En los últimos años, se ha presentado en México un fenómeno social muy preocupante. En muchas de las regiones azotadas por la violencia del crimen organizado, las poblaciones se han unido para crear las llamadas “policías comunitarias”—grupos de autodefensa civil integrados por vecinos de las mismas comunidades que se dedican a realizar las labores de vigilancia y combate al crimen organizado que las autoridades responsables han dejado de hacer. Éste fenómeno se ha presentado principalmente en los estados de Michoacán, Guerrero, Oaxaca y Morelos y ha provocado más de un enfrentamiento con los gobiernos estatales y municipales, así como con los cuerpos de policía oficiales.
El general Óscar Naranjo Trujillo, colombiano que funge como asesor externo de Enrique Peña Nieto para asuntos de seguridad, ha dicho últimamente que el Estado debe asegurar el monopolio de la aplicación de la justicia y el monopolio legítimo del uso de la fuerza. Según él, “cuando a una autodefensa se le empieza a llamar policía, se produce una distorsión que realmente, lejos de invocar el deber ser, destruye el deber ser y es imaginario.”
Indudablemente, en condiciones normales, el Estado es el único que debe ostentar el monopolio del uso de la fuerza y la aplicación de la justicia. Eso ocurre en cualquier país medianamente civilizado. Sin embargo, el problema en México es mucho más complejo que eso.
The last couple of weeks have shown that terrorism, or the threat of it, is not just something we read about in other parts of the world. Occasionally, we recall the events of 9-11, but soon it will be twelve years since that horrible day. However, the tragic ending of the Boston Marathon reminded us in vivid terms how vulnerable a free and open society is to the threat of terrorism, whether domestic or imported. Hence, the balance between freedom to exercise our rights in society and the need for security and safety from harm is once again at the center of public policy.
A few days after the two Boston bombers were apprehended (with one killed in the process), Canadian authorities arrested two alleged plotters in Montreal and Toronto—supposedly linked to an Al Qaeda cell in Iran—and accused them of planning to derail a Via Rail passenger train with an explosive device. Although the Boston bombings might appear, for the moment, to have been the work of a domestic “lone wolf” operation, the Canadian incident might have a direct international link. Meanwhile, the Canadian Parliament adopted a law giving authorities greater preventive powers in dealing with future threats of terrorism.
There is no doubt that we live in a dangerous and unpredictable world where different kinds of fanaticism continue to grow and lead to actions aimed at disrupting lives and destabilizing political regimes. Let us be clear: successive governments in North America have never been soft on terrorism, but our citizenry is especially strong on freedom. How can we ensure that this remains the course of action on both sides of the border? The answer to this question has repercussions on the economic, social and political life of North America.
Former Guatemalan President Efraín Ríos Montt will face a second genocide trial on the civil war-era Dos Erres massacre after Judge Carol Patricia Flores Blanco issued her ruling last week.
After a marathon hearing that lasted more than 10 hours, a packed court saw relatives of civil war victims as well as human rights activists celebrate the decision. Under international pressure to resolve excesses of the 36-year civil war, Guatemala will become the first country in Latin America to place a former president on trial for genocide.
In January, Judge Blanco ruled there was a case to answer for Ríos Montt for crimes against humanity and the genocide of Maya-Ixil during Guatemala’s civil war in the Nebaj region.
Challenges to the Ministerio Público prosecutors’ claims and evidence have thus far kept the trial from beginning; it was supposed to get underway in March.
El Salvador has undergone various political events in the past couple of months. Political drama and institutional bickering have been present in daily news. For one, the legislative and municipal elections that took place this past March were fair and clean, while the same cannot be said about other countries in the region—namely Nicaragua. The outcome of El Salvador’s election results was bleak for the ruling Frente Farabundo Martí para la Liberación Nacional (Farabundo Martí Liberation Front, or FMLN) party; FMLN’s largest loss was in the country’s most populous and important municipalities.
Second, the main opposition party, Alianza Republicana Nacionalista (Nationalist Republican Alliance, or ARENA), simply recuperated what they had historically obtained in legislative elections before the defection of 12 of their deputies in 2009. ARENA’s main win was in taking the larger, emblematic municipalities from the FMLN which are also founding shareholders of Alba Petroleos, the gasoline-importing Venezuelan joint venture with the FMLN. With these results the citizens of El Salvador confirm the country’s preference for the two larger parties.
