Nicaragua’s Justice System: A Portrait in Grays
“Many judges are utterly incorruptible”’ Bertold Brecht
once quipped; “no one can induce them to administer justice.”
And Baron de Montesquieu argued, “There is no tyranny worse than
that exercised in the shadow of the laws with the appearance of justice.”
These two immortals might have been describing Nicaragua’s justice system today. What do Sandinista Supreme Court Justices Alba Luz Ramos and Yadira Centeno have to say on the subject?
Nicaragua’s judicial branch is always on the spot. The country has never had an authentic judicial system where that old principle of “give each one his due” is truly applied. You only have to drive out to the El Chile hacienda, where former President Arnoldo Alemán spent roughly two years of his prison sentence for embezzlement and money laundering. Does someone who has sacked the public treasury of an alleged $100 million deserve a palace?
Around four centuries ago, Shakespeare put this verdict in King Lear’s mouth: “Through tatter’d clothes small vices do appear; robes and furr’d gowns hide all. Plate sin with gold, and the strong lance of justice hurtless breaks; arm it in rags, a pigmy’s straw does pierce it.” If you randomly ask people on the streets what they think of Nicaragua’s judges, they will most likely answer that they don’t administer justice, or that they’re corrupt. And if you ask why, they’ll surely paraphrase the Bard of Avon: there’s no justice for the poor.
Theoretically, Nicaragua’s judicial branch uses the Continental System, which is based more on laws than on jurisprudence. But it is the Roman precept of judex justus jubenti paret (the judge obeys the ruler), which is the direct fount of Western and therefore Nicaraguan law, that determines how things are done in Latin American tribunals.
Two cases: A peasant and a young boyCase one: a couple of months ago, a peasant farmer walking home alongside the highway between Masaya and Granada was killed by a pickup truck in a hit-and-run crime. Two days later, a man turned the driver—his 22-year-old son—in to the police, who arrested him. Although the young man admitted having been both drunk and drugged at the time, he didn’t spend a single night in a cell. The local police chief, with the express authorization of his superiors, helped the father reach a financial agreement with the victim’s family, on the condition that the guilty party’s identity never be revealed. Two weeks later, the kid left the country for the United States. His father is still here, running his businesses and engaging in politics as a “democratic dissident” of one of the Liberal factions.
Case two: at 6.30 am on Friday, June 8, sixth-grader Bismarck Antonio Ruiz boarded the bus for school. Richard Kent, the driver, was in a rush because he was a couple of minutes behind the excessively exacting schedule for each run. He slowed down when passengers signaled to get off, but never came to a full stop or pulled into the bay alongside the street. Bismarck was the last to get off at his stop and the harried driver inadvertently shut the door of the dilapidated bus on his school backpack. The 12-year-old boy died of “massive hemorrhaging of the thorax and abdomen due to the laceration of his liver and right lung” after being dragged nearly a hundred meters. His mother, Yelba Torres, was inconsolable. Atypical of the families of poor victims, she refused to take a cent for her son’s life. Resisting all manner of flattery, insults and even threats from Kent’s family and bosses, she sued. Four weeks later, Judge Sergio Palacios sentenced the driver to three years in prison.
One of the most scandalous casesIn April 2002, Natividad Ramírez, who was in charge of the Army of Nicaragua’s Security and Protection Unit at the time, decided to assign two soldiers to escort and protect Alejandro Carrión at his home in the municipality of Ticuantepe. Ramírez thought it was the right thing to do; after all, he was the brother of then-army chief General Javier Carrión. A few days later, on April l6, the two soldiers accompanied him to the home of Silvio Ernesto López, where he proceeded to kick down the door. He was furious because the peasant had dared summons him to appear at the Labor Ministry’s Conciliation Department for refusing to give him his severance pay and other social obligations—a grand total of 1,200 córdobas (roughly $100 at the time). No judge would process the charge.
