From "Anti-imperialism and APRA" to "Clientelism and APRA" in the justice system. Less independent justice will leave the second government of Alan García
Author (s): David Palacios Lovatón
Introduction
"Anti-imperialism and APRA is the ideological ideals of the APRA party, written by founder Victor Raul Haya de la Torre in the twenties of the twentieth century, inspired by socialism, but trying to find a "third way" "American Indian" distant from the community whose main slogan was "bread and freedom." However, almost a century later, the anti-imperialism and socialism is little or nothing. At present, the second government of Alan García has been characterized by promoting domestic and foreign private investment without observing proper environmental standards or human rights, intolerance of criticism and dissent, to which he described as " dogs in the manger "- and a growing political corruption, judicial and economic.
That is the origin of the title of this document: APRA plot the evolution of a revolutionary party to a party initially highly clientelistic and corrupt, in a specific field and partial control system and co-optation justice through various modalities. In this paper we intend to approach this phenomenon and a few hypotheses for why a "historic match," and supposedly democratic as APRA, resulting in a pattern of practice in front of the justice system undoubtedly erodes the balance of power and the necessary "checks and balances" ("checks and balances"), without which we risk the same rule of law, as demonstrated by the new authoritarianism in Latin America to undermine the operation of capturing democratic institutions, among others, institutions judicial system (the Fujimori in Peru or Chavez in Venezuela).
1. Political and judicial
American Popular Revolutionary Alliance (APRA) today Peru's APRA party (PAP) is a political party in Peru founded in 1924 in Mexico City for a political leader historic in the country: Víctor Raúl Haya de la Torre. Is a party with 85 years of history and certainly has been and is a major player in the political history of the country for many years its leaders and suffered persecution, exile or prison, then was political opposition also agreed with political groups that formerly had sought (the "cohabitation" with the former dictator Manuel Odria in the twentieth century or the alliance with Fujimori in the XXI century) and have come to power in two terms of the labor Alan García Pérez (1985-1990 and 2006-2011).
After noting, on the one hand, the existence of political parties is essential for the functioning of representative democracy and, on the other hand, the weakness of the system parties in Peru, APRA's historic presence on the national scene should be considered as necessary, although its performance has not always helped to strengthen the democratic system, but often suffer erosion, among other problems, with serious corruption.
corruption and government ineptitude in the first government of Alan Garcia were of such magnitude that to win the presidential election for the second time in 2006, the APRA candidate had to admit past mistakes and ask for a "new opportunity" to the country, so in second round ended up being anointed President as the "lesser evil" candidate against the "anti-system" Ollanta Humala.
Unfortunately, no judicial or parliamentary inquiry, flourished about serious acts of corruption committed during the period 1985-1990 and, falling Fujimori and Montesinos, Garcia was able to return to Peru in late 2000 because to the Supreme Court prescribed the crimes of corruption against him, filing lawsuits definitely against him. No doubt this contributed significantly impunity "apristización" justice system as reported in the late eighties and we refer to lines down.
On the other hand, during the nineties, Fujimori and Montesinos controlled and fully submitted to the Judiciary, the Public Ministry, the Constitutional Court (TC) and the National Judicial Council (CNM), as stated in a remembered vladivideo April 1998 showing the former aide Vladimiro Montesinos expounding to 13 congressmen and two ministers then, at the offices of the intelligence service, how they had managed to hobble these institutions of the justice system to ensure re-election of Fujimori 2000.
This submission and total control of the institutions of the justice system was done under the pretext of an alleged "judicial reform" that began with the dismissal by decree-law of most judges and prosecutors holders immediately after the coup of April 5, 1992, which continued with the installation of the intervening Commissions Judiciary and Public Ministry in 1995 and recently culminated with the fall of fujimorato late 2000.
