PERU: PRESIDENT MANIPULATING JUDICIARY

Created: 5/20/1998

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Intelligence Report

Office of Asian Pacific and Loan8

Peru: President Manipulating Judiciary

President Fujimori has in recent months made several well-received reforms on the margin* of the judicial system, such as ending the use of anonymous judges in terrorism trials androgram to pardon prisoners wrongly jailed for terrorism. At the same lime, however, Fujimori has used his majority In Congress to thwart the growth of an independent judicial system and to ensure that the judiciary poses no obstacle to his constitutionally questionable questhird term. He has also sought to intimidate his critics through Ut allies in the judiciary.

at the President's direction, sacked

three independent members of the Constitutional Tribunal last year and has passed legislation seeking to limit the judiciary's power.

polls since then show that the public's view ofas corrupt, politicized, and ineffective

Fujimori is likely to continue to use his considerable influence over Congress toudiciary sympathetic to his interests. His record suggests he is unlikely to allow development of the independent judicial system necessary for the consolidation of democracy in Peru.

also seems reluctant to limit further the authority of the military courts, which continue to hear civilian coses involving terrorism.

The President may, however, propose further legal and constitutional changes to the judicial system in an attempt to decrease its vulnerability to corruption. Lima hasillingness to work with international organizations to enhance judicial professionalization, which could lay the groundworktronger systemost-Fujimori era

Foreign governments might also provide legal and technical assistance to further such projects as upgradingcurriculum and Draining lower-level officials. '

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Prisoner Pardon Process Highly Praised but SUIl Flawed

Lima recently extended until December the term of the pardon commission charged with reviewing cases of prisoners who claim to have been wrongfully detained on terrorism charges and expanded its authority to review cases of prisoners denied promised sentence reductions in exchange for cooperation with the government:

Many prisoners seeking pardons were convicted on the testimony of terrorists who cooperated with authorities in exchange for leniency, or by the recently abolished faceless courts.

The pardons are popular with the public, and President Fujimori probably calculates that theyearly cost-free way to appealopulace that has grown increasingly critical of his heavyhanded governing style in the last

onths. T

Nonetheless, human rights organizations and administration opponents continue to condemn the pardon process for not going further. The legal records of those pardoned arc not expunged, making it difficult for them to obtain work, and they receive no compensation what were often years of imprisonment or for assets seized by the courts. Moreover, these same groups have criticized the process for

Moreover, the pardon process inadequately addresses scores of cases in which prisoners received sentences in apparent excess of their crimes. I-

An Ongoing Program of Reform

President Alberto Fujimori has made extensive changes to Peru's judicial system since his auiogolpe. or self-coup, in2 when he suspended the Constitution, dissolved Congress and the courts, and fired most judges. Many of the measures Fujimori implemented in his first term and the administrative changes enshrined in3 Constitution were designed to strengthen the courts' ability to combat terrorism and narcotics trafficking by reducing Ihe system's vulnerability to corruption and mtunidation. Although these reforms did help the government mm the comer against the insurgencies, they sparked criticism that due process and human rights were sacrificed in the process.

Since Fujimori began his second five-year term ine has justified continued tinkering with the judiciary as efforts to improve administration and to address the most widely criticized aspects of the system, especially its intractable corruption,

Jsome recent changes have been viewed positively as key steps toward redressing some of the human rights concerns lingering from Lima's counterterrorism efforts in the early part of this decade:

Fujimori signed legislation in February making torture, forcedarrestarrant or writ of habeasand genocide by government security services criminal offenses, and empowering civilian courts to try security officials for these offenses. The military had long resisted these measures.

Lima allowed the faceless, or anonymous, civiliancondemned by international and domestic human rights organizations for their lack ofexpire inaying lhat the diminished threat of domestic terrorism renders them unnecessary.

the military simultaneously ended anonymity

for military judges who try civilians for treason or aggravated terrorism.

government has releasederrorism detainees, determined to have been wrongly imprisoned, from prison sincehe ad hoc commission that recommends the pardons to the President has had its authority extended until8 because it still basases to review.

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Lima's Criminal Code Short on Due Process, Long on Delays

President Fujimori continues to refuse to sign congressionally approved legislation that would replace Pern's anachronistic lawstreamlined set of procedures modeled on the US system. Peru's legal system, like those in most Latin American countries, is based onh century Napoleonic code in which most arguments

are written rather thansaid the new code.

which would shift the investigative burden from judicial officials to tbe police, would require too many resources. The current system, however, is shrouded in secrecy and lacks due process.

The lower court judge assignedase is responsible for carrying out his own investigation under virtually no supervision and with only notional time limits.

