Democracy and institutionality

Politics

Concerning the kidnapping investigations

Economy

The privatization of ANTEL

DEMOCRACY AND INSTITUTIONALITY

The signing of the peace accords not only brought to an end twelve years of civil war and began to remove the military from direct military activity, their signing also laid the foundation for beginning the process of social and political institutionalization, without which democracy could not become a dream rooted in reality. At bottom, it was the conviction—sustained by diverse historical experiences and distinctive theoretical premises—that a democratic order cannot become a reality and maintain itself without a network of institutions which serve to support it and to implement its rules and values in a practical way. Democracy is certainly an ideal: it points toward a fundamental social and political order in which the representative nature of civil society and citizen rights might enter fully into effect, admitting no exclusions of any kind.

But democracy is not only an ideal: it is also a configuration of guarantees and procedures oriented not only toward making political representation and respect for citizen rights a reality, but a configuration which limits abuse of political power—above all it limits those with authoritarian pretensions who hold power in government leadership positions.

Democracy as an ideal and as a configuration of guarantees and procedures are one and the same thing, given that the latter is inspired by the former, and, at the same time, confirm both as a practical reality in a social and political environment. From time to time in our country, the political class has forgotten that democracy has two unequivocal dimensions, and this has led to the insistence upon the idea of an empty democracy reduced to the mere exercise of elections at periodic intervals. The worst of this has been the absence of a truly serious reflection on the institutional requirements of democracy—that is to say, on the material structures of support for the guarantees and procedures which constitute a valid democratic political regime. Our political class believes that its existence alone is sufficient, with its innumerable vices and few virtues in such a way that in order for a democratic order to come into existence in El Salvador, it has not been able to come to the consciousness that without adequate institutional support, its own vices impose themselves upon its few virtues.

The Salvadoran political class even seems to feel that institutional weakness which characterizes our country at the present time is for the best. It is not the case that it feels good permitted as it is to exercise all of its potentialities and creativity, but because it is given ample ground for moving about as it pleases without having to answer to any organization responsible for maintaining norms for its recklessness, folly and irresponsible actions. On thing is undeniable: institutions, when they are well founded, oblige individuals and groups to comply with their normative demands. The lack of necessary institutions or their existence in a weakened state facilitates the exercise of overly broad discretion; that is to say, the taking of decisions and the revocation of decisions according to the interests of groups which exercise political power. Beginning from this premise, then, the principal enemies of institutionalization are the politicians who see in that very institutionalized state of affairs a serious threat to what they consider their unlimited power. The matter at hand is precisely the teaching of politicians that their power is not unlimited; the object is to limit that power, and there is nothing better with which to accomplish this than a firmly constituted institutional framework.

A sine qua non for moving forward the implementation of democracy in El Salvador consists, then, in critically evaluating the configuration of institutions in existence at the current time. Among these, the majority were constituted before the beginning of the process of democratization at the beginning of the 1980’s. This signifies at least two things: the first is that they are institutions with highly consolidated work styles and practices, which makes their transformation difficult. The second implication is that they were created in the context of a process of social and economic modernization, the fount of which was the military structure—that is to say, they created themselves in a political context which was marked by authoritarianism. These two aspects are the occasion for the difficulties which arise from the reconversion towards democracy of institutions created with an eye to sustaining an authoritarian political model. The principal difficulty is that authoritarianism took them over, leaving room for the creation of institutional niches in which the faithful, and protected servant of the military president in office placed his people, providing his own personal entourage with protection, at the same time. Things being as they are, high-level functionaries understood that what they were dealing with was that some were becoming as rich as possible at the cost of public goods; and with this, corruption became the norm in the administration of the state.

What is being dealt with here is a dark panorama indeed. The serious side of the matter is that this conception of institutions has not been eliminated from the present reality of El Salvador. Important institutions in the process leading to the democratization of the country, such as the Controllers’ Office of the Republic, are even now still considered to be the inheritance which particular political parties can bestow. These parties demand that their absolute right to these inheritances be recognized—in clear contradiction with the process of democratization. The National Reconciliation Party (PCN, for its initials in Spanish), under whose mandate during the decade of the 1960’s and 1970’s, authoritarianism was incubated in state institutions, continues to rubberstamp this institutional schema: the Controllers’ Office belongs to that party: that is to say, it is a private niche for a member of the party in office to preside over ; that is to say, one who can negotiate quotas of power with political and economic chieftains, who can bring his or her family members and friends into key positions and, above all, who can accumulate a significant bank account until his or her other colleagues come up for a turn at the office.

