Gabriel Álvarez is one of the foremost constitutional experts in the country, and in this interview addresses the three recent laws that the opposition claim are designed to provide the government with new tools for punished expressions of opposition to the regime: The law for the Regulation of Foreign Agents, the Cybercrimes law, and the law establishing life sentences.
Gabriel Álvarez: “The privacy of everyone is in danger”
By Abixael Mogollón in La Prensa, Nov 15, 2020
The constitutional lawyer states that the “cybercrime” and “Foreign agent” laws cause him more concern that the approval of the life sentence law. In addition, he explains whether a future government could try the Ortega-Murillos for crimes committed against Nicaraguans.
The dictatorship of Daniel Ortega is aimed at becoming perpetual, and that is why they have been obstinate in creating a series of laws that threaten fundamental rights.
The constitutional lawyer Gabriel Álvarez continues to be surprised by these measures of Ortega Murillo. He recognizes that “they have creativity in repressing.”
Álvarez is a devotee of Law and has followed very closely the latest movements of the regime in this sense.
In this interview he states that the laws of “cybercrimes” and “foreign agents” cause him more concern than the approval of the lifetime sentence law. He also offers his analysis about how the justice system of Nicaragua has been destroyed in the last 40 years and offers a solution to this enormous problem. In addition, he explains whether a future government would be able to try the Ortega-Murillos for crimes perpetrated against Nicaraguans.
When they approved the life sentence law, a lot of people said that that very law could be applied to Ortega.
This responds to more emotional matters. What a democratic government after Ortega must do is create an independent judicial branch, create humanistic and reasonable laws, that would ensure due process to all those who are accused of crimes. If we think now that life sentences are bad and not necessary, I think that to be minimally consistent we should think that nor is it appropriate and necessary to apply them to those who are ruling now. I think that afterwards the country should enter into a dynamic of reconciliation and that does not mean impunity. And they (the dictatorship) themselves have said it, that whoever has to respond before justice must do so. What is most important is seek to have an independent judicial branch, laws that recover the judiciousness that has been lost and applying due process without vindictiveness.
Do you think that the next government could begin a macro-investigation to try those responsible for crimes against Nicaraguans?
I think that Nicaraguan society need to truly heal its wounds. Healing the wounds means, first of all, knowing the truth of what has happened. Covering up those types of things which we have been suffering for years cannot continue, since 1979 to now, and even before that year. I think that starting immediately with a witch hunt would not be the best. The institutional conditions have to be created so that those who have to respond for the acts committed do respond. But if we think that with vindictiveness, or treating people the way they treated you, we are going to build a stable society with sustainability and prosperity, it seems to me that that is not what is most important. First is the truth, the families of the victims, the political prisoners and Nicaraguan society should know the truth. It is also important to make amends to the victims and non-repetition. They are basic concepts of justice. More difficult is whether these people are going to allow a transition that would mean jail, that is difficult, but that is what Nicaraguan society wants. And I do not see it in the short term.
You do not see Daniel Ortega and Rosario Murillo being put on trial?
It is not that I do not see it, what I do not see are the conditions in the judicial branch or the Public Prosecutor´s Office, nor in the Police for that to be possible.
On an international level?
On the international level it is possible. There are those who argue for universal jurisdiction and if they (Ortega and Murillo) leave and a country captures and processes them, it can happen. But I cannot say what the countries might consider. From a theoretical point of view, it is possible. I would like to promote the idea, and I am a defender of the idea, that the problems of Nicaraguans should be resolved by Nicaraguans. So much so that one of the critiques that I have of the opposition leaders is that many of them depend on orientations and support that other countries provide them in solidarity. International jurisdiction does not bother me, I think that it is something that is very deeply rooted in democratic countries, but I think that I am more concerned to create the institutional conditions so that justice can be imparted here.
What is the worst of this entire legal framework invented by the dictatorship?
The worst of it all are not the laws in themselves, which are already very dangerous and damaging in legal terms. The worst is the state apparatus that is going to apply them. If these laws – which are very questionable – would be applied by an independent judicial branch, independent and impartial judges, courts that act in accordance with constitutional precedent and legislation, these laws would see their enormous potential for danger to the rights of Nicaraguans be diminished.
