RIGHTS-PERU: Advocates of Military Impunity, Back on the Bench

• by Ángel Páez (lima)
• Monday, December 29, 2008
• Inter Press Service

The resolution, which was also signed by Defense Minister Ántero Flores Aráoz and Justice Minister Rosario Fernández, contravenes two decisions by the Constitutional Court assigning exclusive power to appoint judges and prosecutors to the National Council of Magistrates (CNM).

The executive branch resolution was published in the official gazette, El Peruano, on Dec. 25, the Christmas Day holiday.

Four army generals, three air force lieutenant-generals, two navy rear admirals and a police inspector general, all of them retired, were appointed members of the Supreme Council of Military Justice (CSJM).

When they met to take up their posts on Nov. 27, the 10 magistrates elected retired Rear Admiral Carlos Enrique Mesa as the next president of the Supreme Military-Police Tribunal, as the CJSM will be known from now on.

The controversial tribunal remains autonomous by virtue of a congressional ruling, instead of becoming a specialist courtroom within the Supreme Court, as proposed by the Office of the Human Rights Ombudswoman, the Constitutional Court and civil society organisations.

Also on Nov. 27, García said the Constitutional Court's objections to the CSJM were no longer valid as the body no longer existed. The law on the Supreme Military-Police Tribunal passed by Congress is in effect, unless and until the Constitutional Court raises an objection, he said.

Among the military judges appointed by García is General Hugo Pow Sang who, as a CSJM magistrate, was involved in a trial of agents of the Army Intelligence Service (SIE) as part of a manoeuvre which ended in an amnesty for the killers.

Pow Sang was also responsible for excluding Fujimori's chief adviser, Vladimiro Montesinos, from the trial, by means of a resolution that was drafted in Montesinos' office in the National Intelligence Service (SIN), according to statements by a former SIN official, Rafael Merino Bartet.

On Feb. 22, 2008, Jhonny Berríos Rojas, a former SIE agent, said at Fujimori's ongoing trial that Pow Sang falsified part of his (Rojas') testimony in order to deny any links between Fujimori and two massacres in Lima, that of Barrios Altos in 1991 in which 15 people were killed at a barbecue, and one in 1992 at La Cantuta University, where nine students and a professor were murdered.

From his position in the CSJM, Pow Sang also ordered the arrest and took part in the trial of retired General Rodolfo Robles Espinoza, who had publicly reported the existence of a special SIE hit group that operated under Montesinos' orders, with Fujimori's knowledge.

Further evidence of his complete dependence on Fujimori and Montesinos was his signature in 1999 of the 'Acta de Sujeción' (Loyalty Pact), under which the military high command promised to make common cause if an attempt was made to bring to justice military officers who participated in Fujimori’s Apr. 5, 1992 'self-coup', and human rights violators then protected by an amnesty law.

Another recently appointed member of the CSJM, retired air force Major General Percy Catacora, was one of the military magistrates who decorated Montesinos in 1997 for defending military privileges.

Catacora took part in the trial of former army insurance broker Gustavo Cesti Hurtado, who was prosecuted by the CSJM in spite of being a civilian.

He was also a witness for the Fujimori government when Cesti's case was brought before the Inter-American Court of Human Rights, which found against the Peruvian state and ordered that Cesti be released.

Police Inspector General Rizal Bragagnini, who was Fujimori's deputy Interior Minister in 1999, one of the worst periods of human rights abuses, is another of those appointed by García and his ministers as a military judge.

On Sept. 29, 2006, the Constitutional Court reaffirmed the competence of the National Council of Magistrates to appoint judges and prosecutors. Later, it declared Congress 'in rebellion' for passing a law on the CSJM that contravened the constitution.

Minister Flores Aráoz said that all the new military judges are retired, in contrast to the recent past, and therefore they owe no obedience to the armed forces commanders.

'Retired officers have been chosen, and this strengthens their independence of action,' the Defence Minister said.

Magdiel Gonzáles, a former member of the Constitutional Court who participated in the resolutions about the CSJM, told IPS that 'appointments of military judges and prosecutors by the head of state are utterly unconstitutional.'

'They violate two rulings, according to which the constitution stipulates that the appointment of members of the CSJM is the prerogative of the National Council of Magistrates,' she said. 'A serious act has been committed, which makes those who appointed the military judges, including President García, liable to constitutional charges.'

The CSJM was used to persecute opponents during the Fujimori regime. General Alberto Arciniega faced a trial for refusing to put members of the military who staged a counter-coup against Fujimori on Nov. 13, 1992 in a prison for common criminals. Arciniega had to take refuge in Argentina.

In April 1995, the CSJM ordered the arrest of retired Generals Carlos Mauricio and Walter Ledesma for their criticisms of the handling of Peruvian troops by General Nicolás Hermoza, the commander-in-chief of the armed forces who practically co-governed with Fujimori and Montesinos, during the brief border war with Ecuador.

The Lima Bar Association has also declared itself against the existence of the CJSM as a body outside the control of the judicial branch. The vice-president of the Bar Association, Luis Lamas Puccio, said he regarded the appointment of military judges by the executive branch as unconstitutional.

'President García is mistaken' in disregarding the rulings of the Constitutional Court that assign the National Council of Magistrates the power to designate 'military judges in the same way as ordinary judges,' Lamas told IPS.

'The appointment of judges is not a political but a jurisdictional decision. Under the rule of law, the statutes should be respected. Military judges should meet the same standards of skills, experience and fitness that apply to judges in ordinary courts. It's a serious mistake,' the lawyer said.

Gonzáles said that 'the president is obliged to comply with the Constitutional Court verdicts as well as any other verdict.' 'In this case, he is breaking the law, and therefore committing an offence against the constitution,' she added.

© Inter Press Service (2008) — All Rights ReservedOriginal source: Inter Press Service

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