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Proceso 925
November 1, 2000
ISNN 0259-9864

INDEX

Editorial The false fears of the right in El Salvador
Society The demobilized Civil Patrol agents: a history of manipulation and uprootedness
Economy The new polemic surrounding CEL
Communications Images make a little difference
 
 
 

EDITORIAL

    Democracy and law have been much in evidence in right-wing discourse for some time now, but the trial of the two ex generals in Miami and the possibility of opening the Jesuit case have placed both in check. The simple announcement by the Attorney General to attend the UCA petition unleashed the furious forces of the right which, in so doing, exhibited the essence of its anti-democratic nature. The UCA legal action is presented as an unexpected and uncommon threat. It is interesting to observe how the very possibility of making one’s rights prevail—in this case the right to an independent, universal, credible and accessible justice system—has awakened their wrath. This right wing does not want anyone to exercise his or her rights when they are or denied or responded to with prejudice. The UCA is violating no law. Nor is it asking for any privilege. Nor is it ignorant of the existence of the amnesty law. A Supreme Court ruling upholds the UCA, which recognizes the existence of exceptions to that law and asks that its case be opened in order to investigate the intellectual authors of the massacre which occurred on its campus. The right wing’s reaction is all out of proportion; it is more emotive than rational, more subjective than objective, more motivated by ideologies and beliefs than by evidence. The right wing apparently cannot distinguish between strictly legal material and its own opinions.

    The right-wing reaction is precipitate as well as out of all proportion. It is still not clear what the next step in the process will be because the Attorney General is hastily readying himself to commit yet another new legal error. He continues through the procedures of opening the case but aided by a mistakenly interpreted legislative decree, he will present his new petition to the same Fourth Circuit Judge, alleging that the aforementioned decree establishes that the cases begun with the outdated codes ought to continue under this aegis through to the conclusion of the case. The Jesuit case is not a case with an already accomplished conclusion. The first section, in which some of the mat3rial authors of the crime are investigated, brought to trial and sentenced, is concluded and is not conducive to being re-opened. The second part, which has to do with the intellectual authors, is completely distinct and ought, therefore, to be conducted under the procedures established by the new code. It is, however, probable that the Attorney General will be able to count upon a state of affairs in which the judge will decide to reopen the case and the defense, then, will have a valid argument for annulling the part already ruled upon and thereby terminate the case under Salvadoran law. The right-wing does not, then, have to worry so much—at least, at the moment—with an Attorney General such as the current one, so concerned with favoring the accused. Simultaneously with what appears to be a movement forward, he slows down the administration of justice; simultaneously with promoting equanimity, he protects the criminals and forgets the victims; simultaneously with his use of good words promising justice, he cannot sustain his accusations when he goes before the judges. The behavior of the Attorney General’s Office illustrates the fact that its director cannot be trusted by the victims or their families.

    The right is apparently willing to accept the second phase of the Jesuit case if, at the same time, some of the crimes attributed to the FMLN are investigated—which proves how little it has engaged in the process of forgetting. Its defense is to attack the FMLN, carrying the political discussion, in this way, to the level of the two sides in combat with each other during the conflict when here it is a question of innocent victims, without anything to do with the armies which fought the war and negotiated its end. But the amnesty law makes it impossible to bring before the courts those accused of numberless human rights violations, except the public functionaries who, while they were in office, committed a crime and were then granted. This is the case of ex President Cristiani, his Minister of Defense and the ex officials of the high command of the Armed Forces, accused of being the intellectual authors of the UCA massacre. It is for this reason that this case can and ought to be brought before the courts where judges and magistrates will decide if the exception (the existence of which has already been recognized by the Supreme Court) will be complied with or not. From this, it can be seen that the opinions of President Flores and the politicians lack relevance. It is a legal question and not a political one. Their opinions are political and contrary to Salvadoran law and international law. And although it is the case that the amnesty law is a political decision, the legal dimension should not have been forgotten, and in the degree to which it is forgotten, the rights of the victims are sacrificed to the interests of the political leadership circles.