On the other hand, new institutions created expressly with the objective of showing the way towards the democratization of the country—although they do not carry with them the ossified structures of the older institutions—run the risk of becoming irrelevant, owing as much to the inexperience of their members as to the efforts of those who long for authoritarianism. The most palpable example of this is the case of the Ombudsman’s Office for the Defense of Human Rights, which, with its new ombudsman —named on the basis of absurd criteria—, seems to be condemned to a state of the most pathetic irrelevance.

It will not be an easy task to insert the older institutions into the context of the process of democratization, nor will it be easy to redirect the newer institutions using the same premise. This does not constitute an obstacle to working decisively and, from this point on, in both directions, because it is only in this way that going forward in the institutional process can be empowered sufficiently to so that it might achieve success.

CONCERNING THE KIDNAPPING INVESTIGATIONS

The investigations surrounding the kidnapping cases have not ceased to be polemical. The first controversy was generated when the police investigations implicated some of the members of the Communist Party in attempts against prominent businessmen or their families. It was quite easy, at that point in time, to predict that the revelations concerning those findings would be politicized in favor of the untiring detractors of the left who would see in the act a new and particularly potent opportunity to blacken the name of the ex guerrilla, which would, on the one hand, remain vulnerable to new attacks and, on the other, make it impossible for it to take a public position against the impunity which has reigned constant after the declaration of the amnesty (see Proceso, 749 and 780).

Currently, the investigations concerning the kidnappings have taking on a more legal coloring. The judges and prosecutors handling the case continue to hold Mr. Shafick Handal in their sights. Mr. Handal is Legislative Assembly Deputy for the FMLN and one of that party’s most outstanding personalities. The investigations allege that Mr. Handal participated in a meeting, at the beginning of the 1990’s, in which the kidnapping of businessman Eduardo Salume was planned. So then, with the objective of acquiring [knowledge of] elements which might permit the clarifying of such acts, the Court of First Instruction of Santa Tecla, which has jurisdiction in the case, and Mr. Astor Escalante, prosecuting attorney for the National Association for Private Enterprise (ANEP, for its initials in Spanish), decided to send a written interrogatory to Mr. Joaquin Villalobos, ex leader of the FMLN and former leader of the Democratic Party (PD, for its initials in Spanish).

The fact that Mr. Villalobos currently resides in England made it necessary to send what is known as an "international supplication" in which the government of El Salvador, through the Supreme Court, solicits an English tribunal to carry out the pertinent interrogatory. There would probably have been no problem caused by the interrogatory were it not for the fact that in several of its 43 questions, reference is made to the FMLN deputy Mr. Shafick Handal. Owing to this fact, Mr. Eduardo Tenorio, President of the Supreme Court (CSJ, for its initials in Spanish), ordered the court to exclude the name of Mr. Handal from the questionnaire, arguing that Mr. Handal enjoys immunity to his status as legislator and this presents an impediment to involving him in [investigations of] criminal acts without [the presentation of] a previous petition arising from a pre-trial hearing in the Legislative Assembly.

Two months have now passed since Mr. Tenorio’s petition caused the second great polemic surrounding the investigations of the kidnappings. During the whole of this period, the communications media have not ceased to throw up heavy criticisms against the president of the judicial body, even coming to the point of accusing him of defending the FMLN deputy. The court and the prosecuting attorney for ANEP rejected Mr. Tenorio’s order, arguing that the mention of Mr. Shafick Handal in the interrogatory does not signify absolutely that he is being directly accused of a crime; moreover, they accused Mr. Tenorio of delaying the investigations and of violating the Constitution of the Republic by intervening against the independence of the judges whose defense is precisely their independence.

From the beginning, the polemic between the CSJ and the court and prosecuting attorneys, the Attorney General’s Office (FGR, for its initials in Spanish), intervened when it indicated that the president of the judicial body was mistaken in ordering the modification of the content of the questionnaire. But the most amazing aspect of this dispute is that even the Legislative Assembly has intervened in it by forming a "commission" aimed at investigating the constitutionality of the court’s decision. The intervention of the Legislative Assembly in this controversy, the terms of which are yet to be clarified, only serves to complicate the problem even more, of course. It now appears that this is the second time—since the struggle which embroiled the two powers over the case of Mr. Eduardo Colindres—in which, under the presidency of Mr. Eduardo Tenorio, the CSJ has had to involve itself in a confrontation with the legislative body.

