggesting it be corrected. He noted that some banks pay certain judges fixed salaries to concentrate on special chapters of the registries and on the courts that process bank foreclosures on properties mortgaged by people who then default on their debts. Little mention is made of this, but these judges earn more for the work they do for the banks than they do on the judicial payroll and, thanks to them, the banks hardly lose a case.
An effective and efficient justice system. To improve the effectiveness and efficiency of the justice system we proposed a rational distribution of the judicial bodies, setting up a court wherever justified by the size of the population until an adequate balance is achieved. There is a scandalous lack of labor courts in the country—only two in Managua and one in León—even though labor law could be considered the main branch of social law. With Nicaraguan workers so abandoned by our justice system, it is impossible to speak of labor justice.
We also proposed strengthening, and never limiting, the justice budget. In Nicaragua, a good government would make history by prioritizing health, education and justice. On this point, however, we ran up against one of several contradictions we have observed in the fight against corruption. Verily as we were discussing the importance of a good budget to make justice efficient, the President himself was cutting the budgets for the Supreme Court, the Office of Human Rights Ombudsperson, the Office of Public Prosecution and several other institutions of the justice system. And this brings us to the central point: the urgent need to rationalize the government apparatus and reform the state so that, in the words of Tomasini, we will be capable of forming a catalytic state. Such a state steers rather than rows, is oriented to the community and strengthens rather than controls social and economic agents. In short, it is a form of state and government with a vocation for results, rather than looking to nibble away at budgets.
We stressed that adapting our legislation to the new requirements is not about increasing the number of laws. Rather, among other urgent matters, it involves reviewing and cleaning up existing laws, adequately assessing the implementation of new legislation, making an inventory of the largely unknown and unfulfilled international treaties and agreements signed by Nicaragua, simplifying the legal and administrative procedures to make them more flexible and cut down on red tape, etc.
Adaptation of our legislation to the new realities. The problem in Nicaragua is not a lack of laws. The current debate over the Code for Children and Adolescents shows exactly where the problem lies. How can we ensure that a very good code actually works if we don’t provide the right resources and have no political will to put what is established into practice? The sinister voices currently trying to discredit the code and demanding that it be reformed ignore the fact that it has not yet even been implemented due to the lack of both resources and political will. Something similar is happening with the Penal Code, which must go into effect by the end of the year, but which some people are already trying to postpone for the same reason: because there’s no budget with which to implement it. It’s a vicious circle. It is said that such laws are not adapted to our reality, seeking to conceal the fact that political priorities continue to rule over authentic social priorities in our reality.
It is impossible to omit from this reflection the urgent need to start up courts to hear cases brought against the state by individuals or organizations, which would provide citizens with the tools to effectively defend themselves. So far, we only have one inapplicable law and a million unfulfilled promises.
Certainly any transformation of the administration of justice in Nicaragua must do something about the budget, institutional capacity building and new laws, but the laws and the apparatus are not the problem. The problem lies in people; it is ethical and moral. The lack of ethics and morals has placed our institutions in crisis and the politicians party to the pact are responsible for castrating the institutions, appointing to them a bureaucratic caste disinterested in transforming the current situation. That’s why we in the Legal Commission opened our proposal with the following quote from jurist Pietro Calamandrei: "At the end of the day, laws are worth as much as the men who apply them."
All will be in vain without civic pressureAnd last of all, the most important matter. None of our recommendations will be realized if the citizenry does not exert pressure and decidedly and effectively occupy the relevant arenas. It took us two months in the commission to draw up our document, which is an important first step, but more than two months have passed since then and nothing further has been done. The newspapers published the proposal and the President called us to present our report in a nice ceremony and toasted it with iced coffee. But another two months have since passed and no progress has been made in promoting a broad consultation process. This consultation is necessary because people have a lot to say about the matter. If the grass roots don’t get behind these proposals and recommendations, there is a major risk that the report will become just another piece of useless paper like so many others before it.
Have any sub-commissions been formed to help implement the different proposals? No. Has anyone continued working on them? No. When we began our work, a top public official on the commission said: "We’re talking to foreign cooperation to see who can give us computers and a place to work." And some of us said, "If we get a computer in here, we’re gone!" We’ve gotten used to conditioning our efforts on the material donations we receive, and when we do that, we’re lost. Nicaragua’s institutional paralysis is an expression of a crisis of values. We need ethics and values, not computers. The fact that two months have gone by without anything being done seems to me the most palpable demonstration that the changes in the justice system and therefore in the legal system will never happen unless people mobilize. Our effort must be accompanied by the active participation of the citizenry.
This has to be a stubborn fight. We must be pig-headed and keep plugging away, making noise in legal and social arenas, in the media and in the streets, using appeals, letters, articles, discussing ideas... Up to now the poor are losing the game, and this has to change. We have to win with them even if the game is decided by a lucky goal, which usually makes it in with arms and legs flying all around! Things have to change in Nicaragua and it is up to all of us citizens, both women and men, to change them. We have to live in dignity and be prepared to die with dignity to make things change. We have to be capable of dreaming up a better Nicaragua with our hearts and minds.
La Crème de la Crème?
On July 21, 5 of the 16 Supreme Court justices completed their term. The election of their replacements, which falls to the National Assembly representatives, has no precise date, and in these times of the Ortega-Alemán pact can easily get bogged down by all the calculations and weighing of interests, leaving the court functioning with only 11 justices.
President Bolaños presented his list of 15 choices to the National Assembly on June 26. Of those, 12 were from the list sent him by the civil society representatives in CONPES, a consulting body to the presidency on social and economic matters. Bolaños insisted that his objective was to remove the party stigma from the court, and thus untie one of the most visible knots of the pact. "The time has come for the political elite to stop trying to subject the judicial system," Bolaños urged upon submitting his list.
Both the FSLN and the PLC have their own candidates, and do not seem the least bit interested in those proposed by Bolaños. Between these two parties, the President and various other groups and sectors, no fewer than 97 candidates have been presented to occupy the 5 vacant seats on the Supreme Court bench. One "solution" guided by the PLC-FSLN pact would be to choose three bands rather than just two, with two justices loyal to the FSLN, two loyal to the PLC and one proposed by Bolaños.
Given the current correlation of forces, which gives the FSLN’s interests a 6-5 majority, the choices open to the Bolaños choice could get pretty interesting.