|Between Law and Politics: The Continuing Struggle Against Impunity in Uruguay|
|Written by Joshua Frens-String|
|Wednesday, 07 January 2009 06:39|
Uruguay and the Ley de Caducidad
The popular campaign to annul an impunity law that has protected many Uruguayan officials from prosecution for human rights abuses committed over two decades ago continues even as a hotly contested presidential election has begun to dominate political discussion in the small Southern Cone country.
The controversial Ley de Caducidad, or expiry law, had, until 2005, prevented the investigation of members of the Uruguayan armed forces and state police for assassinations and forced disappearances, among other crimes, committed during 12 years of dictatorial rule (1973-1984). However, with the national election in 2005 of Frente Amplio, Uruguay's broad front left-of-center coalition party, special provisions granted to the Executive branch under the law to conduct investigations against state officials for human rights violations were exercised for the first time, leading to the exemption of nearly 50 cases from their prior position of impunity. To this point, the majority of such cases have involved Uruguayan military officials who committed their crimes outside of national territory through the coordinated operations of the region's military governments in the mid 1970s as part of the now infamous Plan Condor.
However, as new claims continue to be brought forward, the controversial 1986 law remains on the books and has become a dangerous political hurdle with questionable legal merit according to many human rights activists and legal scholars who are seeking to annul the impunity law through a national plebiscite in the October 2009 elections.
The Coordinadora Nacional and the Popular Campaign
Less than one month after the 22nd anniversary of the Ley de Caducidad's enactment, labor activists, students, and human rights groups active in the campaign through the Coordinadora Nacional por la Nulidad de la Ley de Caducidad have nearly reached 200,000 of the 254,000 voter signatures needed to place the impunity law before voters next October. And while many Uruguayans head to coastal beach towns to vacation during the month of January, movement organizers plan to be there as well in an attempt to collect the remaining 50,000 plus signatures by the late April deadline. At the current rate, some activists claim they will surpass 300,000 adherents by that time.
However, even many active in the current campaign admit that there have been numerous obstacles in mobilizing enthusiastic support for what is the second popular attempt to annul the impunity law. The first effort came in the years immediately following the Ley de Caducidad's approval, but after a well-organized campaign and months of collecting signatures, the initiative failed in a close national referendum in 1989.
Today, some opposed to the annulment of the law argue that the actions of Frente Amplio president, Dr. Tabaré Vázquez, have already made void the essential character of the Ley de Caducidad. According to former Vice President, Gonzalo Aguirre, also one of the drafters of the 1986 law, the norm "has already been overturned" by the Vázquez administration as "they (Frente Amplio) have thrown into jail everyone whom they have desired." The statements of the former Vice President and opposition politician came after the Executive branch excluded yet another case, that of veterinary student, Ramón Peré, who was killed on July 6, 1973 by state officials during the general strike which followed the coup d'état of June 27.
For others, however, the Vázquez government's willingness to remove certain cases from legal shelter has not gone far enough. Vázquez himself has consistently opposed any move to annul the law during his four years as president, and many factions of the Frente Amplio coalition have yet to participate actively in the collection of signatures. In a country where the human rights movement has traditionally lacked independence from political parties, and particularly from the Frente Amplio, the lack of participation of organized political factions has hindered mobilization around the issue.
According to Oscar López Goldaracena, one of the principal lawyer's for the Coordinadora Nacional, this hesitancy can be explained by the uncertain state of the initiative's future.
"If a political faction commits itself to the campaign and then the result is unfavorable, it is going to pay the political costs," remarked López Goldaracena in an interview with Brecha in September. "The issue today is that Frente Amplio does not have all its batteries charged, but the battery charger lies within the grassroots."
Frente Amplio, Partisan Politics, and Human Rights
Given this dynamic, it is likely that in the coming months the campaign will gain new political relevance as delegates to the Frente Amplio party convention voted to include the overturning of the Ley de Caducidad as part of their party platform in early December. Additionally, in the same convention, former Tupamaro guerrilla, Senator José Mujica, was chosen as the preferred presidential candidate by party leaders. While party members will not vote on their own choice for the coalition's nomination until June, Mujica--one of the few national political figures to have signed in favor of the national plebiscite on the Ley de Caducidad to this point--seems to be the favorite to lead the Frente to the polls in October.