Everything seems to indicate that since Ortega returned to power he had been preparing the path to stay in power.
I am going to go back to a little before that. In retrospective, we can see that the people who are governing now never intended to promote a democratic regime. From a constitutional point of view, yes, there was a democratic regime, with its nuances and its biases of what some authors call the tradition of the Latin American left, but with another important component which is the democratic liberal tradition. That was what was written down in the Constitution of 1987. But it was suspended with the war, and in practice was never able to be implemented. In 1990 a political and legal effort was made that was written into the reform of 1995, which tried to reposition the constitutional order. Between 1990 and 2000 progress was made in that encounter between democracy and the Rule of Law.
When did this process break down?
I think with the pact between Daniel Ortega and Arnoldo Alemán. The deterioration started there and a reversal of that process of reencounter with democracy that began in 1990. This began in 2000 and goes until 2007. This pact was very important. The situations that happened, above all in the judicial branch, where the judicial benches divided into half and half, allowed rulings to be made in favor or against which produced a definitive effect based on the political interests of the Sandinista Front and the Liberal Constitutional Party (PLC). Then in 2007 begins a concentration of de facto power and then a reelection is carried out through a ruling. That is why I always talk about the judicial branch. It was an unconstitutional reelection.
And how would you describe the current situation?
It is at the point of climax and generalized Kafkian madness. Pardon the term, but we have arrived at a situation that has no reference point, nor any political, legal nor institutional logic, but deals with imposing the personal will of president Ortega and vice president Murillo. Violating all types of rights, legislation, principles of legality, division of powers. From 2018 to now, first de facto and now wanting to legalize the legal instruments, they are preparing themselves for eventual political, pre-electoral, electoral and post-electoral scenarios. Those laws are being enacted that, in some way, supposedly are to provide a legal basis for behaviors that are violating constitutional rights. In summary, these three laws are the normative expression of the political will of remaining in power for perpetuity. Whether they achieve it is something else.
Something that is very noteworthy about these three laws of the regime is the impressive ambiguity with which they were written. For example, who can decide whether something generates terror in the population?
That is one of the technical errors, the fact that they try to conceal a political resolve and provide more instruments of repression to the legal operators. What the excessive use of very broad and ambiguous concepts does is increase the discretion of those who apply the law. We see this in the three laws, in the one on foreign agents, the law of cybercrimes, and in this constitutional reform initiative that was now approved in the first legislature. The three contain a terrible legislative technique, but this is not just due to a simple mistake, but it is on purpose.
If you had to say which of these laws does more damage to the country and the citizens, which would it be?
It is tempting and easy to say that all three, but I would venture to be less concerned about the constitutional reform of life sentences. It might sound strange, but they are going to apply it, and it could be in order to have elements to exchange in an eventual negotiation. Nevertheless, the rights of political participation and association which, in my judgement, are seen to be seriously threatened with the Law for the Regulation of Foreign Agents and the rights of free expression, access to information and others are going to be impaired now. These rights can be a type of support of the rest of constitutional rights and systems. Life sentencing is intimidating, but since the judicial system allows people to spend the time [in jail] that those who run the system want, not necessary.
They say that sentence policies are never followed.
Marvin Vargas, who they call El Cachorro, has spent years there [in jail] and the truth is that it was never made clear the crime that he initially committed and then, while in jail, they accused him of another crime. This is without life sentencing, so it is that people here go [to jail] for political reasons and leave it for political reasons. In contrast, donors and aid agencies are already making plans to leave. Others may be thinking now of leaving organizations, of no longer participating politically nor in social networks. When Dr Pedro Joaquín Chamorro Cardenal used to say that without freedom of the press there is no freedom, he was giving preferential weight and position to the freedom of the press, and this was not a political slogan or an appropriate phrase, it expressed a profound awareness of Dr. Chamorro about the functioning of a Democratic Rule of Law. So, when you attack the freedom of the press and expression, I believe that you are attacking the hard nucleus of the Democratic Rule of Law.