The incident could have passed unnoticed were it not for the fact that two years earlier Alejandro had killed a neighbor in the same community, a 43-year-old plumber named Pablo Leal who was in charge of opening and closing the valve of the drinking water pipe serving the seven communities located along the Ticuantepe-La Concepción highway. Raving like a lunatic, Carrión had berated Leal because he had no water in his house. He went from insults to repeated blows with the barrel of his AK-47 before finally firing three bullets into the prostrate man in front of his three children, the oldest of whom was 12. Carrión never served a day in jail. His brother protected him until the presiding judge, Walter Solís, dismissed the case for “lack of evidence” and the Appeals Court ratified his decision. At the time Solís was filling in for Judge Ileana Pérez, a cunning old judge the police sought out when they had to wiggle out of controversial cases.
Solís paid for that verdict and his decision to dismiss the famous “check scam” case against former President Arnoldo Alemán’s right-hand man, Byron Jerez, with his post. Had he perhaps been bribed in one or both cases?
Sexual violence casesOn August 2 of this year, Masaya Hearing Judge Leonel Alfaro freed Francisco Fletes, the stepfather of Rosita, the 9-year-old whose rape and pregnancy in Costa Rica captured world attention in 2003. Fletes had been arrested after Rosita’s mother accused him of raping the girl and making her pregnant again in 2005. Judge Alfaro decided that the accusation presented by the Prosecutor General’s office was technically baseless. “It only said carnal access, not penetration,” he argued. “That is an ambiguous allegation, and there is no determined date or time or description of where the events took place; although in the second accusation it does say that it was in the bedroom.”
Supreme Court (CSJ) Justice Yadira Centeno objected to Alfaro’s behavior: “The judge’s dismissal of the accusation for want of a description is an atrocity. What more proof could he want than the pregnancy and child born as a product of sexual relations that the man himself has admitted?”
Alfaro’s behavior is not exceptional. With financing from Spanish cooperation, the CSJ analyzed 1,077 sex crimes tried between 2001 and 2004. The study revealed that nearly 55% of the accused were found not guilty and in 62% of cases the appeals judges confirmed the original verdict. All but 5.3% of the victims were female, 44% of them between 13 and 18 years old and 27.9% between 2 and 12 years old. Mediation was applied in 57% of the cases (34 cases of rape and 14 of indecent abuse), even though this is expressly prohibited by Law 230, which establishes the punishments for domestic violence. Only one of the 1,077 cases expressly mentioned Law 230 and the protection measures for the victim established in the law were applied in just eight.
Are such verdicts the result of ignorance? Justice Alba Luz Ramos doesn’t think so. “It’s the application of a skewed justice,” she says, “because when you explain something to people a hundred times and they don’t want to get it it’s because they’re biased, don’t care, don’t want to believe it or have no judicial vocation.”
Ramos has been a judge for 21 years and was the Supreme Court’s first female president. A jurist respected by all sides, she believes that judges “have to be fully aware of their role in society and their obligation to the people, because ordinary citizens go up before them to ask for justice, for each person to get what he or she deserves, his or her just desserts, his or her right. They can’t be partial. Their ideas don’t count; what counts is what the law says.”
Trafficking in verdicts?Justice Yadira Centeno is one of the country’s most prestigious lawyers. It runs in the family. Her father, Aquiles Centeno, is an authentic ethical and professional reference for all law professionals. His vibrant allegations in response to Somoza’s National Guard war council, defending the rights of Sandinista political prisoners, are a matter of record. He was one of the seven justices who made up the first Supreme Court named on July 20, 1979, one day after the revolutionary victory. The others were Roberto Argüello Hurtado, Vilma Núñez de Escorcia, Hernaldo Zúñiga, Santiago Rivas Haslam, Rodolfo Robelo and Rafael Córdova Rivas.
Yadira Centeno defines herself as a “Sandinista at heart,” but without a membership card. “The humanity of Carlos Núñez [an original National Directorate member who died in 1990] left a strong mark on me. He was an example of goodness and honesty.” She is a declared friend and admirer of Doris Tijerino, Dora María Téllez, Leticia Herrera, Sergio Ramírez, Bayardo Arce, Lenín Cerna and Mónica Baltodano. She believes that “sometimes lawyers do their work badly and people lose their rights, their home. It’s terrible. We have to really study the different cases and be fair.” She roundly denies that there is any corruption in the judicial branch.