    As opposed to the ex functionaries accused in the Jesuit case, the intellectual and material authors of the crimes attributed to the FMLN do benefit from the amnesty. If it were possible to accuse them legally, it would be necessary to identify those responsible and present proofs which link them to the acts which they are accused of committing. Up until now, the right – wing has demonstrated that it has only opinions based on the counterinsurgency ideologies developed during the war and upon their own personal beliefs. The right wing lacks proof and evidence, the validity of which would hold up in court, because it never engaged in investigation. If there were proof, it would already have found a way to present accusations in the courts against the leaders of the FMLN. It hides its lack of capacity by saying that it has assumed its own pain, in an act of supreme sacrifice in the name of national reconciliation which consists in having pardoned and forgotten all. But this last point is very relative as can be seen from the recent electoral campaigns and in the daily legislative discussions, in which the right does not miss an opportunity to present recriminations against the opposition for human rights violations committed during the war. The summary execution of the mayors in the eastern region of the country is the situation for which the most proof might be brought to bear in order to sustain a legal accusation and this is because those responsible spoke of it to the Truth Commission. The proofs, then, lie in the commission report itself—a report which, on the one hand, is rejected because it also includes proofs against military personnel responsible for the assassination of the Jesuits, of Monsignor Romero and of many others.

    If the right-wing persists in accusing the FMLN, the FMLN has a way out and that is to consider the crimes attributed to its leaders to be crimes against humanity and therefore imprescriptible and, as such, are not included under the amnesty law. This is to say that in order to legally charge FMLN leaders with human rights violations and investigate legal responsibilities, the amnesty law would first have to be declared null and void. So it is that the right – wing is hoisted on its own petard. If it is not possible at this point in time to bring the presumed violators of human rights of other persons before the courts, the discourse of the right, which announces apocalyptic catastrophes, is motivated by its own impotence and has no other recourse than to launch threats with the intent to terrorize the population and so obstruct the population’s ability to bring legal action to bear. The reaction of the right wing has clearly demonstrated the limit of the independence of powers, its aversion to criminal justice and the limits of the state of law. The law is not universal, justice is partial and peace is won at the cost of law and justice.

    A little more than two years ago, an ex Civil Patrol Agent who had participated in a demonstration to demand aid from the government died when an out of control National Civilian Police Agent of the Unit for the Maintenance of Order fired a rubber bullet at hiss chest almost point blank. This act once again placed this group’s the struggle in evidence: it is a struggle which has been marked by numerous obstacles and much manipulation. In fact, a few days before the presidential elections placed Francisco Flores in the presidential office, these people were practically incited to vote for the reigning government party in exchange for 10 million colones, originally received as aid for the damage done by Hurricane Mitch to their lands. A little while later, this same group witnessed with great hope the rise of a new political party—the National Action Party (PAN)—led by the independent deputy Horacio Ríos and which supposedly offered them the power to make decisions which they had never had before. Now Deputy Ríos, paid off with another seat in the Legislative Assembly, has been expelled from the PAN party accused of ignoring the bread and butter demands of the Ex Civil Patrol Agents.

    In recent days, this group of demobilized agents have once again placed their hands upon the gears to apply pressure in order to oblige the government to guarantee the benefits which, in their judgment, they are entitled as a result of their participation during the armed conflict. Nevertheless, their reappearance on the public scene is once again marked by manipulation. This time, Ex ARENA party Deputy Orlando Arévalo, has utilized this group with its pressing needs in order to organize a whole campaign for destabilizing the government and, as a result, destabilizing the party which expelled him for his lack of discipline. As a result, the most recent actions of the demobilized Civil Patrol Agents were aimed at paralyzing San Salvador by closing off access to important streets and highways leading to the public offices housed in Government Center. So it is that the security corps have had to deal again with some demonstrators who have a great organizational capacity as a point in their favor and a disposition open to continuing on “until the last consequences” in their intention to be heard.

    Definitively speaking, the problem which the demands of the ex Civil Patrol Agents points to merits special attention because of its radical nature and its objectivity. On the one hand, one cannot ignore the fact that the state is committed to those who at one point in time defended its interests. In fact, once the armed conflict is over, that commitment had to be translated into the search for a place and way to incorporate these and other ex combatants in the society resulting from the Peace Accords. But in order to succeed in this objective not only was it necessary for a pension and some monetary payments be made to them—which are the current bases of their demands. They also have to repair the social and psychological damage that influenced these ex combatants when they consented to participate under the rules of the battlefield. Their possibilities for being able to find education and training which would have allowed them to occupy the best positions in the labor market, the only thing that was left to them at the end of the war (whether it was through a negotiated solution or by means of a victory by the side in which they worked) were the favors offered by the state. And this is precisely what they never received.