Admittedly, at first, Fujimori had the majority public support to adopt these measures of involvement of these institutions [1], then certainly the Judiciary and the Attorney General, before Fujimori was, to put it bluntly, a disaster and very difficult to defend, both in their performance (judicial exasperating slowness) and its public image (laxity, corruption), so much so that Fujimori medially re-christened the "Palacio of Justice "(head of the judiciary) as the" Palace of Injustice. "
Precisely one of the most serious charges that are foisted upon the judiciary and the Public Ministry in the early nineties it was his "apristización", ie during the period 1985-1990 the APRA power had been placed as judges many lawyers and prosecutors linked to the party, among other reasons, to cover the backs of criminal investigations of corruption or human rights violations once they leave the government: "... in the aftermath of the government of Alan García (1985-1990 ) and the early nineties, some media, political analysts and experts, drew attention from the increasing interference and influence on the campus judicial APRA, in particular by judges and members related to the political group , which prevented the investigation and prosecution of corruption cases, increasing the public's sense of impunity and consequent distrust of the justice system. "[2]
In his message to the Nation by the coup of April 5, 1992, Fujimori justified this measure, among other things, denouncing the" political sectarianism "in the judiciary, in clear reference to the" apristización "that was spoken.
proudest face of this little modern judicial history, falling and recovering the fujimorato democratic institutions, there was a widespread national consensus, including political parties such as APRA undoubtedly involved in the transition Roundtable and facilitated by the OAS should not re-engage the judiciary nor the prosecution and that all should contribute to strengthening the pillars of the rule of law as the balance of powers and judicial independence. Unfortunately, once in power, APRA did not honor the commitment made by the democratic parties during the transition.
2. Initial presidential promise to root out patronage in the APRA
Alan Garcia, whose disastrous first government was a chilling shadow hard to forget for millions of Peruvians, fails to pass a second round with only 24% of the vote, winning by a narrow margin to center-right candidate Lourdes Flores. Already in second round, played in his favor the logic of "lesser evil" against the anti-establishment candidate Ollanta Humala wins the election and also by a narrow margin, as only 700,000 votes apart (take note that there approximately 16 million and a half of voters in Peru). This brief account is to better contextualize this excerpt from the speech he gave Garcia barely won the elections, on June 4, 2006, in the local supporter of the APRA and facing a crowd
Alan them warned his followers that it was a day of joy, but of reflection and contrition, and had to leave behind forever the vices creeping in the past earned him the repudiation as censorship APRA .
"No one can reach power if you do not accept the errors of the guilty. This time we have to demonstrate breadth and conviviality. Do not look inordinate appetite, do not take advantage of the pseudo APRA to climb in public administration. No frills, no trips, no advice, no salaries succulent, anything that means offending the people, " Garcia said, by proposing a massive and very timely pulling of ears (Renato Cisneros, El Comercio, June 5, 2006, Lima)
Therefore, the second debut of Alan García generated expectation that prudent had matured, he had changed and that he and his party were not going to commit gross errors of the past. In that vein, his first cabinet headed by former Prime Minister Jorge del Castillo, indeed showed signs of political opening with the addition of some independents as Ministers. However, almost simultaneously spread a video (apparently policy Peru is a "video-politics") in which the former Minister APRA and former personal secretary Alan García, Agustín Mantilla, reassured a group of militants APRA assuring that these attitudes of openness would last only a year, maybe years and a half, as a matter of public image, but that after the "companions" of the party were going to occupy public office. It should be noted that Mantilla was convicted purged the judiciary and prison because he received $ 30.000 Montesinos directly (there is a "vladivideo" also on the matter).
Unfortunately, four years after the speech hopeful Alan Garcia and sectarian Mantilla prediction, we believe that the second was right. Currently, in various sectors of public administration and justice system, we note a growing presence of APRA militants and worrying reversals in transparency of public information, according to various newspaper reports. At ministerial level, APRA has been taking control of ministries that handle more public investment clearly patronage purposes: transport and housing or social assistance program Foncodes. As we noted presciently in a column newspaper analyst Carlos Ivan Degregori some time ago: "Alan Garcia has matured, has grown old."
That's right, Alan Garcia has shown during these four years of his second term he learned the lessons of the market, now is an enthusiastic promoter of private investment in the country, unlike his first government and congratulations to be so, "but not democracy, it has become to incur the same mistakes of the past, zero transparency in governance, hostility and intolerance of independent journalism and civil society organizations, attacks Final Report Commission of Truth and Reconciliation Commission (TRC) and several corruption scandals that would involve high levels of government and the APRA (as the scandals of "petro-audios" Cofopri, troopers Chinese and Israeli APCs).