Ramos isn’t quite as definitive. “Could be,” says Ramos in answer to the question of whether there’s any trade in judicial verdicts. “I wouldn’t put my hand in the fire for anybody. I can’t say that no judge has ever done that.” In defense of the Supreme Court, however, Ramos assures that “we’ve even fired some judges for that kind of thing; we’ve transferred them from the claims court to the criminal court, which is a less attractive field.” She cites the case of the Rivas Civil District judge, Marianela Paredes, who “we know was involved in trafficking with her husband, a lawyer, and they had an office with others.” She was transferred to Carazo as a criminal hearing judge because there weren’t enough votes to fire her.
Centeno and Ramos don’t think there’s any merit in investigating the accusations against former Sandinista legislator Gerardo Miranda, who is alleged to have offered investor Armel González favorable verdicts in a half-dozen pending land disputes in exchange for a fat sum of money for the FSLN secretariat. “That seems absolutely absurd to me,” says Ramos. Both justices deny even knowing Miranda.
Ramos says that one of the problems of investigating a judge accused of corruption or perversion of the course of justice is proof. “Very rarely does anyone come here with a really well documented case,” she explains. “They tell you that ‘he asked me for x…’ or ‘the other one gave him y… and that’s why his verdict went against me.’ We can’t be a hundred percent sure what happened in such cases. When we take measures it’s because various people have come through different routes and give you the presumption that this is effectively what’s going on.”
The most recent, most hard-hitting casePerhaps the case that has had the strongest impact on public opinion occurred on June 29 of this year. Without informing public opinion, the three judges of the Managua Appeals Court’s Criminal Courtroom Number One—Sandinistas Enrique Chavarría and Oscar Loza and Liberal René Bayardo Robelo, Sandinista hero Oscar Robelo’s brother—ordered the release of three men caught moving 3,100 kilos of cocaine in Masachapa in October 2006. “The accused are absolved and their immediate release and the return of their captured goods are ordered,” read the sentence, released two days after it had been handed down. The police had seized 3 vehicles, 11 AK semi-automatic weapons, a rifle, 4 radio communicators, 6 power boats, 4 barrels of gasoline, a thermos, a hand lamp and the coke.
The decision triggered unanimous rejection from all sectors of the country, including the Catholic bishops, the US ambassador and President Daniel Ortega. It also sparked a closing of ranks around the National Police as an institution and particularly around First Commissioner Aminta Granera, its general director. She declared herself “convinced that this decomposes society, sows violence, decomposes the youth and introduces corruption at all levels. Despite the difficulties, the hurdles, we will not lose our determination. I’m not looking for guilty parties in this; it is not my job to judge anybody. They [the judges] know why this happened.”
Chief Prosecutor Julio Centeno Gómez described it as “a threat not only to the nation’s security, but also to the whole of humanity, because organized crime is a threat to world society.” Ortega spoke to the police leadership and the Supreme Court justices “to let them know my concern” and criticized the fact that even “after that great effort” by the police, the judges, “in some cases due to problems of legal judicial procedures,” had ignored “evident, incontrovertible” evidence. According to the President, “that is an attack on one of the Nicaraguan state’s policies, which is a head-on struggle against drug trafficking. They are totally absurd situations. I’d like to think they made a mistake, but this cannot continue. We must act firmly.”
The high-flying Chavarría is finally brought downAnd firmly is how all 16 Supreme Court justices acted. Although Chavarría insisted that “we acted in accord with the law” because there wasn’t “the necessary evidence or it was inconsistent,” the justices unanimously decided just two days after the Appeals Court decision to remove the three judges involved, plus the courtroom’s secretary and adviser, both of them lawyers, because “they damaged the reputation of the principle of action that governs jurisdictional and administrative activity by having acted without considering internal procedures and proceedings.”
The celerity with which Chavarría and his extras were suspended surprised everyone and opened a tiny window of hope that things could change, at least in the struggle against drug trafficking and organized crime. After all Judge Chavarría—an Interior Ministry officer in the eighties—was a high-flyer who enjoyed the total confidence of the Sandinista leadership, including President Ortega himself.
The courtroom that was under his control is also in charge of Arnoldo Alemán’s appeal against the 20-year prison sentence for money laundering and related crimes handed down in 2001 by now-Supreme Court Justice Juana Méndez. For nearly four years Chavarría adeptly sidestepped political pressure to hear the appeal. He was also the key man in determining prison or freedom for the Liberal caudillo at the FSLN’s political convenience: he authorized Alemán’s incarceration in the Modelo Prison (March 2004), his later transfer to the Military Hospital for three months for minor finger surgery (May of that year), his house arrest (November of the same year), the lengthening of his leash to the department of Managua (January 2005) and then finally allowed him free movement throughout the country (November 2006).