It gives the impression that absolutely everyone, including the Sandinistas themselves, we are all helpless.
Freedom of association, political participation, expression and information and press are all in check. And I do not mean check mate, because the people are in resistance and journalists and independent media also are in resistance. I see this as serious.
The Cybercrime Law empowers the authorities to ask for data from internet providers, they can even go into the server or home and take their computer, hard disks and more. It even is an attack against the right to privacy.
In addition, that there is a judicial intervention. The Police or the Public Prosecutor can ask a judge to authorize this type of pretty invasive measures in the sphere of personal liberty. Nevertheless, I go back to the same initial point from before, we have a deficient judicial branch. They put it in the law to present it to the international audience and say that there are judicial guarantees, and that is what is normal in other countries, but here it does not work in this way, because almost always they resort to later validation, and the judicial branch is not composed of independent or impartial judges and courts. Being very clear about the superlative importance of privacy, which even could affect the dignity of the human person, which is a higher value in the constitutional ordering of any plural, free and open society. The privacy of everyone is at risk because of the reasons or lack of reasons that may occur to any official.
What is left for this dictatorship to invent or turn into law?
I am a defender of constitutional channels, and peaceful channels and this has no other translation than electoral channels. I believe that the regime of Ortega and Murillo is strategically and irreversibly beaten. This does not mean that it will soon be replaced by a democratic regime. It means, in my opinion, that they no longer have the capacity to go back or recover the levels of social stability of before, nor economic growth, and much less in the political sphere. For some years many of us were saying and criticizing that undermining the bases for a Democratic State and Rule of Law was going to produce a collapse sooner or later. So, they are no longer going to be able to salvage this authoritarian model that existed. It can be maintained, depending on the credibility and support from the international community that the opposition may have, but it is not possible to go back to the old model. We will be delaying the departure, but the model cannot subsist, and even less, through the ways that Ortega is choosing. The Nicaraguan people should be fully clear that effectively an entire normative machinery is being assembled or was already assembled which constitutes a true threat to the exercise of their rights, and that those responsible for this do not want a democratic transition, but that is a political decision and, as such, it can change.
“If there is something that you have to recognize about the regime it is their creativity whenever it takes a step of absolute repression. “
How do you see the opposition?”
I see it as very weak. It has its grey areas, as everything, and it has its merits. In general, it is an opposition and I think that it has not been able to subdue Daniel Ortega, who is accustomed to negotiating with people and institutions with whom he quickly finds their price. I think they have been brave and have demonstrated a willingness to seek a change, but I also think that they have committed mistakes that they are trying to overcome, it is so complex that committing those mistakes is inevitable.At some moments a pretty elemental lack of vision has been observed. You do not need to be a great political strategist to realize that they are committing mistakes. I see them in their lowest moments.
You spoke about creating the conditions to impart real justice in the country. How are those conditions created?
The first is that we Nicaraguans are very short-term, and this [situation] shows that it does not work. They are not able to in other countries and much less in ours, I think that this has to be gradual. This is a political issue and implies carrying out negotiations and approaches. It implies saying at times things that not everyone wants to hear, because everyone hopes that they say that Ortega and Murillo are arrested and we will have complete democracy, but politically that is not realistic. That is why we have fallen into a vicious circle, every thirty or forty years there is a dictator. I think that the judicial branch is what is most important so that in the medium term those conditions might be created.
What do you think about this judicial branch?
It has all the characteristics that it should not have. I have friends, colleagues and students there, but I must say categorically that the political instrumentalization and manipulation of the judicial branch were the first chess moves of Ortega to construct what today exists in Nicaragua.
Personal Plane
Gabriel Álvarez Argüello was born in León, he is 55 years old. He specialized in public law, he studied in Costa Rica and Barcelona. He has been a professor in public and private universities. He is married and has two children, one of them studies Law and is about to graduate. His grandfather and his father were also lawyers. As a young man he liked soccer and loves sports in general. He is grateful for the support that professors Miguel Ángel Aparicio, Joan Vintró Castells and Eliseo Aja have given him. Thanks to them he was able to leave the country to study.