Changes in electoral legislation allowing for independent candidates proved useless: the most voted independent candidate only obtained a little over 1,000 votes. El Salvador’s strong political party system has allowed, for the most part, defining medium-term policy agendas and a certain degree of accountability toward voters. This is unlike Guatemala, where political parties come and go—creating a real problem for the democratic process.
Unfortunately, the outgoing legislature made some nefarious decisions prior to their term coming to an end on April 30. The most troubling decision was made regarding the anticipated election of Supreme Court magistrates and specifically some magistrates in the Constitutional Tribunal. In essence, the previous President of the Supreme Court—who also heads the Constitutional Tribunal—was removed from his office by the legislature before his term was over. The reason behind the shuffle presumably responded to some decisions that the previous Tribunal had made regarding electoral reform and political parties. Civil society organizations denounced the decision to no avail.
A San José court rejected most of an appeal by former Costa Rican President Rafael Calderón last week, but the court ruled to lighten his charges and overturned his five-year jail sentence.
Calderón, age 62, was convicted in October 2009 of two charges of embezzlement for helping divert millions of dollars from a Finnish government loan to Costa Rica’s social security system in 2004, after his presidency.
Last Wednesday, the appeals court reduced the ruling to a single embezzlement charge with three years in prison.
However, Calderón won’t go behind bars.
Under Costa Rican law, a person who is handed a sentence of three years or less, and whose record is otherwise clean, can walk.
In Calderón’s case, the judges said he must refrain from breaking the law for five years or else he could lose this get-out-of-jail card.
Costa Rica’s justice system confirmed that a former president took up to $500,000 in kickbacks of public funds meant to be used to purchase medical equipment, but set him free. This drew a muted but “respectful” reaction in a brief statement from the Public Ministry that took him down, and it bewildered the citizens of this country of about 4.5 million.
Calderón, who served as president from 1990-1994, maintains he’s innocent, claiming that those funds were legitimate payment for legal services rendered while he wasn’t in office.
The 2009 guilty verdict was a huge blow to Calderón and his center-right Social Christian Unity Party. He was all set to run for president on the party’s ticket that year until the day the Supreme Court declared him an embezzler.
The court sentenced him to five years in prison but Calderón stayed out of jail pending appeals—another interesting facet of Costa Rican law.
Calderón vowed to continue challenging the accusations. After the decision last week he said he plans to bring the case to the Inter-American Human Rights Court (the Costa Rica-based judicial arm of the Organization of American States).
The ruling came just two weeks after a conviction of fellow ex-president Miguel Angel Rodríguez, also of the Social Christian Unity Party, who was sentenced to five years in prison for taking bribes from French mobile gear maker Alcatel.
Rodríguez, president from 1998 to 2002, said he would appeal the ruling but no date has been set for hearings. Rodríguez was in office at the time that the crime was perpetrated. His onetime electorate will be watching closely to see what kind of decision the appeals court makes the next time around.
*Alex Leff is a contributing blogger to AmericasQuarterly.org based in San José, Costa Rica, and is a local correspondent for Reuters and GlobalPost.
Sandra Torres, the recent ex-wife of Guatemalan President Álvaro Colom, filed papers yesterday with the Registro de Ciudadanos at the Tribunal Supremo Electoral in Guatemala City to become a presidential candidate in the upcoming election. Accompanied by Roberto Díaz-Durán, her aspiring vice-presidential candidate and the former president of port operator Nacional Santo Tomás de Castilla, the filing put an end to weeks of speculation that the former first lady would run for office after filing for divorce from the president this past March. If approved, Torres and Díaz-Durán will be the candidates for the Unidad Nacional de la Esperanza (UNE) and Gran Alianza Nacional (Gana) political parties, which have formed an alliance to back the two candidates in the September 11 election.
Torres filed for divorce from President Colom to sidestep a law in the country’s constitution prohibiting the president’s relatives from running for the nation’s highest office. Colom is also ineligible to run for re-election. Despite legal approval of the divorce in April, some have called the divorce fraudulent and a blatant violation of the constitution. On Friday, a legal organization, Alternativa Renovadora de Abogados y Notarios, filed a motion with the civil tribunal court asking for a reevaluation of the approval of the divorce in light of the allegations. The motion also asks the court to decide if the candidacy filing should be considered fraudulent and the approval annulled.
In the meantime, the Tribunal Supremo Electoral will now review Torres’ candidacy papers to ensure they meet all the necessary requirements before officially registering Torres and Díaz-Durán as candidates. It is uncertain how last week’s legal filing may affect the proceedings.