    But from another perspective, if the option were taken to cede to their demands and pressure, obviously they would have legitimized the effectiveness that this group might confer upon such mechanisms in which the option for violence and prejudice prevailed. This is the same reasoning that the government adopted in order to close off any possibility for dialogue with those who had been demobilized. The problem is that this posture—which President Flores assumes with enthusiasm every time he has the opportunity—does not take into account that this kind of demonstration is a product of the past in which the very existence of the Civil Patrol Agents was created and whom no one, since 1992, has compensated. During the epoch in which the logic of the armed conflict prevailed in the majority of social relations, these persons opted to submit themselves to that logic with the objective of assuring some minimal guarantees for survival. And their option was produced even when that survival was based on constant threat, espionage and institutional terrorism. This “benefit or profit” presupposed, as has already been said, the loss of other opportunities for development for the ex combatants and now, some eight years after the ending of the armed conflict, appears on the list of their demands.

    In this sense, as long as there is no serious commitment by the government for satisfying these demands inherited from the war years, the condemnation which Flores and his closest functionaries present with regard to the activities of the demobilized loses much of its validity. And this, above all, because this condemnation appears to be followed by an imposition: the possibility of providing a place for dialogue with this group requires, undeniably, the abandonment of these demonstrations, considered to be “anti-democratic”. But the dimension which the pressures applied by the demobilized might have easily been mitigated if they had, from the very beginning, been included in the plans for reconstruction and reparation posed by the Peace Accords. Very much to the contrary, what these groups confronted was a forced uprooting of their “dream” for a better country which was presented in the Peace Accords and which, it should be clarified, was not considered when it came to dealing with the most vulnerable sectors of the population.

    But there is one more aspect to consider in this history of the ex Civil Patrol Agents’ struggles and resistance. One should not lose sight of the fact that this was one of the groups most victimized by the manipulation by groups in power who did not have this groups interests at heart. As if it had become customary, some sectors of the political class of the country have used the strength and force of these groups in order to assure for themselves privileged spaces within the state apparatus. The fact is that when these sectors pay attention to the demands of the ex Civil Patrol Agents, their actions have had very few real and positive repercussions upon their situation. Evidently, each time that the ex Civil Patrol Agents appear to demand reparations from the state which they feel that they merit, other interests are inserted into these demands the debate about which is made possible thanks to their intervention. At one point, they were governmental functionaries of ex President Armando Calderón Sol’s administration. Then it was Deputy Ríos. Today it is Deputy Arévalo who wants to pay back those in places of power who expelled him from their midst without any possibility for reply.

    If it is true that the state is obliged to oversee their peaceful insertion into society and that certain sectors exist who exploit that commitment in order to reproduce their mechanisms of control over the state, then it is high time that those who are demobilized become aware of their situation. And for this, beyond criticizing the characteristics of their actions, one ought to begin by evaluating the true force which a movement which has had to deploy itself according to the designs and plans of specific groups in order to make itself heard. In this way, what they ought to throw up into the faces of the demobilized is the inability to distance themselves from a power which looks upon them as the perfect tool for applying pressure in favor of their interests. As a result, the demobilized personnel’s movement ought to force itself to renew the character of their demands and, in consequence, of the mechanisms used to make them public. To the contrary, they should not have to deal with the manipulations of which they are victim, nor should they have to deal with the uprootedness of the situation to which they have been condemned by government administrations incapable of dealing well with their needs.

    The contracts which assigned the provision of electrical energy have been the subject of conversation since the “Nejapa Power” case became public. In this case, the recently named General Superintendent for Electricity and Communications, Ernesto Lima Mena, pointed out that the provisions of the contract signed by CEL and the Nejapa Power company locate the state in a very disadvantageous situation which would mean an additional cost of 215 million colones annually for CEL for a period of 15 years, which was the period of time stipulated in the contract.

