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Public Hearing on anti-Terrorist Legislation and Violation of Due Process
Speech by TRC President

Mrs. Mary Robinson,
High Commissioner of the United Nations on Human Rights,
Ladies and Gentlemen,

Today we inaugurate the sixth public hearing of the Truth and Reconciliation Commission, a ceremony which is the first devoted to a specific aspect of the drama suffered by the Peruvian nation in the last two decades. This audience, indeed, has a topical character and is aimed at gathering the testimonies and reflections on the judicial treatment given to those accused of terrorism, a procedure that from a certain point in time and under the excuse of effectively fighting subversion, promoted the violation of numerous Peruvians’ elementary rights and denatured our democracy and Rule of Law.

Hundreds of innocent prisoners, sentences issued without the accused being able to defend himself/herself, sentenced that did not reasonably correspond with the committed crime, suspension of the population’s basic rights — these are some of the results of an anti-subversive legislation that accumulated along several years and which most critical expression were the anti-terrorist laws passed in 1992. We are convinced that a serious, impartial and exhaustive consideration of the hard period of violence suffered by the country cannot put aside this issue, undoubtedly, sensitive, but at the same time inescapable.

What do Democracies Defend?
It is true that, after the laws passed within the framework of the Coup d’état in 1992, the terrorist organizations collapsed after its main leaders were put to prison. However, it is not less true that in that same process thousands of Peruvians had to suffer abuse from the State, transgressions that in many cases were translated into long confinement years in inhuman jails without having committed any crime. Therefore, comprehensive and honest treatment of the violence period suffered by our country also has to ask —as we shall do now— if, to end with violence, it was indispensable to submit ourselves to laws against the Rule of Law. We must emphasize the contradiction here, if to defend democracy it was necessary to deny democracy.

The concern expressed in this hearing must not be confused with a petition of indulgence or lenience before terrorist acts which for more than twenty years annihilated thousands of human lives, caused enormous suffering to the population and finished by making our country still poorer. Any act or organization attempting against the Peruvians’ right to live —and to live in peace— merits our clear and unreserved rejection. We are convinced that every democratic state is obliged to make its institutions work to defend its citizens against the aggression of those who want to substitute the Rule of Law by the Rule of Force.

Although democracies certainly have the right and the duty of defending themselves, it is equally necessary to always remember what they are defending. In fact, we must first preserve human life and integrity. But that is not all: by defending themselves, democracies must care for a certain way of life ruled by the principles of justice, equity, respect to the human person and tolerance. Thus, we protect a fair social arrangement, a cohabitation regimen in which respect for our freedom and dignity of persons and citizens is always guaranteed. Therefore, we understand that democracies must defend themselves, but that the worst way to do so is by fighting barbarity with barbarity.

In more than one occasion, democracy has been pointed out as the fairest political order known, while at the same time the weakest, the least apt to defend itself from those who want to annihilate it. This is a shocking but true statement and it is not difficult to understand it. In fact, the reason of being of every democracy is providing those who live in it with a system of liberty, a tissue of guarantees and rights that protects them from any power abuse. Those liberties, those guarantees and those rights are inevitably invoked and used in their own benefit by those who, without believing in them or being ready to respect them, work in a clandestine or open way to topple the Rule of Law. But does this mean that democracies must deny their principles to defend themselves? Only those who think that liberties and rights are mere superficial ornaments of democracy and civilized cohabitation could think so. But for those of us who understand that they are the substance itself of a fair political order turning our backs to these principles to preserve the so-called public order is the worst treason that democracy can inflict itself and the greatest triumph it can grant to its adversaries.

Was anti-Democratic Response an Effective Response?
Once this is understood, it is very relevant to reflect about justice, the validity and even the effectiveness of the judicial framework and practices regarding the terrorism and subversion that ruled in the last years and that are still in force. Can we qualify a system as just or even effective if, on the one hand, it condemned and correctly confined many guilty in prison and, on the other hand, did the same against hundreds of innocents? How can we understand that the same State that issued extremely severe sentences had to constitute an ad hoc commission to grant pardon and that in three years and a half it found almost six hundred prisoners who were innocent of any crime?

To understand and adopt an adequate perspective vis-à-vis these contradictions, we must, in principle, emancipate from the ideology of State security understood as a supreme end to which even human rights can be subordinated. Human rights are the juridical expression of the powers and liberties rational, fair and most of all dignified life permit us to access. When society permits State security to prevail over the rights of people, when public order is conceived as a superior good different from citizens’ liberties, we are speaking about a democracy that has somehow been partially defeated by its adversaries because, perhaps, inadvertently, it consented in identifying itself with their methods and principles, or to be more exact with their lack of principles.

The challenge of justice within a democratic system is, then, extremely sensitive and in these hearings we will see how our institutions and rulers did not know how to cope with this challenge. They could not do so and we could not do so because we accepted defense methods conceived from the reductive and excluding perspective of State security. These procedures were from birth contrary to principles regarding the most elementary human rights.

In Peru, a juridical framework and more precisely a criminal regime divorced from basic principles such as legality was established and so shall we see in this hearing. In the anguishing climate of the 80’s and 90’s, the political power imposed judicial procedures that impeded those accused to exercise their right to due process and within it the right to advocacy. A fast lane justice that responded to the generalized fear with quick sentences imposed to people who often did not understand what crime they were being accused of, ended by leaving us in the hands of arbitrariness and abuse. This denial of justice, as we know, often viciously attacks the weakest, poorest and less socially considered people of our country, the same people who were mostly the victims of the violence that scourged our country.