The fired adviser, Ana Gloria Reyes, who actually drafted the sentence and got the three judges to sign it, had also gotten another drug trafficker off last year with a verdict signed by two Liberal judges of Criminal Courtroom Two: Orlando Lúquez and Bayardo Briceño. They, however, were not dismissed because the eight Liberal justices in the CSJ refused to vote in favor. According to La Prensa, Reyes had sentimental links with Mario Roberto Peña, implicated together with then-Justice Roger Camilo Argüello in the theft of over US$600,000 from a Supreme Court account.
The case of the drug dollarsIn October 2005, Argüello, a lawyer with a discreet professional trajectory and questionable political loyalties, although ostensibly one of the eight FSLN justices, was the lead actor in what was known as the “drug dollars” scandal. A verdict he cooked up resulted in the release of a Guatemalan drug boss and his partner, who had been arrested in a Managua hotel in April 2004 after $606,540 was found in their vehicle’s spare tire. The verdict further ordered the withdrawal of the money from the Court’s account, supposedly to return it to the accused, at which point it disappeared into thin air.
The CSJ was slow to act. A month later it finally removed from their posts four judges and four jurists involved in the maneuver and suspended their right to practice law or perform notary services. Argüello, however, was not sanctioned even though he confessed in an interview in December of that same year how he had pulled off the stunt.
On December 22, an even stranger twist occurred: three Sandinista judges from the Managua Appeals Court—Gerardo Rodríguez, Juana Méndez and our very own Enrique Chavarría—backed the four sanctioned judges. Although they didn’t reinstate them to their former posts, they did annul the suspension of their professional exercise. The CSJ’s Constitutional Bench revoked this appeal decision on January 11, 2006, confirming the original sanction, but the crux of the issue, Argüello’s invented verdict, was never sorted out. Argüello was finally forced to resign in March 2007, but the Guatemalan drug boss remained free.
As Justice Centeno reflects: “Nothing similar had ever come up before and we found we couldn’t act because the law [the one Argüello used in his verdict] hasn’t been regulated. The case shook us all and plunged us into a deep crisis. Not all justices were implicated, but the errors committed need to be critically reviewed because we all respond to the citizenry, not only the implicated justices; we’re a collective even though we each respond for our own actions.”
Infiltrated by the drug trade?Has drug trafficking infiltrated the judicial structures? No, insists Justice Ramos. “We’re sure it hasn’t, although it has been attempted. I suddenly began hearing rumors there was a network, so I started asking around about it. It was an incipient network of advisers who later left.”
Justice Centeno has a slightly different take: as she recalls it, she realized it was an infiltration attempt because “those advisers were defending the drug traffickers. They were in the airplane trial, they were in the Tipitapa trial, so it was true… And you have no idea how hard it was for us! Because there were justices who didn’t believe that could happen; it’s so unbelievable. But, you’ve seen that when we have suspicions, we’ve immediately gotten rid of the person.”
Was that what happened in the case of Managua’s Criminal Courtroom One, the Chavarría case? “Yes,” says Centeno, “and not only that. We’re now investigating another one in Jinotepe, the Chacocente case [another drug bust], which we haven’t finished yet. The sentence is being appealed; we’re waiting to see what they decide.”
Ramos says it’s impossible not to get involved “when you see judges or justices violating principles, the fundamental basis of due process. In the legal world, if it isn’t alleged by the two sides, isn’t in the file, or hasn’t been said in the hearing, then it doesn’t exist. You can’t go around checking things, arguing and setting out in the verdict things that haven’t been said in the trial. And that’s what’s occurring in this case: a series of lucubrations by the judges involved.”
“We’ve done training on all the issues”The corruption scandals, the questioned political verdicts and the controversy over how the 16 Supreme Court justices and their 16 alternates were divvied up haven’t permitted us to learn about other, more positive aspects of the judicial branch.