    This thorny topic was revived during the recent declarations by CEL functionaries, according to whom the sale of the thermal electricity generators also took place under conditions inexplicably advantageous for the buyers to the point that it would seem that CEL would have to pay even for the energy not produced in the thermal generating plants recently privatized. Afterwards, CEL vehemently denied this situation in a series of public communiqués, but even so, it might be useful to examine more details of this polemic in order to place the topic of the reform of the electricity sector in perspective and especially the conditions under which CEL buys electricity from private enterprise.

    The establishment of the first generator enterprise of large dimensions (Nejapa Power), the sale of the distributors of electrical energy and, more recently, the sale of the thermal electricity generators are some of the most relevant facts surrounding the reform of the electricity sector and none has been exempt from polemics. The case of “Nejapa Power” has already been sketched out, the sale of the electrical energy distributors has raised the discussion in the legal context which governs the functioning of that sector and facilitates the periodic adjustment of the rates. To the foregoing is added the polemic raised by personalities in CEL itself in the sense that that institution pays operative businesses of the thermal generators even for electricity not produced. Owing to the importance of this issue, some details are reviewed below in this recent case—as well as its precedents—which justify the review of the concessions made by the state in order to buy electricity or, even less, the installation of a more open policy by the state.

    Last October 17 functionaries of CEL went to the Legislative Assembly. Among these personages figured the president of CEL, Guillermo Sol Bang and his Executive Director, Jose Medina. The presented themselves in response to a petition by the deputies of the Economic and Agricultural Commission who were interested in knowing more about “the handling of prices and compliance with the law which governs the sector”. Nevertheless, in the end the most relevant data arising in the meeting was that the functionaries cited by the Assembly recognized that the operative enterprise of the thermal generators paid them even for the electricity it had not generated.

    In July of 1999, Duke Energy International bought, for 125 million dollars, the three thermal electricity generators previously operated by the state. Since that time, and in accordance with the general manager of Duke Energy International, this enterprise has had to invest close to 70 million dollars in order to modernize the Acajutla plant. Even so, Duke would only be operating one of the three generators acquired (that of Acajutla), because those from Soyapango and San Miguel are not functioning, their costs of operation being too high.

    Surprisingly enough, the Executive Director of CEL pointed out in the meeting mentioned above that that state plant pays between 850 and 900 colones daily for each megawatt that Duke does not generate in each one of the two inactive plants which, taken together, have a capacity of 85 megawatts. According to this journalistic information, CEL would be paying between 72,250 and 76,500 colones daily for energy not generated—this is to say, between 26,371,250 and 27,922,500 colones annually.

    Doubtless, this poses justified doubts about the convenience of the state contract have signed with the diverse enterprises which have entered into the electricity market. It is not surprising that the following day these same CEL authorities gave the lie to the supposed concession offered to Duke in public communiqués, which stated that “CEL has not paid Duke Energy for energy not generated”, but it does have a contract which has “as its objective the supplying of cold potency and establishes two different charges: one for the availability of the capacity contracted and the other for energy produced which is in effect only when these are required”. It adds that these contracts are “very common” and “function as insurance for the availability of energy for the system in cases of draught or emergency”. To the foregoing it adds, as well, that, according to CEL, the contract signed with Duke Energy provoked an “immediate lowering and stabilization of prices for energy” from 1,159 colones which it cost in April to 650 colones for last May.

    The same communiqué establishes the fact that Nejapa Power, which is ruled by the Take or Pay modality, which implies that it “has contracted a determinate quantity of energy, the average price for which, at this point in time, is between 850 and 900 (colones)”.

    The foregoing “clarifications by CEL still pose at least three questions: “why lower the prices when signing a contract for the energy generated by thermal means which, doubtless, costs much more than that generated by hydric or thermal means?; is it justifiable to pay a higher price to Nejapa Power (they are paid up to 900 colones in spite of the fact that since May the price was closer to 650 colones as CEL itself recognized?; and, finally, although non-generated energy is not paid for, the doubt persists: is there a charge for the “availability of the capacity contracted” although the electricity is not received?

