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Proceso 965
August 29, 2001
ISSN 0259-9864
 
 
 
 
 

INDEX

Editorial:  The lack of evidence
Politics:  Judicial scandal
Economy:  The situation of the public finances
 
 
 
 
 
 

EDITORIAL

    It is a simple fact. The judge says that that there was only one evidence presented to him, which is the ownership of the property where the people kidnapped were kept as prisoners. Therefore, he considers that with so little evidence, he cannot keep the accused in jail, nevertheless send them to trial. The judicial decision has astonished certain circles, because it is about several individuals with kidnap charges, and because the victims are characters related either with the official party or to the power elite. According to the spokespeople of the former, there is plenty of solid evidence. However, after the judge’s decision, and because of the reactions that it has caused, it seems as if the case has been built more on political terms than on judicial ones, because everything indicates, according to the private business elite, the media and the government —including President Flores himself— that the Communist Party is involved.

    An irrefutable evidence for these sectors is the declaration of Joaquin Villalobos, to whom the maximum leader of that party would have mentioned that they were  responsible for one of the kidnaps. Such statement has not been confirmed by the judge. Joaquin Villalobos sustains that “it is a link that can be established in relation to a certain political foundation” and “it was about militants of the Communist Party”. However, Villalobos accepts the inexistence of evidence. Therefore, the problem is not the judge, because his sentence is based on the lack of evidence.

    The evidence must be provided by the Republic’s Attorney General’s Office (FGR, in Spanish) and the National Civilian Police (PNC). Consequentially, the responsibility falls on the hands of its directors, for not accomplishing their duties efficiently or, in any case, not just on the judge. Oddly enough, the Attorney General’s Office as well as the police have added themselves to the angry protests of the business elite, as if neither one of them had a responsibility in the case. Their claims are as political as the ones of the businessmen and the media, since they cannot present precise facts that can link the accused. In fact, the FGR has only appealed against the parole granted to one of the accused, accepting the judicial sentence in the other cases. Therefore, this issue cannot be held against the judge, but against the police and the FGR.

    Without a doubt, there are ignorant judges, and also, as Monsignor Rosa Chavez points out, there are also coward ones, but many cases remain unpunished more than it is frequently noticed, because of the lack of evidence, the incapacity and the indifference of the FGR and the PNC. To add up to the scandal of the business elite and the media is a good way to distract the attention from the real problems. That is why it is wrong that President Flores condemns the judge with such angry words. He should respect the independence of powers, because the lack of evidence is the responsibility of a police that depends directly on him. Why he does not get angry about the violation of rights and impunity? In any case, he should control his emotions when it comes to a judicial competence issue.

    Kidnaps are repulsive, but so is the impunity that prevails in the judicial system. However, the victims’ rights cannot be defended at the expense of the ones of the accused. It is the duty of the police (and the FGR’s) to prove the accusations with judicial evidence. However, in this case, the business and the media elite, who have attributed to themselves the representation of the public opinion, have settled their own particular judgment and have dictated their own condemnation sentence. But that is precisely the responsibility of the judge. He cannot rely his opinions on what the media assures, not even on the President’s opinion, but on what the evidence, the law and the healthy criteria says.

    Once again, one of the most serious deficiencies of the judicial system is that the instances responsible for gathering the judicial evidence are incapable of doing it. Anyhow, in this case, those who feel offended by the judge’s decision can appeal, because the process is not over yet. The president of the business elite is concerned that the judge’s decision scares away the investments, however, he should be even more concerned about the poor judicial investigation. There is nothing wrong with investigating the judge’s performance. Even so, it should be a quick and clear investigation to solve any doubts about his procedures.

    But who investigates the performance of both the FGR and the PNC? If they were investigated, and not only in this case, but also in all the other cases that have remained unsolved because of the lack of evidence, a lot of complicities of all kinds would appear. No responsibilities have been firmly established for the loss of evidence, for the crime scene contamination, for the misleading investigations, for the reluctance to investigate. All of those aspects deny the right to make justice. By making exceptions about what cases can be investigated and judged, power has contributed to destroy the Salvadoran judicial system.

