When George Orwell wrote more than 50 years ago about some animals being more equal than others, his target was the hypocrisy of communist leaders. Today, in at least a dozen Latin American countries, citizens could just as well use Orwell's words describe some of their own political leaders, who have made off with impressive sums or have committed other acts that would quickly land an ordinary citizen in jail. Those leaders are rarely punished or held accountable because their countries' laws allow them to claim immunity as public officials, even in cases of flagrant crime or corruption.
We are not talking here about diplomatic immunity or the kind of immunity a government sometimes offers to protect an individual in return for his or her testimony against others. Instead, under laws that vary somewhat from country to country, all members of the legislative branch, many senior government officials and even mayors and former mayors of small towns are protected by broad immunity from prosecution for any criminal act committed while holding public office (or while holding any title under which the immunity continues).
Immunity is not limited to cases in which an alleged crime relates to the legitimate exercise of a public function. Indeed, officials cannot be prosecuted (or in some instances even investigated) unless -- and this is a major hurdle -- the legislature or the high court of the nation in question formally lifts their immunity after considering a specific charge. This system exists in El Salvador, Nicaragua, Guatemala, Panama, Bolivia, Ecuador, Venezuela and other Latin American countries, including Honduras, which is in the midst of abolishing it.
Laws in these countries either clearly protect officials or are so ambiguous that they can be, and often are, interpreted to protect the accused -- especially if he or she belongs to a powerful political party. The consequences extend far beyond the miscarriage of justice; in many developing countries, immunity laws contribute to a climate of corruption that siphons off as much as 10 percent of the gross domestic product and discourages potential foreign investment, according to Transparency International, a Berlin-based anti-corruption group, and other analysts.
The Inter-American Bar Foundation, which we direct, began to understand the scope of the situation while conducting a State Department-funded project in Honduras in 2002. We were training Honduran prosecutors and officials of the Public Ministry (that country's Department of Justice) to investigate and prosecute cases of official corruption. One of our duties was to assist in drafting a legislative proposal designed to limit the immunity of Honduran officials to those instances in which the officials were acting in the legitimate exercise of their public role. We were taken aback by the scope of the Honduran immunity law. We thought -- and hoped -- that the law was a local idiosyncrasy. But we were wrong. As we spoke with bar leaders from neighboring countries, we realized that the problem was widespread and that the need for reform was acute.
Political immunity exists in many former European colonies and in most of Europe, where it was established during the Middle Ages to protect members of early parliaments and others from the power of the king. Yet, while excesses still arise in Europe -- as recent political immunity cases in Italy and France attest -- protections against the abuse of public office have increasingly found their way into the law and public officials have been held accountable. But in much of Latin America, overly broad immunity laws, weak court systems and, often, a resigned populace have allowed the egregious and illegal behavior of officials to continue with impunity.
Consider several recent prominent cases. Francisco Merino, the former vice president of El Salvador, who remains a member of the legislature, was stopped in 2000 by police, who charged him with driving under the influence of alcohol. According to local news reports, Merino berated the officers, fired his gun and seriously wounded one of them. He was arrested but shortly thereafter was set free based on his claim of parliamentary immunity.
A recent Panamanian case offers a particularly vivid distortion of the purpose of immunity. Carlos Afu, a legislator, announced on television in early 2002 that he and several other legislators had received $6,000 each to vote for a transportation project. On camera, he brazenly waved the bills he said he had received from the project developer. The Panamanian Public Ministry immediately ordered an investigation. But in the end, that country's highly politicized Supreme Court protected the accused. How? The immunity of that country's legislators extends for five days beyond their term of office. The Afu investigation began on the sixth day -- but the court decided, contrary to Panamanian precedent, that the five-day period meant "business days" rather than "calendar days." By the court's calculation, therefore, the investigation was begun while the accused was still immune. And so, in September of last year, the case was ordered closed.
Only a few weeks later, breaking with custom in such matters, U.S. Ambassador Linda Watt publicly spoke out about the need for change in Panama's culture of corruption. She didn't mention this particular case, but the timing seemed to be no coincidence. She lambasted legislative immunity, which, she said, "inevitably becomes impunity."
For a while, her comments caused a dust-up with the Panamanian government over alleged intervention in Panama's internal affairs, but that was many months ago. It appears now that Panama has returned to business as usual.
On rare occasions, politicians have been stripped of their immunity and faced charges, but only after lengthy and expensive legal battles or in cases where the alleged crimes are off the charts.
For example, Arnoldo Aleman, who was president of Nicaragua from 1997 until 2002, was charged in 2002 with defrauding his government of $1.5 million. Since he was no longer president, he invoked his immunity as a member of the legislature and also of the Central American Parliament (Parlacen), which grants all former presidents of participating countries membership for life. After an arduous legal battle and following considerable international pressure, Aleman's immunities were revoked in 2003 and he was prosecuted, found guilty and sentenced to 20 years in prison.
Proceedings to divest Aleman's daughter, Maria Dolores Aleman, of her immunity as a deputy in the assembly and a member of Parlacen have now begun. The reason? She, too, has been charged with crimes against the Nicaraguan treasury.
In another recent case, Cesar Augusto Diaz, a Honduran congressman, was stopped at the Costa Rican border in 2002 for a routine inspection as he was about to enter Nicaragua. According to Honduran news reports, Diaz rammed the roadblock and tried to flee.
He was caught, and he and his car were searched. Police found a considerable amount of U.S. currency and 7.2 kilos of heroin. Diaz invoked his double immunity as a Honduran legislator and a member of Parlacen. In a rare example in which public outrage won out, both the Honduran congress and Parlacen lifted his immunity, making him subject to prosecution.
Alfonso Portillo, who was Guatemalan president until earlier this year, has also been accused of embezzlement and other crimes while in office. According to Guatemalan news reports, he was tipped off to the imminent loss of his Parlacen immunity. He fled to Mexico, where he remains, pending Guatemala's extradition request. Lower-profile cases are, of course, far less likely to result in the lifting of immunity, even for serious malfeasance.
We recognize that there is a need for some form of limited immunity protection closely tied to the legitimate exercise of public functions. Public officials in the United States and many other countries have such protection. But criminal activity and corrupt acts should clearly not be protected.
Until relatively recently, it might legitimately have been argued that the scope of legislative immunity in any particular country was an internal matter. But in 1996, the member countries of the Organization of American States adopted the Inter-American Convention Against Corruption. The convention has been in force since 1997, and has been ratified by 29 countries, including the United States.
The convention makes clear the commitment of signatory nations "to prevent, detect, punish and eradicate corruption in the performance of public functions."
But how can that core language possibly be truly meaningful when those responsible for enforcing it are effectively beyond the reach of the law? Somehow, the immunity system, the proverbial elephant in the room, seems to have escaped notice. It seems that it was never even considered.
If Latin American governments are serious about attacking corruption, it is hard to imagine a more inviting target than these exaggerated immunity laws. Reform would result in immediate progress toward the lofty goals of the convention and would also help to reduce the prevailing cynicism in the region about the principle of equality before the law.
Without such action, it is hard to see how real progress toward fighting corruption among high government officials will ever be achieved.
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