On two occasions, the Government today announced an all out fight against corruption: when creating the National Anticorruption Office (ONA)-in front of a former judge and likely-corruption Plan the current Prime Minister Yehude Simon, the first was off a year later unnoticed and the second went completely unnoticed and no impact (including, was sanctioned for improper use of government property a public official who, ironically, was responsible for coordinating the anti-corruption Plan.) Recently, former Comptroller General, Genaro Matute, launched an anti-corruption initiative and without the drive enough to reverse all the progress made by the corruption in this government.
In this regard, a public opinion survey implemented in July 2010 by Ipsos Apoyo commissioned by the newspaper "El Comercio", clearly the public has the perception that corruption has worsened "in the Garcia's second government. [3]
Starting from the premise that the balance of powers (the "checks and balances") and judicial independence are essential parts for the control of corruption from What power has been the attitude of Alan García and APRA in the institutions of the justice system? Has helped to strengthen or at least to respect its independence? Certainly not. On the contrary, has kept the bad habits of the past: co-opt and control, albeit partially, judges and prosecutors through various mechanisms:
• The manipulation of the parliamentary appointment process of judges of the Constitutional Court.
• Promote arriving in the judiciary or the National Judicial Council, or family affiliation candidates of APRA. The cancellation of the contest for chief prosecutors from the CNM in February 2010 for being riddled with irregularities, was a clear example of this manipulation from power.
known • Allow judicial officers (judges, prosecutors and trial lawyers) to maintain their networks of corruption, in exchange for favors court. The current President of the Superior Court of Lima, Cesar Vega Vega, remains in office despite the fact that in 2009 released a video that appears at a rally supporter of the APRA.
• Press indirectly judges and prosecutors to influence their decisions. These pressures may be political, budgetary, family, offering favors or privileges, among others. The case of the "petro-audios" no progress despite the gravity of what happened and the time elapsed on the contrary, research is hampered by mutual accusations between the judiciary and the Public Ministry for the alleged disappearance electronic information seized.
The second government of Alan Garcia will leave us less independent justice
Why Latin American political movements rooted historical and popular as the PRI, Peronism or APRA, have traditionally engaged in forbidden practices of political patronage?
In the case of APRA and bad practices with the law, which has returned to display in this second government (2006-2011), we believe that this is reflection of his political philosophy: everything is an object of contention, all is under negotiation, also justice. If co-opt or control by direct or indirect pressures judges or prosecutors, or gifts or perks, will mean fewer criminal investigations, less tax claims against it, then the co-option or control of justice is justified. On the other hand, if co-opt or control will mean more-and more powerful attacks against political rivals, then fine. Impunity and attack are the standards for justifying their intervention forbidden justice in the case of APRA in Peru.
This logic party is, however, only one side of the coin. The other is to employ its members, provide economic benefits are compelling reasons especially in a country where unemployment and underemployment among lawyers is very large. Thus, the APRA achieves perfect symbiosis of patronage and reciprocity in the Peruvian justice in Latin America: "I get a job as judge, prosecutor or public prosecutor and, in return, you will help me to protect the party and its leaders face complaints and investigations" . Usually, this works with lawyers client relationship that otherwise would not have any possibility of access to public office as important as that of judge or prosecutor. Certainly There are exceptions that prove the rule, such as former President of the Constitutional Court, the university professor Victor Garcia takes that as a known militant APRA, during his tenure as a magistrate had given preference to institutional loyalty to the TC over loyalty party, winning, of course, the dislike of the APRA leadership. He is currently Minister of Justice and, again, knowing your APRA membership was consensus on several political sectors and civil society to be named an honest person.
solution Does this trend atavistic-and undemocratic, the APRA reach into the justice? It is important to ask this question because, returning to the initial premise of this document, in a pluralistic system of political parties as we want for the rule of law, it is not unreasonable to think that-beyond likes and dislikes, the APRA again be government in the future. In that sense, it is conceivable that new generations of APRA be understood from the perverse political philosophy on justice? Is it possible to think that political debate can be confident that APRA must mature democratically what justice? In our opinion, if APRA did not learn anything from the traumatic political control of justice that came to exercise Fujimori and Montesinos during the nineties, then we would not, the President Alan Garcia and his family were victims of the tight control exercised over Fujimori and Montesinos justice from the coup of April 5 1992, by refusing the judiciary to receive a writ of habeas corpus that his wife and his lawyer tried to present in favor of it.