If the investigating judge decides there is enough evidence touspect for trial, he sends the case to the Superior Criminal Court,hree-judge panel reviews the written arguments anderdict and sentence,

Either side can appeal the Superior Court's sentence to the Supreme Court, which can modify or overturn the verdict or sentence. _

esult of this drawn-out process, prisoners often languish for months orwithout being sentenced, although the speed with which new casesappears to be increasing.of a

prison population of0 prisoners, onlyrercent, have been sentenced; the remainder are waiting for trial or sentencing. In addition, administrative inefficiency and inadequate training hamper due process:

The failure to adequately assign judges and schedule hearings often means extensive delays and postponements. Hearings for narcotics cases, for example, are held at three different prisons in the Lima area, and judges are often scheduled for consecutive sessions in different locations.

While judicial experts identify inadequate training for attorneys and judgeserious flaw in Peru's judicial system, the two-year-old Judicial Academy's efforts to train prosecutors and other officials are beginning to address this deficiency.

The government's office of the human rights ombudsman has become increasingly independent and well respected since its creation inhe ombudsman, Jorge Santistevan de Noriega,ember of the pardonocal advocate of citizen rights, and actively investigates allegations of wrongdoing by government agencies,

Despite these changes, polls sponsored by private and non-governmental organizations (NOOs) indicate that the public continues to regard the judicial system as corrupt, inefficient, and politicized:

In an NGO survey of business people,ercent of the respondents said they would be reluctant to use the court system to resolve their

legal disputes.

Opposition politicians and the press have criticized the fact that between one-half and two-thirds of current judges areppointed by Fujimori in the aftermath of the autogolpe.

Running Roughshod Over Judiciary in Quest for Third Term Recent moves by Fujimori appear aimed at ensuring that the justice system docs not threaten his power. In recent months, Fujimori has usedwhich hisew Majority political movement holdsstifle judicial independence and solidify his chancehird term:

Congress passed legislation in March eliminating authority of the National Magistrates Council to investigate allegations of wrongdoing by judicial officials, prompting the entire Council to resign and the World Bank toillion loan specifically targeted to bolster judicial reform and services. The Council had been probing charges ofthe infiltration of intelligencethe government agency that maintains voter rolls, as well as unrelated fraud charges against Supreme Court justices.

Another recently passed law grants therovisional and temporary members of the Supremeare presidentialfull rights of the permanent members. This move gives Fujimori supporters added clout in choosing the chief of the Electoral Tribunal, the body that will ultimately rule on the cousuiutionality of Fujimori's bidhird term

Inongress removed three members of the Constitutional Tribunal who had issued an opinion that Fujimori should not be allowed to runhird term. The Tribunal's president resigned in protest, and the court has since been inoperative because Congress cannot agree on new appointees.

The legislatureaw in6 "interpreting" the Constitution to permit Fujimori to run for another term in an effort to remove the issue from the judicial system's purview.

Using Judiciary To Stifle Opponents

The Fujimori government has mampulaKoThe judicial system to intimidate its critics, including some judges who have ruled against the administration's interests. Many judges have experienced on-the-job harassment and other threats, according to

press reports. Several of these incidents servedarning toiudcd officials thai the Fujimori administration *ould net hesitate to interfere in the justice system:

Lastudge appointed by Fujimori effectivelyelevision station that had broken several stories embarrassing to the military, the National Intelligence Servicend tbe President by stripping the owner, naturalized Peruvian Baruch Ivcher, of his atizeoship and control of his television station.

Inhe Publicjusticesacked an aggressive prosecutor who had sought to convict an Air Force pilot accused of narcotics trafficking. Although Peruenerally good record in prosecuting narcotics-related military corruption, thepublicly defended the pilot-collaborated with the militarythwart

1 Tbe Electoral Tribunal willtake action on tho manor until Pqiroori officiallyfcjtcwrt'l snpportcn wpue thai, became3 ConstitutioncoMtcotiit prcndeotUl (emu. Pajhncc should be allowed to ran againIbat Fojanori'i firtt, wQica began under the previousnol count against the lwo-4crm limit.

progress on this particular case because itolitically well-connected officer.

Also in August, the Interior Ministry anucunced it would prosecutecourtavid num an

rights advocate who has clashed with the military and Nationalterrorism after sheerrorist suspect for lack of evidence.

Although human rights ombudsman Santistevan has won kudos for bis leadershipledgling office, he haseluctance to confront potentially explosive issues directly.

The Fujimori administration has sought to maintain control of the judiciary by establishing auxiliary bodies to circumvent and overrule independent institutions:

After public and political opposition thwarted attempts by Fujimori loyalist Blanca Nclida Colan tohird term as attorneypost she held2 until Januarypassed legislationublic Ministry oversight committee and naming her as chair. In her new position. Colan has usurped many of her successor'scontrol of the Ministry'sand has at nines worked at cross-purposes with him.