Mujica's decision to sign came with great surprise last August. Among his at times confused reasoning for finally supporting the initiative after prior statements opposing such a measure, Mujica noted that the Frente Amplio convention would likely mandate its legislators to annul the law in a potential second Frente Amplio government. Nevertheless, at the same time, Mujica added that, "those (military and police officials) who assume moral and legal responsibility for their actions should have their prison sentences commuted," a point surely at odds with the beliefs of many human rights activists.
Nevertheless, a second Frente Amplio government is by no means assured. Recent polls show that the coalition's two most-favored candidates, Mujica and former Finance Minister Danilo Astori, are running nearly even with potential Blanco Party nominees. And in the event that neither party wins a simple majority in the first round of voting, a second round could see the conservative Colorado Party throwing its support behind the Blanco candidate.
Alternative Means of Annulment
Such looming doubts have led activists and their legal team to pursue other potential avenues for annulment of the controversial law, including continued questioning of its constitutional nature before the Uruguayan Supreme Court. Many legal experts, including those from the Institute for Legal and Social Studies in Uruguay (IELSUR) who have organized much of the legal work around human rights, have long argued that the law was unconstitutional from the moment of its approval. By granting the Executive branch the power to decide which human rights claims can be brought before the courts and which remain sheltered by the 1986 law, these lawyers have argued that the separation of powers between the Executive and Judicial branches, as outlined in the Uruguayan constitution, has repeatedly been violated.
Prosecutor Mirtha Guianze is the most recent attorney to have petitioned the Supreme Court, using this argument, among others, in the case of Nibia Sabalsagaray, a Communist Party activist suspected of being assassinated in 1974 by military officials. The case of Sabalsgarary was brought before the high court in October and remains perhaps the only open case that does not fall under a 1988 ruling in which the Supreme Court came out in favor of the law's constitutionality in a 3 to 2 decision.
If the court accepts the argument of Guianze this time around, a ruling could be made before the potential October plebiscite. However, even in the event that the court rules that the impunity law is indeed unconstitutional, parliament would still be required to annul the law in order that already-ruled-upon claims are reconsidered by the judiciary.
With the addition of the issue in the Frente Amplio platform, the new posturing of Mujica, and fervent criticism of the law by the Inter-American Human Rights Commission to which Uruguay is a member, none of the possible methods for annulling the law seem out of the realm of possibility, particularly if the Frente retains the presidency and its parliamentary majorities.
Steps toward Linking Truth and Justice: Opening Archives and Issuing Reparations
Furthermore, other legislative actions of recent months which have sought to join together the long-absent human rights mantras of "truth" and "justice" in Uruguay have given hope to human rights activists that an era of impunity may soon come to an end. A freedom of information law passed in October now provides the legal framework for public access to a great quantity of once-restricted state information and documents. While restrictions apply to information that could affect public security, national defense, and individual privacy, the new law stipulates that "none of the reservations mentioned refer to violations of human rights or are relevant to investigate, prevent, or avoid violations" of this sort.
And additionally, in recent days it was announced that a reparations bill affecting those physically or psychologically injured by the state from 1973 to 1985 will enter parliament this March. The bill, which would also officially declare the state as "the responsible party for crimes against humanity and state terrorism," would grant different levels and various forms of economic reparation to those who had been detained, persecuted, or forced into exile for their political activity, along with the families of those who had been exiled, detained, or disappeared.
According to López Goldaracena, who was also in charge of drafting the reparations bill, this advance walks hand-in-hand with the campaign to annul the Ley de Caducidad.
The notion of reparations "implies that the State guarantees to not repeat (human rights violations)," López Goldaracena recently remarked in a Sept 12 interview with Brecha, adding, "the way of carrying this out is to remove the legal obstacles related to crimes against humanity because it is the only means of assuring that those events do not occur again."
Joshua Frens-String is a freelance writer and former Fulbright research scholar to Uruguay.