So now, what can be said of all of these obstacles to the kidnapping investigations? In the first place, one thing should be made clear: according to the lawyers of the José Simeón Cañas Central American University (UCA, for its initials in Spanish), the independence [or, separation] of powers stipulated in the constitution establishes the obligation that neither the FGR nor the Legislative Assembly can intervene in a decision by the CSJ. That these bodies intend to take part in this matter is nothing less than absurd, simply because they have no authority to do so.

In the second place, it should be pointed out that Mr. Tenorio’s criticisms are not totally without foundation. It is not scientifically possible to know—as rumor would have it—if the president of the CSJ has personal interests in the FMLN and for that reason he is obliged to "defend" Mr. Handal. It is, however, possible to affirm that in the same manner in which the Constitution of the Republic must defend the independence [or, separation] of the three powers of the state, it must also defend the independence of the judges’ activities. The court’s petition to omit Mr. Handal’s name from the questionnaire is, therefore, inadequate.

In third place, it must be said that the posture taken by the left with regard to events of this nature cannot but be questionable. It turns out that instead of showing itself to favor the clarifying of the most controversial acts occurring during the war, the FMLN is disposed to forget them completely, especially when such acts as involved members of the FMLN. The opinion expressed by Mr. Facundo Guardado, General Coordinator of that party, concerning the matter confirms this premise when he stated that "the intention to bring up acts occurring during the armed conflict has no other objective than political revenge."

Given this panorama, is there any possibility that El Salvador will come to learn in a more or less legally clear manner, what happened before the signing of the peace accords? As things go, the possibility appears to be effectively remote. Businessmen, of course, are disposed to continue to the last consequences when it is a question of clarifying acts which affected them directly, but they cannot be expected struggle with equal enthusiasm to learn the truth and achieve justice when it comes to crimes committed by death squads or military people.

Political parties seem to prefer that the past not be brought up and, given that ARENA suffers already from the negative effects of its strategy of untiringly bringing up the sins of the FMLN, from now on it is possible that not even the official party will worry itself too much about what happened during the war. For the FMLN, the only political party from which might be expected a serious pronouncement against impunity and in favor of clarifying war crimes, it will be an impossible task because it would imply a political cost to that left party which it would not easily be disposed to pay.

Lastly, citizens of the country seem not to be very concerned that the truth be known and clarified once and for all. It is precisely in people’s attitudes of sloth and conformity that impunity flourishes. Judicial processes become embroiled in politicization, immaturity and all the rest of the vices of politicians and functionaries who are little disposed to intervene in any question whatsoever—and this before the unbelieving eyes of the Salvadoran people. So then, is anyone really interested in learning the truth of what happened in El Salvador during the last decade?

THE PRIVATIZATION OF ANTEL

Two years after it was announced, the privatization of the National Telecommunications Administration (ANTEL, for its initials in Spanish) was finalized between 17 and 24 of July this year, after confronting delays coming initially from labor opposition and, afterwards, as a result of a change in the correlation of forces in the Legislative Assembly after July, 1997. So it is that, on July 17, 51%of ANTEL was sold to the state wireless telephone company (INTEL) to the Telephone Company of Spain for a total of U.S. $41,009,900; while on July 24, 51% of the telephone company was sold to France Telecom for a total of U.S. $275,111,000 for a combined total of U.S. $316,120,900.

From the very beginning of the discussion concerning the privatization of ANTEL the government has attempting to draw attention to the positive qualities in terms of generation of jobs in the telecommunications sector, increase in salaries and reduction of telephone bills. Nevertheless, governmental optimism has denied negative aspects such as the role of privatization in state enterprises in the consolidation of big transnational enterprises, the loss of potential income for the state and the threat of immoderate increases in telephone charges. This is especially true in El Salvador where the Telephone Company of Spain—in its eagerness to acquire INTEL—came to offer an additional 250% to the established base price where, moreover, there is evidence that ANTEL possessed important bank deposits and where charges for electrical energy were increased at the very moment of the privatization of its distribution, although afterwards, and paradoxically, they were subsidized by the state.