The judiciary's executive commission has exercised an iron hand over the judicial system, protecting Fujimori loyalists.!

l the conunission neverull accounting of the

judge and prosecutor positionsdeliberate effort to prevent the Council from replacing theofficials.commission's

current chair, Davidin early May replaced retired Navy Commander Jose*close ties to the military justice system and is likely to support Fujimori's efforts to undermine judicial indrpmiicn-c.

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Outlook: Continued Executive Interference in Weak Judiciary

Fujimori hasetermination to use the judicial system to support his political interests. He is seeking to maintain his power and ensure that there will be no legal obstacles to another presidential bid0 by retaining loyalists in key positions, and using Congress and ad hoc bodies to overrule or circumvent inconvenient judicial rulings and hobble the authority of judicial institutions:

The reconstituted National Magistrates Council now comprises judges considered more sympathetic to the President and his supporters, and the Council is unlikely to have the inclination or the authority to carry out its constitutionally mandated mission of disciplining judges for wrongdoing.

Congress, at Fujimori's behest, is likely to replace the impeached members of the Constitutional Tribunal with judges less likely to oppose the President's goal of runninghird term.

Although the authority of the judiciary's executive commission expires at the end of this year, Fujimori mayongressional extension in order to maintain an ally in control of the system. I"

The political opposition in Congress has proved largely unable to oppose legislative maneuvering by Fujimori and his supporters, and neither the human rights ombudsman nor other judicial officials are likely to challenge Fujimori's interests directly for fear of retaliation.

Although domestic human rights organizations, the human rights ombudsman,political opposition in Congress will undoubtedly continue to press for passagerevised criminal code, Fujimori is unlikely to change his stance on it in theHis interest in maintaining fiscal discipline and focusing on social programsremainder of this term makes it doubtful he will seek significant fundingthe judicial system.

Fujimori will probably resist proposals curbing the military's authority to try civilian terrorism suspects as long as terrorist groups remain active. Although tbe courts are no longer anonymous, they continue to lack procedures guaranteeing due process. The use of military courts will, however, help to keep terrorism and extrajudicial action by security services against terrorist suspects under control by ensuring that the system is powerful enough to deal with such cases.

However, in his effort to root out corruption and boost public confidence in the judiciary, Fujimori may propose further adrninistrative and possibly even constitutional changes to the judicial system in the remaining two years of his current

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Mercurial Justice System Still Hampers Foreign Investors

although Peruvian laws regarding contract rnfp'<.vmeni. intellectual propertyraud and other trade- jrul business-relaicd issues are among the strongest in Latin America, they arc applied inconsistently and ire often manipulated by judgci responding to political Lntercsli OdBfUOM

'regarding such fickle enforcement are

frequent

Surveys by multilateral institutions have shown that entrepreneurs in Latin America consistently cite the inconsistent enforcement of lawsisincentive to investment. World Bank officials estimate that weak judicial systems may restrain economic growth by as much asercent per year. | |

In ooe high profileS mining firm and its Peruvian partner havea partially state-owned French company for several years in Peruviancontrol of the Yanacocha goldFujimori

adminisu-ation officials have allegedly accepted bribes from the company and that Lima has been lobbied heavily by the French Govemmcni and has sought to influence the outcome of theinal ruling by the Supreme Court is pending.

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lerm. In addition, Peru's recent steps to remedy some of the most widely-criticized aspects of the judicialmaking torture illegal and pardoning some terrorist convicts, forthat Lima is conscious of domestic and international pressure to provide formal legal guarantees.

Implications and Opportunities for the United States

Strengthening the judicialpublic confidence inincreasing its independence from executive branch influence are key elements in the consolidation of democratic institutions in Peru. Peru's ability to play an active role in the war on drugs would be enhancedtronger judicial system, as greater autonomy and accountability may bolster theesolve to charge individuals accused of narcotics crimes, efforts which long have been hampered by politicalore reputable legal system would further bolster Peru's ability to attract foreign investment f

Lima hasillingness to cooperate with NOOs in efforts to enhance judicial professionalization:

government has said publicly that it will attempt to workBank officials to reinstate the suspended loan, accordingreports.

pending loan with the Inter-American Development Bank is slated to go for the establishment of mobile judicial offices to provide services in the interior of the country,

These efforts may facilitate the developmentore professional and independent judicial branch over the longer term, particularly if Fujimori's successor is more supportive of an independent judiciary.

NGOs and foreign governments could provide legal and technical assistance for other expertise-enhancing projects:

Development of constitutional reform proposals that would clearly delineate civilian and military courts' jurisdictions.

Further development of the office of the human rights ombudsman.

Upgrading of law curriculum by local bar associations and law schools, and provision of postgraduate training and technical manuals to improve the overall level of professional competence. Training

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