In November 2002 a new Penal Processing Code approved by the National Assembly the previous year went into effect. That law determined that the old Code and its reforms would “continue being applied to the existing trials and appeals for minor crimes and criminal offenses” until all were concluded. The two codes effectively operated in tandem until 2006, time the Supreme Court used to train judges and all judicial personnel for the change.
“We’ve provided training on all the all the material,” explains Justice Ramos. “We’ve also created an obligatory Proceedings Protocol on how justice must be administered and the law applied, which highlights articles that allow the judge to apply it in the best way and respect the rights of the parties to the suit. To draft it we involved the judges and other institutions in the system: the Prosecutor General’s Office, Appeals Court and Penitentiary System. And after having them all participate in drafting it, we’ve trained all judges and judicial personnel on the Protocol itself.”
“Not everyone can be a lawyer”An additional problem is the schooling of lawyers. “What happens here is incredible,” complains Justice Centeno. “Every day 200 to 300 new lawyers who know absolutely nothing come on board.” She relates that young people who studied in Costa Rica or the United States or Russia have returned to the country without enough knowledge to work as lawyers, yet “the universities happily accredit their title. It’s unbelievable. Some new university opens every day. And the worst is that it only takes three years to get a law degree; that’s unconscionable. And now there are even institutes to which the National Assembly grants legal status to offer graduate courses.”
To correct this nonsense, Centeno proposed that the Judicial Career Law stipulate that law school graduates must take a Supreme Court exam. But her proposal got nowhere. “It was a scandal; it was horrible. A lot of the legislators had studied to be lawyers and of course they were opposed.”
In Justice Ramos’ opinion, this problem must be dealt with as state policy, because it has to do with the country’s educational policy. “Not everyone can be a lawyer, like not everyone can be a doctor. We can’t even absorb so many graduates.”
Centeno returns to the charge: “The first thing those ‘garage’ universities do is set up a law school, because all you need is a chair and someone to stop by and give any old class. Kids come here with their applications and it makes you want to cry. They don’t know how to draft documents; they don’t even know how to write! How are they going to be lawyers? And we have no choice but to authorize their title because they come with their law degree and their notary title and the law says that if they have an academic degree we have to authorize the exercise of their profession.”
The judges come from these thousands upon thousands of lawyers—some say as many as 60,000. “It’s been hard work,” explains Justice Ramos, “because the other issue judges have in their head is that they have to respect the rights of the accused. Correct; I think it’s very good that the rights of the accused be protected, as stated in the Constitution and International Conventions. But there’s an elementary principle in justice and that is the parity of the parties in the lawsuit. Both parties, the accused and the victim, go to trial with the same rights and we can’t allow the victim’s rights to be diminished by respect for the rights of the accused. Both are equal before the law, before society and before everybody. And both have a right to their guarantees.”
Changes in criminal action: According to both Centeno and Ramos, the changes have been a complete success. They call it “an unarguable reality.” Justice Ramos explains that this is because “the judge no longer investigates; the Police and the Prosecutor’s Office do that. They only go to the hearing judge when they think their case is strong. The judge monitors the investigation to some degree and processes any of the precautionary measures the Police or Prosecutor’s Office ask for, because these are the exclusive task of the judicial authorities, to ensure the application of the minimum legal guarantees established in article 34 of the Constitution.
An “unquestionable advance”
“That judge then decides whether the case should go to trial or not, based on everything presented in the preliminary and initial hearings. If so, it goes to a different person: the trial judge. This is another way to guarantee the impartiality of the judge who’s going to issue the final sentence. The whole process lasts approximately 90 days, from the moment it goes before the hearing judge to the sentence issued after the trial.”
Once the judge has firmly decided on the verdict, the case moves to yet another judge, who is responsible for executing sentences. These judges have the power to apply certain measures in benefit of the convicted person—such as house arrest—and free the prisoner once the sentence has been served.
Justice Centeno says that “the most interesting thing is the criminal trial, which is entirely oral; there’s nothing under the table. When the convicted prisoner goes to the Appeal Court’s criminal courtroom everything’s oral there as well and it continues to be even in the Supreme Court repeal or review sections.”
Speedy criminal processing According to Justice Centeno, “there’s not a single complaint against any criminal judge” now in the Judicial Career Council’s Disciplinary Commission, but there used to be many. She explains that this is because there are no longer any extended judicial delays, as compared to countries such as Honduras, Peru or Bolivia where the jails are full of prisoners who have spent 10 years there without any kind of hearing.