Politics is the realm of the possible, not desirable and therefore the prevailing unfortunately often not the principles but interests. If APRA is going to continue to co-opt or control resulting partially rendidor justice is going to keep trying whenever you have the power or opportunity. Consequently, it hardly likely to self-control advocates believe that the solution is external to the parties, that is, that the imposition of drastic legal or political sanctions or referral of serious consequences of such cost is political, electoral and APRA social or any other party, in its cost-benefit balance, are too costly patronage practices in the justice system.
one hand, the justice system should consider drastic sanctions against judges and prosecutors with proven links, direct or indirect- con los partidos políticos, como la destitución por parte del Consejo Nacional de la Magistratura, bajo la premisa que ello afecta un pilar fundamental de la impartición de justicia en todo Estado de Derecho como la independencia; para tal efecto, un conjunto de indicios probatorios debería ser, en estos casos, suficiente.
En el ámbito político, las fuerzas políticas con representación en el Parlamento deberían imponer sanciones drásticas contra aquellos que incurran en estas vedadas prácticas en la justicia, como la inhabilitación para ocupar cualquier puesto público hasta por diez años (que es lo que contempla la Constitución Peruvian). It is true that these sanctions will depend on-both-of the negotiation between the various parliamentary groups, making it very uncertain, however, the emergence of another party that arises fulfill the role of counterweight to APRA and denounce their interference in justice, it could contribute.
Finally, in the city area is the responsibility of investigating and reporting facts of this co-optation and partial control of justice, first, through independent and investigative journalism on the other hand, through civil society organizations including NGOs, universities and professional schools, con la permanente fiscalización de los procesos de selección de magistrados y seguimiento de las decisiones judiciales y fiscales, que pueden arrojar indicios de estas vedadas prácticas clientelares.
En síntesis, el balance del equipo de Justicia Viva del Instituto de Defensa Legal (IDL), es que el Presidente Alan García nos dejará en julio del 2011 una justicia menos independiente del poder político de la que recibió. Diversos indicios probatorios, casos de corrupción no sancionados (caso “petroaudios”), la injerencia partidaria en procesos de selección de magistrados y el cambio de criterios jurisprudenciales en casos “sensibles” Time to power (as with "El Fronton" or human rights cases before the National Criminal Court), lead us to that conclusion. No doubt this is a serious setback in strengthening the rule of law in our country, one of the pillars should be judicial independence. We also believe that this is one of the powerful reasons why corruption is rampant in this Government.
This is not to imply that during the previous government of Alejandro Toledo was a pristine judicial independence, there were also attempts of political interference in the justice (as the case of supreme vocal Silva Vallejo, who was fired for attending the president's house when I was trying a case involving the Head of State), but party-whether from weakness or conviction, the fact is that important steps were taken to strengthen judicial independence and the punishment of some attempts at corruption and political interference, show why this is, amongst others, the Constitutional Court in a few years earned the respect of the legal community with its rulings, the National Criminal Court or the judicial system sub- corruption. In contrast, in these three areas has been, during the Garcia administration, notable setbacks.
On the other hand, it is clear that the justice system continues to show significant progress, or the present government or the previous one-, first, against the pressure, interference and corruption against the powers factual, both legal and illegal, on the other hand, speeding up the solution and the large caseload that the judiciary continues to accumulate.
APRA If you want to correct something that second poor performance in terms of justice, you should try at least, in his final year in office, help the Parliament elects two independent lawyers and great career at TC (to retrieve the legitimacy rundown in recent years), let up and attack-by Defense Minister Rafael Rey and Vice President Luis Giampietri, prosecutors and judges who are investigating and prosecuting cases of human rights violations, let the new CNM appoint new judges and prosecutors free from partisan pressures, among other measures in a similar direction. ----------------------------------------------
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[1] The survey found that 95% Datum of respondents favored the intervention of the Judicial Support while 89% showed public support. In: Lovatón Palacios, David, Changes in the justice system and civil society in Peru (1990-2002), Report of Peru, In: Pásara. Luis (et al.), Justice and civil society, the role of civil society in judicial reform: case studies in Argentina, Chile, Colombia and Peru, CEJA, Buenos Aires, 2003, p. 358.
[2] Lovatón Palacios, David, Changes in the justice system and civil society in Peru (1990-2002), Report of Peru, In: op. Cit., P. 357.
[3] Journal "El Comercio" of July 19, 2010, p. a6.
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