    It is true that an impunity sensation prevails, however, at least in this case —and in many others—, the judge is not the source of it, but the FGR and the PNC. In this case there was a witness whose declarations would have given, with certainty, a very different turn to the accusations that were made, but such witness was not allowed to make his statement. He was murdered before he could appear in front of the judge. He was murdered in his own house, under unexplained and uninvestigated circumstances.

    Despite having been trained in martial arts, possessing military experience, and being a former bodyguard for congressmen, his throat was slit while watching television. The public ministry and the police lost a witness to whom they did not provide with the necessary protection. His testimony would have been too uncomfortable for those who hold the real power, it would have contradicted the official version that is now defended with such stubbornness by the private business and the media elite, and it would have exposed certain matters to which it would have been very difficult to respond.

    The reaction for the judicial sentence sets the weight of its argumentation in political considerations as well as in social prejudice, and it forgets the truth, because it would expose the brutality of a power that does not recognize neither human nor Christian values.

    The judicial apparatus is the talk of the town during these days. First, the claims of the Private Business Association together with the President of the Republic, who disapproved the decision of Judge Posada Vidaurreta (the freedom granted to several people accused of participating in much-discussed kidnap cases). Later on, there was also the case of the diplomas that were obtained in a fraudulent way by several judges and lawyers who belonged to the judicial system. The judicial organ officials have definitively turned into the sensation of the moment. However, in one or another situation, the system’s maximum institution has given a hesitating response and, what is worst, with an attitude that can make anyone doubt about the moral firmness of some of its most important members.

    Along with President Flores’ declarations about the decision of Judge Posada to liberate some of the accused of kidnapping Andres Suster and Guillermo Sol Bang, among others, the cold reaction that the Supreme Court of Justice’s president had was truly disturbing. With the attitude of an official of President Flores’ rank, violating the principle of independence of the State’s instances, it is distressing that the Supreme Court of Justice’s president has not been able to defend the judicial system, by reminding the President that the independence of criteria is something consecrated by the Republic’s Constitution, to which Flores swore to respect and make everyone else respect it as well.

    The reaction of the Court’s highest magistrate about that issue did not help to clarify things for Francisco Flores, nevertheless to restore the dignity of the judicial institution or the one of the mentioned judge. It is not about sharing or not the judge’s criteria to declare the innocence of the accused; it is only a matter of dignity and respect for the institutions, specially for the judicial system. With his declarations, President Flores walked all over the Judicial System’s autonomy, however, no magistrate dared to disapprove of his attitude.

    Something similar has happened in the case of the judges and lawyers with false diplomas. In the first place, this issue is not a novelty as far as the public opinion is concerned. The behavior of some of the professionals in this area had been already denounced. However, the most serious aspect has been the way the maximum judicial institution has responded. Once again it has not been at the level of the circumstances.

    Ever since the first denunciation of the Judiciary’s National Council, the pertinent decisions should have been taken, to clarify the issue of the officials with presumed false diplomas. However, the court ignored the problem, avoiding its responsibilities. That evasive attitude explains why today, with the published news, the Court shows a defensive attitude, trying to renovate its compromise with the truth, the necessary process and so many other pretty words that are printed in the press release published in the papers.

    However, no matter how many notes or indignation speeches that might be broadcasted, it is a fact that it will be very difficult to convince the citizenry about the integrity and the impartiality of the judicial system. It takes more than words to gain the desired trust. Actions should reflect the permanent compromise with justice, integrity an independence of the Judicial organ. Who can be convinced about the compromise with the truth of the ones responsible for the administration of justice, when not even the President of the Republic shows his respect? Who will be convinced that the Supreme Court of Justice really has the intention to resolve things, when it has not even reacted to the Judiciary’s National Council’s revelations about the need to investigate the diplomas of some of the system’s judges?