With the exception of Costa Rica, Nicaragua has the least judicial delays in Central America and probably in all of Latin America. But that was already happening with the old Criminal Instruction Code, says Justice Ramos, “because they only gave us 10 days for the pre-trial investigation.” Once that time was up, “there was habeas corpus and the prisoner could be released if the trial hadn’t been started yet. Those ten days didn’t leave enough time” to gather all the evidence, which facilitated the release of the accused. Under the 1879 Code and its Reform, prisoners had spent up to two years without being sentenced.
Why the delay in civil processes?This speedy processing takes place in the criminal court, but not in the civil one, where judges can delay ten years or more. And in the Supreme Court’s constitutional bench? “Yes, it’s true,” says Ramos, “but it’s also a question of law. At times it’s retarded because the Appeals Court doesn’t send the petition on to us.”
There are no political reasons? “There could be,” respond Ramos and Centeno in unison. Ramos believes that ever since the CSJ was divided into different benches, “justice is much less delayed in the Supreme Court. The time spent issuing sentences has been considerably cut.” This occurred in the wake of the 2000 constitutional reform, when the number of justices was increased from 12 to 16. Before then, all justices had to hear all cases: constitutional, civil, criminal and administrative.
Ramos argues that if there are delays now it’s because “there are justices who keep the files in their office for a long time. And it’s not only the file given to them to prepare the verdict, but also those already prepared by another justice who made an effort to get the work out on time, but it gets hung up there. We’re talking here about some justices who have 100-200 files in their office.”
Confabulating between politicians and judgessSpanish jurist Borja Díaz Rivillas acknowledges in his essay “Independencia judicial y construcción del Estado de derecho en Nicaragua” (Judicial independence and construction of the rule of law in Nicaragua), published in early 2005, that in the last decade Nicaragua “has experienced a process of intense modernization of the judicial branch as a result of important institutional changes promoted largely by the international donor community with support from reformist sectors of the Supreme Court and the National Assembly.” He notes that the judicial body now has a greater capacity to control issues related to constitutionality and resolve disputes between the central and municipal governments and between the different branches of the state. It has a budget floor established by law, has reduced the executive branch’s role in the selection of justices, has modernized a large part of its code and has produced “a notable professionalization of the human and material resources if we consider the weak starting point when the reforms were initiated in the early nineties.”
But Díaz Rivillas also underscores the relevance of doing an “in-depth analysis of the political context surrounding the action of the courts, as well as the importance of establishing causal relations between the strategies of the elites and those paradigmatic cases that indicate a clear confabulation between politicians and judges.”
He adds that “Impartiality cannot only be analyzed in terms of relations between branches or exclusively looking at the Supreme Court. The impact on judicial decisions of the FSLN’s actions from the opposition, most particularly those of its leader Daniel Ortega, makes a much broader perspective necessary. It would be hard to understand the FSLN’s great maneuvering capacity in the suits against Alemán and his followers without taking into account the quotas of power that the party has maintained in the criminal courts.”
Who names the judges?One of the things most vehemently questioned by political parties whose candidates didn’t get included in the Supreme Court is the way judges are named to the primary and appeals courts and how justices are selected.
The appointment of judges has been discretionary up to now. And although the Judicial Career Law went into effect on November 30, 2004, the Supreme Court justices haven’t yet approved its regulatory law, precisely because the regulations would theoretically make it impossible for them to appoint friends or political allies to the appeals courts.
By law, the appointment of public defenders, judicial secretaries, courtroom secretaries, process servers, local judges, district judges, appeals court justices and the CSJ secretary must be based on eight principles: merit or suitability, responsibility, equality, publicity (as a guarantee of transparency), stability, impartiality, independence and specialty. But none of this has been applied in practice.
The European Union financed a team of four consultants to do an appraisal of the Judicial Branch. One of the conclusions of their report, “La Justicia en Nicaragua,” is that the relative weight of criminal justice services is very strong in Nicaragua. They explain that 99 of the 134 district trial court judges (73.8% of the total) are assigned to criminal cases. In the sphere of local courts there are 32 specialized judges, 127 one-room courthouse judges and 259 district attorneys, all of whom perform similar functions in the criminal justice field, as well as 78 public defenders and 861 police assigned as judicial aides.
