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THE JUDICIARY UNDER THE DICTATORSHIP
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DISSIDENCE WITHIN THE JUDICIARY
During the 17 years of military rule, the courts accepted the infringement upon their judicial independence and followed laws that were unconstitutional.
While some observers of the era attribute the courts' acceptance of this intrusion upon their authority to fear of reprisals, others contend that the regime's legal framework prevented the full exercise of judicial authority. Critics, however, maintain that laws were not necessarily a hindrance but rather it was the judiciary's blind obedience to these laws which usurped its own authority and led to the violation of human rights. Others say the courts willingly adhered to the changed legal norms out of genuine support for the new standards and affinity with, the military regime. These positions are examined below.
Fear
On December 6, 1973, the military rulers issued D.L.164, formalizing the political purge of the judiciary that had begun two months before. The new law dictated that the Supreme Court was to evaluate judges according to three levels of competence, upon which hinged the future of a judge's career. The lowest of the three ratings, "lista 3," permitted the dismissal of judges for political reasons. The Supreme Court was strict in the application of the law and rated all judges thought to have been sympathizers of the Unidad Popular government on "lista 3." By April 1974, 56 judges and magistrates - nearly ten percent of the total judiciary - had been dismissed.
Former Justice Minister (1977 to 1983) Monica Madariaga explained in 1988 how judges were appointed during her tenure. The Ministry proposed candidates to the Junta. If Junta members found the Ministry's proposal for future judgeships ideologically suspect, Madariaga was then called upon to defend them. Consulted as to the possibility that high-ranking magistrates could have followed a different course of action, Madariaga responded: "...Put yourself in a judge's place. How could they, with the strength of their court, have opposed the strength of weapons?" Had they opposed the regime, Madariaga adds, "I know the Junta. They would have ordered the judicial branch dissolved."
The Law
Defenders of the judiciary sustain that laws enacted by the regime prevented judges from protecting individual rights, but Roberto Garreton, attorney with the Vicaria of Solidarity and United Nations Human Rights Rapporteur since 1996, contends that even within the framework of these laws, the "courts could have prevented much pain and injustice."
Garreton points out that long before the 1980 Constitution officially restricted habeas corpus and civil liberties during states of emergency, the courts were already blocking these petitions. There was no legal ground or legitimate jurisprudence basis to stop demanding that guarantees of every detainee be safeguarded. Nor did there exist legal grounds that allowed judges to ignore habeas corpus requirements to act rapidly, avoid becoming fully informed on the facts or to evade verifying the detainee's condition by either visiting the prison or ordering that the person be brought before the court.
Blind obedience to law
Yet another position holds that the courts' unquestioning acceptance of decree laws, including those that restricted their own authority, is rooted in the "positivist" training of Chilean judges, who see their job as limited to carrying out - not interpreting - the law.
In July 1987 Supreme Court magistrates came out in their own defense with a public statement that affirmed: "...the Tribunals of Justice loyally apply the law, which for them is the written statute, and decide cases ... with no authority to scorn or ignore these mandates or invoke moral principles..."
This principle of strict adherence to the law was applied to such an extreme as to accept without question laws created or modified according to the military regime's convenience.
Regarding this unquestioning acceptance of the law, the Lawyers Guild (Colegio de Abogados) indicated, also in July 1987, in its response to the Supreme Court's statement: "... the mechanical interpretation of the law tends to consecrate a legal text, thereby giving the government the power to dictate any legal norm and have it applied without any criteria from the judicial branch."
The Guild added: "...It is also troubling that, with but a few honorable exceptions, considerations of justice and equity are absent from judicial rulings."
Political affinity
Another position regarding the relinquishing of judiciary independence is represented in the views of law professor Fernando Guzman ("Mensaje," July 1987) : "... there exists an affinity between the judiciary and the military regime... The judiciary could have adopted in practice and jurisprudence a position in defense of life and freedom. Instead, it preferred to follow a different course."
Dissenters: Judicial Independence Reasserted
Carlos Cerda
In March 1986 Santiago Appeals Court judge Carlos Cerda cited former DINA secret police chief Manuel Contreras to testify in a case concerning the disappearance of ten Communist Party members between 1975-76. By this time, Cerda had been able to gather detailed information regarding the repressive operations of an illicit group called the "Comando Unido."
Contreras gave the Defense Ministry as his home address and filed a complaint against the judge for having gone to his "home" to interrogate him. Air Force (FACh) General Fernando Matthei also complained that Cerda had "violently" interrogated a FACh lieutenant. Ignoring these complaints, on August 14, 1986, Cerda issued an historic ruling ordering the arrest of 40 members of Carabineros, Investigations, and the Air Force, including 33 active duty or retired members of the FACh. Among them was also former commander-in-chief Gustavo Leigh.
On August 30 of the same year the Aviation Administrative military judge challenged Cerda's competence, asking that he be removed from the case. Two days later, the Eighth Chamber of the Court of Appeals dictated the permanent closure of the case, arguing that Cerda committed an error in accepting the case when the amnesty law precludes prosecution. The Second Chamber of the Supreme Court upheld the ruling.
Invoking Article 226 of the Code of Criminal Procedure which provides that a ruling can be suspended when it "is evidently contrary to law," Cerda chose to ignore the ruling. In less than 24 hours, the Supreme Court met and unanimously suspended Cerda for two months without pay for having committed "a serious error" in continuing the case.