    The Court’s officials should not feel annoyed because the news media publishes information that questions their qualification or their actual commitment to depurate the judicial system. The first thing that they should do is show that they are willing to get to the bottom of things, regardless of the last names or the blackmailing skills of the ones involved. The request for the sense and for the good judgment of the Salvadoran citizenry that the court makes is, obviously, a non convincing call. The good judgment leads precisely to doubt about the dedication of the maximum judicial organ to solve this shameful issue, in which judges and lawyers are now involved.

    On the other hand, one of the issues that some of the mentioned characters and the Supreme Court consider is the need to respect the adequate process, and not to tarnish, unfairly, the names of those involved when there is no evidence to prove their guilt or to support the charges. It is important to mention that this demand is opportune. However, the court and the officials should not ask for this basic requirement of the people’s reputation only in this case. It is a principle that has to be defended at any time, even when the press tarnishes the reputation of the most humble people. In addition, the court should demand the same from the President of the Republic, who disrespected judge Posada.

    However, the fact that some names —of the people allegedly involved— had been published for the shameful issue of fraudulent acquisition of university diplomas is not so bad. Because the habit to cover up things when the elite is involved is the general measure in cases such as this one. That way, it is highly probable that the revelations of the press helped to point out at certain people who were allegedly involved, but who could have been protected by their influences in the judicial organ. In this sense, despite that it would have been better if the names were to be published at the end of the investigation, the press might have helped to stop some kind of covering up for the involved ones.

    The issue of the false diplomas means an important challenge for the judicial system. It is an opportunity to finally start the necessary depuration and to level the system with the Salvadoran people’s justice aspirations. The officials cannot keep hiding behind a depuration rhetoric, which results are not perceptible for the citizenry. If it were true that depuration is an every day practice inside the judicial apparatus, the Court would not be involved in this scandal. Many citizens keep having reasonable doubts about the intellectual qualification of most of the system’s officials. But it is not just that; it is also about redefining the profile of the judge facing the influences’ traffic which is one of the most common behaviors in our society.

    Only from that angle we can achieve the judges’ independence principle. The fact that the powerful sectors of this country aspire to manipulate the judicial system as they please, should also be a reason to worry for the magistrates. However, the Supreme Court has not written down this issue in its agenda. Momentarily, they try to come out of the scandal leaving it all in the hands of time to breath comfortably. It is evident that such attitude is not healthy at all for the judicial system. We have to bet on its depuration and independence, over the interests of both the influential people or groups.

    When it comes to interpretations about the Salvadoran fiscal situation, two important tendencies can be identified: the one that explains the existence of a fiscal crisis, and the one that explains that the fiscal deficit is at manageable levels (and even adequate ones). Each one has its own favorable points since there actually is a growing tendency for the fiscal deficit since almost five years ago. However, it is also true that the deficit has been covered with both the internal and the external debt, thanks to the relatively good financial position of El Salvador.

    However, beyond any conceptual accuracy derived from any of those perspectives, the truth is that the public finances of El Salvador reveal unbearable situations and tendencies. In addition to the already mentioned tendency of an increasing fiscal deficit, a clear economic incoherence can also be detected: it is necessary to increase the public investment and the social expense, but at the same time there are strong restrictions to increase the fiscal revenue and the tax rates. For the government —who seems to share the thesis that says that there is no fiscal crisis—, the public finances problem seems to be unimportant and intends to fight it reducing the government branches' budget in a 15%.

    This scenery exposes the need to reflect about the recent development of the fiscal deficit, the revenue, and the public debt to have a wider perspective of the public finances' real situation. The fiscal deficit's behavior —although it can still be at manageable levels— reveals a growing tendency along the last four years. In 1997, it was -1.8% out of the GNP, to turn into a -2.6% in 1998,  -2.8% in 1999, and -3.5% in 2000. Obviously, this is a growing tendency that turns even more serious when you consider the additional pressures that come from the post earthquake reconstruction, which make you think that, during 2001, the fiscal deficit can go beyond a -4% for the GNP.