“All this,” says the study, “makes up an important platform of justice services in the country, which has mainly been developed as a result of the penal processing reform.” It also notes that criminal cases make up the brunt of the case load: of the 126,126 cases filed in 2004, 62.4% had to do with criminal issues, as did 84.9% of the 62,909 suits resolved that same year.
The importance of appointing judges grows out of this enormous weight of criminal justice. The commission in charge of regulating the law consists of two Sandinista justices (Ligia Molina and Alba Luz Ramos) and two Liberal ones (Edgard Navas and Guillermo Selva). Both Centeno and Ramos confess that “we also have an internal struggle, some favoring and others opposing. There’s a horrible fight right now over approval of the regulations for the Judicial Career Law. We’ve only signed 40 articles so far, and those took blood, sweat and tears.” Both believe that power is at the root of the problem, because “the president, vice president and everybody else in the Court will lose administrative power, which will be concentrated directly in the National Judicial Administration and Profession Council.” And that means, at least theoretically, that judges will no longer be able to name friends, relatives or political buddies to any post.
“They’re not interested in good administration, but rather doing what they want, without being subjected to any control,” comments Centeno. “That’s the issue, and it’s a really awful struggle right now.” But she denies that party interests are involved, because “we Sandinistas are the ones pushing this the most.”
“No,” counters Ramos,” I think there’s a bit of everything,” which leads Centeno to backpedal a bit: “Sure, there probably is a bit of everything…. But the truth is that the president is Liberal and he’s the one who calls the meetings then fails to turn up, canceling them minutes before. But there are other justices who support him. Sometimes they do something so no one can say they’re dragging their feet, and sometimes they brazenly blame us, right? But I don’t know if it’s really a party issue or a just a coincidence that there are two or three Liberals who are opposed [to regulating the law].”
Then Ramos interjects her own explanation of what “a bit of everything” means: “Don’t get the idea that all Sandinistas are... Some don’t like it and are always saying horrible things to us about the new office management model”—through which judges’ secretaries lose a large part of the power they currently enjoy.
“We want a clean process”Justice Centeno explains that in line with the law they already issued a first call in May for applications for four planned family courts (two in Managua, one in Chinandega and another in Matagalpa). The process will conclude in December, because “it’s super-scrupulous. It has also been one of the most interesting. All the lawyers who let us know they wanted to participate actually showed up. Since then we’ve been reviewing their applications and I’m finding a lot of young people with a doctorate in Family Law. In other words, a good number of people have excellent qualifications. Some participants don’t believe in this process, but I really think it could be very legal. There are people who come up to you and say ‘give me a little push,’ but it doesn’t work like that; this process has to be clear and transparent.”
Justice Ramos remarks that “the lack of faith that the process could be clean is a terrible thing. I have no doubt that many could be tempted to sully it, but so far we haven’t detected anything; nobody has messed with the process. The commission made its selection in accordance with the norms and the invitation was accompanied by a list of all the requisites, even the points each theme, each step of the process was worth. The exam topics were included as well.”
The first phase has now concluded, including the resolution of challenges by those who didn’t make the first cut. The maximum number of points for the first phase is 40, according to Ramos. “Now comes the second phase, in which we appraise the merits established in the law, each with its established point range, and then all those are added up. Then comes the written exam, which will be judged by a panel of people who did not participate in the initial phase. According to the law, the panel will be made up of randomly-selected professors from all the universities. Each page of the exam will be initialed by each panel member when turned in, and then entrusted to the care of the panel secretary. The next day each aspirant has to make an oral defense, giving the judges a chance to assess their capacity to express themselves orally and to be consistent with what they wrote. All that’s worth a maximum of 60 points.”
Another conclusion of the report La Justicia en Nicaragua is a reminder that “The Judicial Career Law requires a series of legal instruments and steps before it can go fully into effect.” It particularly singles out the establishment of a promotion ladder for the legal profession and other judicial officials; regulations to make the law operational (currently under discussion); operational regulations for the Judicial Training and Documentation Institute; the setting up of a Benefits Fund for Retired Judicial Branch Officials; an annual performance evaluation system covering all members of the judicial profession; and internal regulations for the Public Defenders’ Office.