    Independently of the obvious contradiction (or retraction) which the functionaries by CEL have incurred, the moment is ripe for point out that the ARENA administrations seem to have adopted a deliberate policy for favoring the businesses which decided to participate in the privatization programs or in the concessioning out of services previously offered by the state. As was pointed out above, in the electricity sector, this policy has been in evidence at different points in time (as in the case of Nejapa Power, the case of the rates charged for electrical energy service and, more recently, the case of Duke Energy) but it seems as if none of the evidence has occasioned a review of the state contracts and policies — especially those of the ARENA administrations—has been applying in order to push the processes of privatization in process up until now.

    The privatization of other public enterprises is still pending (the sale of the hydroelectric dams is even being considered) and, should the current system be maintained, it seems clear that this process will only benefit the companies which acquire public enterprises. The patrons who use these enterprises will have to confront higher rates while the state—apart from giving up the income which these enterprises generate—can also charge additional fiscal costs (such as the overly high payments to Nejapa Power) in order to provide privileges to the enterprises which decide to intervene in the business.

    The case of the CEL shows clearly that the state entities must be required to adopt a more transparent policy in relation to the topic of privatization because, up until now, the clarifications are contradictory or, in the best of cases, still leave room for doubt.

    What would have happened if on Sunday, August 27, the newspapers had not published the picture of the shameful condition of Deputy Francisco Merino after his run-in with the police? What would the authorities but done if the television news spots had not shown images and sound of the ex Vice President who could scarcely articulate a word or even stand up? If we had been in another time and place when news photos and sound were scarce, the act would have been immediately filed away. Nevertheless, the photos and images of the PCN deputy abounded. In spite of the moral complicity of his fellow party members, the possibility—although remote—that Merino would have been judged as any other criminal.

    How has the print press contributed to the possibility that Merino’s actions not remain as just one more case involving impunity? It has done so by two means: first, thanks to observation and information about the actions and then by monitoring the actions of the public functionary. This contributed towards generating social pressure which placed in doubt the legitimacy of diplomatic immunity in the specific situation of Deputy Merino.

    In observing and reporting the incident, the two Salvadoran morning dailies published an enormous amount of data so that the population might know about the situation and events. On August 27 and September 14, La Prensa Gráfica, presented a total of 15 pages on the event, which occurred in the early morning hours of August 26. El Diario de Hoy, on the other hand, published 18 pages during the same period. This article is an analysis of the first two weeks of coverage of the events from the moment it occurred and was published up until the first investigations by the authorities.

    The two newspapers described how Deputy Merino, in a state of drunkenness, threatened a private security guard at a residence in Colonia Escalón. It published the reports of a woman who notified the National Civilian Police of the event. It also reported the police following Merino’s car, the exchange of gunfire, the wounding of the policewoman and the damage to the PNC vehicle. The photos of the PCN Deputy, at the time of his arrest, showed him in a deplorable state.

    Once the stage involving the description of the events was finalized, the morning dailies followed the course taken by the Attorney General of the Republic. An examination of the coverage at that point in time shows the newspapers openly declaring themselves in favor of removing Merino’s diplomatic immunity so that he could be judged as a common citizen.

    In the El Diario de Hoy coverage, the analysis of the situation and an evaluation of Merino’s previous conduct and history was the highlight of the publication of the Sunday Supplement Vértice, for September 3. Various versions were published in this section, according to which Deputy Merino, armed and drunk, was accustomed to being involved in frequent scandals. It is said, moreover, that in 1989, Merino was separated from his functions as Minister of the Interior for the illicit purchase of equipment for that institution. At that time, Merino was, simultaneously, Vice President of the Republic. Vértice also presented his supposed participation in a business involving taxis which operated in the eastern region of the country in legally dubious circumstances. As he was a Deputy for PARLACEN, Merino was involved in the supposed purchase of green zones in San Luis Talpa in the Department of La Paz. This was one of the obstacles which impeded Merino from continuing in the state comptroller’s office. It is lamentable that the morning dailies have insisted so little upon the antecedents which reveal sufficiently serious faults committed by Merino as to stop his political career. It is equally lamentable that the Salvadoran people have not taken all of these spots on his record into account and presented them before the Legislative Assembly at the moment when they voted for his party.

    In addition to keeping the scandal starring deputy Merino on the national agenda, the morning dailies took up the role as monitor in a satisfactory way as the press should. As opposed to those who wanted to lower the level of importance of Merino’s actions alleging that they belong to Merino’s private life, the press, in a very astute manner, took care to maintain the public character of what happened.