Just to simply synthesize the extension of violence that was our judicial system, let us remember how we forgot the other basic principle of exercising law well by the necessary correspondence between sanction and gravity of crime, a principle that was substituted by sanctions that were often disproportionate, a practice that was always against the democratic order we aspire to cultivate and to take root in our country, even though at that time it seemed to respond to the people’s claims.

A Denial of Justice
Consequently, we must understand that Peru has lived under a state of denial of justice, understood in its right sense. Justice is not an ethereal value that is exhausted by an abstract or ideal definition. Justice, if it is human justice, is incarnated in its practical application, in its administration by the men and women who assumed jurisdictional functions as their task and duty. This value we call justice is not confused with judicial practice, but does not exist without it either. Therefore, when the roads followed so that justice is effective are not the appropriate ones, the value of justice itself suffers deterioration, distortion and this is expressed in the suffering of concrete beings, in people who see their rights abused and the deterioration of citizens’ lives all over society. From being free citizens provided with rights, we all become suspects, potential accused obliged to demonstrate our innocence before judges and prosecutors who, disavowing the nature of their vocation, stop advocating for our rights to become our aggressors.

Those who administer justice can reclaim that important function, because society has bestowed them the power of judging. But let us strip this word of a strictly forensic meaning for a moment and consider its roots and philosophic meaning. Judging is not, in fact, the same as passing sentence. Who judges, practices his/her capacity of judgment. It is not just an individual aiming at passing sentence. His/her matter and mission are higher and more complex. The one who judges reflects about pleas, facts and circumstances, appreciates arguments and information, values the tests and signs offered him/her, looks for logical connections between the pieces of evidence he/she has gotten. In brief, he/she who judges wants to attain the truth before sentencing, a truth that cannot come up but from the correct appreciation of facts and circumstances.

Can Democracies Be Defended?
We want to rescue a more humane understanding of justice. Justice cannot be that blind machinery about the realities of people and facts that anti-democratic States implement to get rid of their enemies. The countries that love democracy have created in the last decades an international law system through agreements, covenants, treaties which final objective is to ensure that the States, when they defend themselves, do so respecting —that is also defending— their citizens, who are their reason of being, their supreme end, as several constitutions declare. Peru has —and we remember this with pride and hope— signed many of those treaties, hence, it is obliged to adapt its legislation to those basic criteria of humanitarianism and right to the integrity and dignity of people adopted by the international community.

Now, is it possible to fight from democracy and therefore within an impeccable, juridical framework, against those who precisely seek to topple democracy? We must recognize this question is very hard to answer. But we clearly answer by saying that it is not only possible to do so, but that it is actually the only way in which democracy can defend itself and save itself. Adopting barbaric methods, as we have said, is the worst defeat for democracy, a defeat disguised as success, a moral and spiritual defeat, a defeat we inflict to ourselves.

A TRC Duty
Dear friends,
We are aware that by approaching this issue we are facing an extremely complex and thorny subject that affects our sensitivity and, especially, that of those who were directly hurt by attacks or other aggressions to their elementary rights during the years of violence. We want to tell them that we are not promoting indulgence for those who were provenly responsible for affecting the life or physical integrity of Peruvians. On the contrary, we are thinking about our countrymen who without having committed any crime, were unfairly condemned. We are thinking about those who did not have the right to defend themselves, about those who were not able to access a fair judicial process as the one all the citizens in this country are entitled to.

The Truth and Reconciliation Commission must frankly examine the experience lived through and clearly speak to Peruvians about what happened in those years. We would not comply with our endeavor, we would not honor our commitment if we somehow eluded this process because of a political opportunity or because we believed that the Peruvian society is not ready to face it. We have stated in more than one occasion that the self examination our society has performed is hard and complex and that citizens, by expressing they back us in many ways, have authorized us to carry it out. This is why we are sure that the subject we present you today in this hearing will be correctly understood and reflected and we are convinced that this understanding, this selective examination shall become a step ahead towards the consolidation of a fair and democratic society.

We live in a world harassed by multiple conflicts, deformed by innumerable transgressions, by the abusive use of force from the State against the people whom they should defend. We want these hearings to be at the same time one more step towards the collective introspection Peruvians carry out and a message to the international community: we cannot fight barbarity by becoming its echo; it is not admissible to defend our democracy by renouncing to the Rule of Law. The experience Peruvians have lived through, and that we now remember, is somehow the defeat in the challenge of defending democracy within democracy, of defending the law with unrestricted respect for the law . We did not know how to answer this challenge, and the price of this failure was paid and is still being paid by many humble citizens. Now it is our task to put our intelligence and imagination for an endeavor that cannot be postponed: finding a way to defend the Rule of Law without betraying it. This is certainly a hard search that will lead us by uncertain and slippery ground, but we know today that the other road cannot be defended and is intolerable.

With the certainty that this meeting will be a valuable contribution in that search and towards recovering the civic and moral health of our country, I declare opened the sixth public hearing of the Truth and Reconciliation Commission.

Salomón Lerner Febres
Truth and Reconciliation Commission

“ This Commission was able to identify 567 innocent prisoners (among, pardoned recommended and with favorable report)”.
De la Jara, Ernesto. Memoria y batalla en nombre de los inocentes. Peru 1992-2001. Summary. Ideele Nº 141, October 2001.