    Without a doubt, there is a pernicious tendency for the public finances that sooner or later can lead to a fiscal crisis, understood as the government’s inability to face the programmed public expense, including the debt service.  Certainly, this was what was trying to be avoided with the tax reform launched in the nineties and that, fundamentally, was centered in the substitution of the revenue stamps for the value added tax, a reduction of the business companies’ profits tax in half, the elimination of the inheritance tax as well as the exportations’ tax, and the reduction of the importations’ taxes (also known as duty free).

    Taking a retrospective glance at it, it can be said that the reform has had a limited impact: the tax rates went from a 9.6% of the GNP to a 10.3% of the GNP between 1992 and 1993, mainly because of the introduction of the Value Added Tax. Since 1993 until 2000, the tax rates would have hardly been increased by two decimals to reach a 10.5% of the GNP, one of the lowest tax rates of Latin America.  All the planning and administration efforts of the reform do not seem to have come up with the desired effects, to judge by the modest growth of the tax rates. This is due mostly to the already mentioned tax elimination, but also to the reduction of the taxable economic flows.

    The coffee production and its exportations, considered in the past as the main resources of revenue, dropped down to the worst historic crisis of the cultivation profitability. The new activities and the "motor" flows of growth, such as the maquila and the remittances, are not levied not even when there are exportations or when they arrive to this country, respectively. It is worth mentioning, that it is not recommendable to intend to levy them, since it is questionable from the perspective of the negative impact that this would have over the investment flows (in the case of the maquilas) and over the consumption of the families with the lowest income (in the case of the remittances). The situation gets complicated if we consider that the consumers already pay most of the taxes, and that the business companies’ guilds have declared themselves, beforehand, against any possible increase of any kind of taxes (including the municipal ones).

    With the growing fiscal deficit and the reduced maneuver margin to increase the tax rates, the government has used his debt capacity either by contracting loans or by issuing Letras del Tesoro (government/treasure bonds) (LETES, in Spanish). However, in the end, the government has had to finance the payments of the LETES through new mid and long term loans and in better conditions than those of the debt acquired through the LETES, generally agreed for short terms and high profitability rates.

    Practically every year the government's finances are unbalanced in a 40%. That is, that the income planned hardly represents a 60% of the total expenses planned for the fiscal year. This gap is partially financed with the issuing of the LETES, which, as it was mentioned before in this article, later turns into a long term debt, and then it represents a higher external debt.

    The internal and the external debt presently represents close to a 29% of the GNP, which, although it is not an achievement compared with the 45% and 50% that prevailed during the early nineties, it still can be understood as an important load for the public finances. Close to a 15% of the Nation's General Budget's total of each year goes to amortize the public debt, and that means to pay out an amount equivalent to a 150% from the Ministry of Health's budget. The recent tendencies show that the debt will keep increasing as long as the strong income-expenditure unbalance remains, which means that more resources will have to be assigned for the debt's amortization.

    Apparently, the most reasonable solution for the public finances problem would be the reduction of the public expense to levels close to the amount of the income. In fact, this seems to be the government's and most of the business guilds' interpretation. However, the counterpart of all this is the loss of an organizational sense and the loss of an execution capacity for urgent plans, programs, and social development projects, environmental compensation and, generally, the creation of sustainable surroundings for the economic model. It is essencial that the government uses the available resources in an efficient way, which does not necessarily mean that its budget has to be reduced.

    On the contrary, the deepness and the extension of poverty that prevailed before the earthquakes already revealed the need for social development government plans. Even more reasonably, the present conditions demand it after the formerly mentioned disasters, which require infra-structural public investment, housing subsidy, water and sanitation programs, social infrastructure rehabilitation and construction (schools, hospitals) and more human and material resources for the health and education branches.

    The fiscal trap that El Salvador faces is a consequence of both the financial requirements of the enormous social needs (and also the support for the economic development), and the reluctance of the business companies to pay more taxes. To overcome this trap, the best solution is not the public expense reduction, but the search for its efficient administration, together with an examination of the tax reform and the search for agreements in the fiscal field.