How are the justices chosen?According to article 138 of the Constitution, one of the National Assembly’s attributions is to “elect the Supreme Court justices from separate lists proposed for each post by the President of the Republic and by National Assembly representatives in consultation with the pertinent civil associations.”
The Nicaraguan NGO “Hagamos Democracia” (Let’s Make Democracy), which enjoys US government financing and blessing, writes that “citizens’ participation in the appointment of justices is an issue that has not been of interest to the country’s political class, as in all cases the political parties have wanted to give this instrument a more political bias to legitimize their political patronage agreements rather than demonstrate any genuine desire to consider the criteria offered by civil society.”
It therefore proposes “a constitutional reform that guarantees a more effective arena for participation and advocacy so that civil society is not used as an instrument for legitimizing political party agreements. This could mean moving from being consulted to proposing candidacies.”
Justice Ramos says that there is no ideal system for electing justices; “it hasn’t been invented.” She says some think the best thing would be to legitimate justices and judges by direct vote, citing the United States, where judges are on the ballot in some states. “But I’m beginning to look into this, to see how it works. I wanted to know how I would get on the ballot and discovered that a party has to endorse me. Same thing with the legislators. So I’m more politically compromised. And to get reelected I have to vote not impartially but based on the interests of the sector that elected me.”
The seven US Supreme Court justices are designated for life by the President in office when a seat becomes vacant due to death or resignation. He selects them from among the lawyers or judges in his own party with whom he has the greatest ideological affinity. Ramos thinks it would be “dangerous” to apply this “lifetime” recipe in Nicaragua given “our democracy’s development level. I don’t think we’re mature enough yet. We’re still too wet behind the ears for that. For that to work we’ll have to wait until we’re more aware of the role we play.”
In the majority of Latin American countries Supreme Court members are chosen by the parties, through their legislators. “It’s basically what happens here, through the National Assembly, with its own particular twists,” says Justice Ramos; “direct proposals from the executive branch combined with those of the legislators and of civil society. They’re then elected by the Assembly representatives, particularly those from the two major parties. That’s basically how it is everywhere.” She cites the example of Honduras, “where they elect a legislator as president of the Court. And it’s the same in Costa Rica, where the two main parties reach an agreement. That’s how it’s been up to now although the political correlation of forces is changing in Costa Rica. The justices there have one advantage: they’re in for a ten-year term and removing them before then requires a vote of censure from two thirds of the Assembly, which gives them a certain margin of liberty and autonomy.”
Justice Centeno agrees with her colleague’s criterion for improving the election of justices. “There are nuances we can look for: experience, proven ability, proven honesty,” which would ensure that those elected are conscious of their responsibility to society. “What role we’re playing, what people are expecting of us,” both affirm. “That’s the simplest formula. And the other issue is to strengthen institutionality, which is what we’ve been doing recently.”
Do they vote by conviction or “consult” first?“Strengthening institutionality” is also a challenge many justices from both ideologies are resisting, admit Centeno and Ramos. Is decision-making based on party interests or on the justice’s own convictions? I ask them both. “When we’re meeting in full court—for example in the case of appeals of unconstitutionality—it’s a question of votes,” answers Justice Ramos. “Sometimes we all vote the same, and at others there are dissenting votes. That’s by conviction.”
The conviction of each magistrate? You don’t vote by party bench? “The difference needs to be explained,” says Ramos. “Constitutional justice is political justice. It butts up against politics and co-exists with it. So we can’t come to an agreement on all constitutional justice cases. But in relevant cases we [Sandinista justices] meet previously to discuss what to do.” And do you also “consult” beforehand? “No,” she insists, “we don’t consult with anybody else, just among ourselves, which is not the same.”
The citizenry views things differently, as La Justicia en Nicaragua reports: “There are perceptions in the country that justice is not independent. This reveals a problem that needs to be confronted, as it has to do with a basic institutional guarantee of functioning that contributes not only to resolving conflicts, but also to the legitimacy of the political system itself. After all, if we do not have a judicial branch that imparts justice according to the law, we are facing a world of arbitrariness.”
William Grigsby Vado is a Nicaraguan journalist.