Upon learning of the sanction Cerda stated: "My actions are in keeping with the oath of allegiance to justice, truth, and peace which judges swear to when they take their offices."
José Cánovas Robles
Jose Canovas , also of the Santiago Court of Appeals accepted the investigation into the triple abduction and murder on March 28, 1985 of the three Communist Party members, Manuel Parada, Manuel Guerrero and Santiago Nattino within a few weeks after the murders took place. Four months later his meticulous investigative work pointed to probable suspects. In August 1985 Canovas issued his first decision, accusing the Dicomcar Carabineros intelligence unit of having been formed illegally and as the most probable suspect of the crimes. The Dicomcar's highest leaders were arrested along with operations staff. For the first time since the military coup, a member of the judiciary had accused the regime's security forces of a crime.
The Third Chamber of the Supreme Court accepted a motion against the members of the Sixth Chamber of the Court of Appeals, and in January 1986 ordered the release of the two Dicomcar chiefs, Luis Fontaine and Julio Omar Michea.
Canovas had worked almost a year on the case: the Third Chamber read the 2000 page court record in less than a week and concluded there were insufficient grounds to incriminate.
Later the regime decreed Law 18.431, known as "the Fontaine law" which prevented the CNI director of the same name from being sent to a public jail. Law 18.472, known as the "Mendoza law" did the same for Carabineros chief Cesar Mendoza, by setting forth that public figures vested with "dignity" cannot be interrogated in courts.
Eventually the rest of the suspects were released from custody as well.
On March 28, 1989, Canovas stepped down from the case and from the court, ending his 45-year-long judiciary career. Health reasons was the explanation he gave, but the date - nearly four years to the day since the triple murders - was telling. Sources close to the court confirmed that disillusionment at the impossibility to carry out his investigation had in fact led Canovas to resign.
In early May 1985, when the victims' widows met with him to plead for justice, Canovas had told them: "It is mistakenly believed that the outcome of cases depends entirely on the courts, when in reality judges cannot be effective without the cooperation from corresponding authorities called upon by law to assist in investigation of material evidence."
René García Villegas
Another judge who the Supreme Court twice sanctioned and finally dismissed for asserting his judiciary independence was Rene Garcia, of the Twenty-first Criminal Court of Santiago. In the more than 40 lawsuits he accepted related to the practice of torture between 1985 and 1989, Garcia's investigations focused on proving that torture, robbery and housebreaking could not be "acts of service" of military personnel. "I cannot conceive how anyone can be a military officer and commit such atrocities."
The first sanction Garcia received was a private reproach on May 5, 1988 for expressions he had made in the course of a ruling earlier that month which, in the view of the Supreme Court, were disrespectful to the Military Court. The offensive statement was the following: "...as has been apparent in previous cases, transferring to the Military Courts investigations conducted by civilian judges and which are related to crimes presumably committed by security agents, is tantamount to impunity for the guilty parties."
On October 25, 1988 the Supreme Court disciplined the judge again, this time with suspension from the court for 15 days. The offense was a statement Garcia made for Radio Exterior de España in which he declared that torture was practiced in Chile. Garcia's statement was aired on Chilean television September 13, 1988 as part of a "No" Campaign television ad, according to Garcia, without his permission.
At the time of the sanctions against Garcia, Judges Hernan Correa de la Cerda, Luis Correa and Jose Benquis, all leaders of the National Association of Magistrates, expressed their support for Garcia. All three judges were reprimanded by the Supreme Court for the "transgression" of having expressed their support for Garcia.
On January 25, 1990, less than two months before the inauguration of the first democratic transitional government after military rule, Garcia was forced to resign from the bench. A month before the Supreme Court had rated him on "lista 3" for "incompetent performance," for the second consecutive year, which gave him the choice of either resigning or being fired. In 1987 Garcia had become the first judge granted police protection, in response to ongoing threats against him and his family, as well as the break-in of his home, but the final blow against him was dealt by the judiciary's highest court.
Extract from Rene Garcia Villegas' autobiography "Soy testigo," 1990:
"A person who denounces a crime... does so as an act of conscience, of morality,... It is a response to an ethical imperative... To put a stop to evil, and to save those who are in danger. But ... [if] the author of the crime is at the center of power and acts in name of and for the good of society, who to turn to in this case?
To the courts, of course.
Yet, the courts do not wish to bother with the denunciation.
We have seen how the cats pursue the tiny mouse. We have also seen how thousands of cats flee from the mouse and his denunciations, and how this poor little animal desperately drags its wounded body to make the giant court cat listen to his pleas, see how he has been victimized, identify the criminals and punish them...
In the country of this fable where so many souls are mistreated, tortured, disappeared and shot without a trial, people wait in vain for civilian judges to receive their law suits, hoping they will not send their cases on to special tribunals to be filed and forgotten.
In a country like this one, there is nothing more dangerous than stepping out of the line, accepting the law suit, ordering an investigation and proceedings so as to learn the truth and punish the crime. In other words, become an investigator of real crimes that shame the nation, and denounce ... not only those crimes but the illegal association that commits them day after day.
How to explain such an incredible thing?
A very simple explanation. Investigating and, moreover, informing the public that such things happen in Chile irritates the Great Cat to no end, he who using the full force of his strength crushes with a single paw the audacious investigator of torture, and tosses him out the window... on account of his "bad behavior."
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