Although policies of privatization are being implemented throughout the world, it does not escape common sense analysis that these imply that the state renounce the obtaining by means of the operation of public services or any other state enterprise.

This is a half-truth because it downplays the importance of social efficiency in favor of purely economic efficiency and also because it assumes that the state will never be able efficiently to operate an enterprise, an argument which is clearly a priori. In what follows, some interesting data is presented concerning the privatization of ANTEL; this data suggests that it was a result of follow-up in a political and economic way and not of diagnosis and analysis of the options available for the reorganization of the state. Additionally, some of the consequences relating to the charges and income of the state will be examined.

One of the arguments with which privatization has been justified has been that public enterprises operate on the basis of chronic losses which are alleviated by the state and which apply greater pressure on the fiscal deficit and on inflation. Nevertheless, in practice, this posture has been questioned by reports produced by the Ministry of the Treasury as well as by the presidents of the Central Reserve Bank and ANTEL, who affirmed that in 1996 ANTEL possessed deposits of close to 1,025 million colones (see Proceso, 713). Almost simultaneously, a program of tariff readjustment was implemented which implied raising national tariffs by 200%, reducing international tariffs to the United States and leaving the tariffs for the Central American region unchanged (Proceso, 718). This would have indicated an increase in the level of the utilities of ANTEL and in the total amount of its deposits.

Even so, the privatization of the telecommunications continued advancing and agreement was reached, after a sterile debate in the Legislative Assembly, to sell 51% of the shares to the international strategic colleague and the rest to the telecommunications workers, added to the service and investors in general, just as the government proposed. It might be pointed out at this point that the revision of the bills on telecommunications delayed the sale of the ANTEL shares, but finally did not produce any change of any importance in the spirit and implications of the privatization.

In the near future important increases in telephone charges might be expected, such as has happened effectively in the case of electrical energy, the distribution of which has also been recently privatized and which has generated abundant complaints because of excessive charges, including complaints from the municipalities. Faced with this, the government has been obliged to subsidize the tariffs in order to avoid increases in the billing, a situation which favors the consumers, but also the private distributors of the service.

In spite of the discourse of the Commission on the Modernization of the Public Sector with regard to reducing the tariffs which privatization would provoke, what is certain is that the telecommunications law itself contemplates the increases. In fact, Mr. Juan Jose Daboub, president of CTE/ANTEL, had already declared that for 1998 there would be no increase in tariffs, but that the telecommunications law would permit adjustments to allow for inflation. The functionary did not deny that in 1999 increases would be applied. Mr. Eric Casamiquela, Superintendent of Electricity and Telecommunications, for his part, declared that, beginning in the year 2003 the telecommunications law would provide for tariffs to be adjusted in accordance with the inflation rate and fluctuation in exchange rates.

Considering the fact that ANTEL has had the capacity to accumulate deposits, has implemented tariff adjustments and that the Commission for the Modernization of the Public Sector affirmed that tariffs would be reduced, increases would not be justified for these. Unfortunately, as a result of what the law permits, without doubt the charges for service will begin to increase with much greater frequency and proportion in the near future. This has been so in the case of the countries which are "pioneers" in privatization of enterprises providing basic services (England and Chile, for example), where the tariffs have been increased up to 300% and families confront heavy debts with the private companies.

With the sale of ANTEL, the state would no longer receive the considerable quantity of economic resources coming from the possible utilities operating the telephone company; nevertheless, more important still are the potential incomes which the state will not receive because it has not improved the efficiency of its operations and for having lent itself to the privatizing modalities in effect throughout the world.

On the other hand, it will receive an approximate total of 2,750 million colones, the equivalent of the line item in the 1998 budget for education and double the budget line item for health for the same year. For the moment, the future of these resources has been not defined, but it is clear that its effect will be ephemeral because it will affect, at most, the economic outcome for the year. Afterwards, the sale of ANTEL will present no macroeconomic or social repercussion of any importance.

It has become clearer and clearer that the privatization of basic services principally favors transnational enterprises, while the users and the population in general are required to submit to tariff increases and increases in the cost of the basic food basket. At the same time it is clear that privatization is ideological and that, in El Salvador, it has been adopted in no uncertain terms.