    As he was a publicly elected functionary, the PCN Deputy could not avoid a public trial and the press took responsibility for adding elements which proved that his acts went beyond the private sphere. As El Diario de Hoy pointed out in one of its editions, Merino’s constitutional immunity does not cover deputies in the commission of common crimes. Although Merino declared he had forgotten firing his gun against those who were following him, the Attorney General’s Office found sufficient arguments to judge him for causing grave harm to a police agent, for aggravated threats against a private security guard with and for causing material damage to the PNC patrol truck.

    The press also placed the weakness of the PCN deputies’ arguments—and some ARENA members’ arguments as well— in evidence when they attempted to absolve Merino from guilt. On several occasions, the newspapers pointed out, with a certain irony, to those that held the opinion that “anyone can take a few drinks and cause a scandal in this country”. They also made fun of those who said that “Bill Clinton committed errors and stayed in the presidency” or those who repeated that “he who is free of guilt should throw the first stone”. The scorn was much greater in the caricatures of Ruz, who cleverly placed him in “the decent drunk’s guild of El Salvador” to step aside from any relationship with Merino because they were “calm and relaxed” and never fired “at the PNC”.

    Even when the newspaper took maximum advantage of this scandal, many times without presenting any new elements for clearing up the situation, his insistence upon the gravity of the crimes committed by Merino led, in some way or other, to a situation in which the Legislative Assembly and the Attorney General’s Office reacted at an unusually stepped up rhythm for both institutions. In spite of the fact that the press exploited the morbid nature of the situation, the spectacular quality added to what occurred obliged the authorities to act.

    The overly generous press coverage of this incident notwithstanding, the attention of the media deviated away from the other problems of the same or greater importance for the country. From August 27 to September 1, the case of Deputy Merino was a top item in the printed press and in some cases replaced topics of national relevance, especially the epidemic of hemorrhagic dengue. Every day that week El Diario de Hoy and La Prensa Gráfica dedicated front-page status to the Merino scandal. During the second week of coverage, the Merino story passed to the inside pages and received fewer column inches.

        *Notes published from august 27th to september 1st.

    The spread of the dengue epidemic and the deaths it caused moved to the back burner during the first week in spite of the fact that some days later—September 11—the administration was forced to declare to the country that it was undergoing a national emergency. During the first week in which the Merino scandal was covered, El Diario de Hoy covered the proliferation of the dengue epidemic on only four occasions while La Prensa Gráfica published news items every day, but—just as El Diario de Hoy—it did so on its inside pages because the Merino case was always given privileged coverage in both newspapers, as the chart shows.

    Neither of the Salvadoran morning dailies dared to judge the actions of Deputy Merino directly on its editorial pages. It cannot be said with certainty why the editorial boards of the newspapers did not make an open pronouncement against the actions of the deputy. As the academic researcher Lorenzo Gomis states, “a newspaper is on point when it highlights a news item which it comments upon itself and encourages commentaries on the days following and it errs when it highlights a news story which will not be commented upon even in its own newspaper”.

    In the current state of affairs of the news media, in which some kind of censure is likely to appear regularly, it would be illusory to attribute to the press the functions of the fourth estate for the ties it maintains with the powerful sectors of this country. In the Merino case, it would seem that it has intended to make him pay for his crimes because the spectacle drew much attention and this was exploited to the maximum by the media. All in all, that attention incited social pressure to such an extent that the system needed to make minimal attempts to apply justice. Perhaps if the interests of the media and their closest sponsors had hung in the balance, the print press, television and radio would not have rushed at Merino with all of its “weapons” in order to call the image of the deputy into question.

    Merino has worked in many key institutions of the country: the Executive branch, the Legislative branch and the Comptroller’s Office. In bringing him to account publicly, the media not only ought to take into account that he drank too much and that he fired his gun against human beings. But they should also take into account his dubious track record. As in the case of any political life, Merino’s life has been characterized as having been involved in actions which verge upon illegality without his having to present accounts publicly for the way he acted. In the last analysis, he was caught by the press like the cat who had just eaten the canary and photographed with the evidence of feathers around his mouth. The rest is all too well known and this series of events ended up plunging the political class even further into the mud.

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