Should Torres be approved by the Tribunal, her main opponent would be former army general Otto Pérez Molina, of the right-wing Partido Patriota. Polls published this Monday by newspaper Siglo 21 show that Molina holds a 16+ point lead over Torres among likely voters in September's election.
Uruguay’s Senate voted yesterday to annul the Ley de Caducidad, or Expiry Law, which since 1986 had granted military officers immunity from prosecution for crimes against humanity committed during the country’s military dictatorship from 1973 to 1985. The vote effectively overrules two prior national referendums in 1989 and 2009, which had upheld the Expiry Law, and opens the door to the possible prosecution of former military officials. The measure keeps intact amnesty for crimes committed during the same period by left-wing militants.
The vote fulfills a major demand of the left-wing members of the Frente Amplio (FA) governing coalition and complies with a 2009 Uruguayan Supreme Court ruling that found the Expiry Law unconstitutional. The measure faced opposition from right wing political party leaders, retired military officials, and even some members of FA like retired Colonel Jose Carlos Araujo, who says repealing the law despite two referendums shows a lack of “respect [for] the decisions of the people.”
In 2003, an independent peace commission found that 175 political opponents were killed during the 12-year dictatorship, including 26 in clandestine torture centers. Only about a dozen officials have been prosecuted for those killings. The repeal passed by a 16-15 vote after a 12-hour debate. It is backed by President José Mujica and will now move to the Uruguay’s lower house for amendments and a vote, which could come as soon as May 20.
We hear it often: the rule of law is essential for investment. For over a decade, a legion of organizations and scholars--from the World Bank to Douglass North--have argued that if countries really want to develop they need to develop an independent, impartial, pro-market system for the application of laws and their adjudication. And those that don’t establish the rule of law will be ignored by international investors and the global market.
If only it were true.
The relationship isn’t that easy or clear. There are plenty of examples of countries and economies that have prospered without the effective rule of law; ones that haven’t even though they may have it; and plenty of companies that are willing to invest even in abysmal or deteriorating conditions.
It may be heretical to say it, but we have oversold the rule of law. Truth is: it matters most for small and medium enterprises. For large investors, national economies and specific economic sectors, it matters far less than we’ve convinced ourselves.
Let me highlight some of the overblown assumptions we’ve made about the rule of law and economic growth. Only by understanding them can we really recognize, in a more nuanced and targeted way, the limited, though important, way that the rule of law is important and for whom.
Myth 1: Big Investors Need the Rule of Law
In a famous speech, then-Secretary of State Colin Powell made an argument for countries to reform their judicial systems by stating that “capital is a coward. It flees from corruption, bad policies, conflict and unpredictability.” Left out of this was the bald truth that big investors can afford to invest in less safe conditions nationally because they come with their own protection: arbitration agreements. Many of the contracts negotiated in private equity, vendor agreements, and even fixed investments establish that in the event of a contract dispute both parties will submit to international arbitration--often under the Inter-American Convention on International Commercial Arbitration (1975) and the UNICITRAL Model Law on International Commercial Arbitration (1985)--with arbitration occurring outside the country.
What this does is effectively take the issue outside the country’s system for the rule of law, obviating the sweeping reform of the judicial system, an overhaul of commercial codes, and the creation of an effective, transparent independent system for the naming and oversight of justice officials necessary for the rule of law.
Sure, this international arbitration is great for investors who don’t have to wait for the lengthy, uncertain process of wholesale reform of a country’s legal and judicial system. And it’s a boon to policymakers who can establish an effective, quick pathway to attract investors. But it does little for pressuring the system as a whole for reform and reduces the advocacy and urgency for broader reform. Yes, other disputes will arise that do not rise to the level of arbitration and that will need to be dealt with in the local courts, even for the big investors. This can include matters of resolution of bankruptcy claims, contract violation, arbitrary regulatory changes, and intellectual property violation. To be sure, the threat of these complications--often costly--is a disincentive for investment. But, for many of the largest investors looking to sink their funds into a lucrative market, these are only one of the calculations among many that they make, which brings me to the next point.
For decades, impunity has reined in
Since the Peace Accords brought
Not only have Guatemalan voters lost faith in democratic government’s ability to bring economic development and alleviate massive poverty, but vast swaths of the citizenry have come to believe that the laws simply do not apply to the powerful. As the Latin American Public Opinion Project (LAPOP) has shown, perceptions of corruption and insecurity negatively affect democratic values in Guatemala. Compared with other Latin American countries, it is unsurprising that