Nicaragua's tribunals sidestep confines of outmoded judicial code

The Popular Anti-Somocista Tribunal currently trying captured American flier Eugene Hasenfus is an illustration of the contradictions and confusion besetting the Nicaraguan judicial system, lawyers and officials here acknowledge. But, several years after the 1979 Sandinista revolution, the task of resolving such problems has scarcely begun.

Tribunals of this kind are not within the ambit of the Supreme Court, and their rulings are not appealable in the normal judicial system. This runs counter to normal judicial practice, says Nicaraguan law professor Victor Manuel Ordonez. But, he adds, the tribunals were set up to deal with a specific problem the revolution faced - a threat to national security - faster than the normal courts.

Such thinking has led to the creation of other less controversial courts, also outside the judicial system, to deal with issues particularly sensitive for the Sandinistas. Such courts deal with land reform disputes, housing issues, labor problems, and social security claims more quickly than the traditional court system.

The tribunals reflect what Supreme Court president Alejandro Serrano Caldera calls ``the contradiction between reality and law'' since the 1979 Sandinista revolution. Old law and old administration systems became inappropriate, he argues. ``The problem of law in revolution is above all a structural one, of reconciling the different natures of the revolution's political and social dynamics with the law's static character.''

When circumstances change radically, as in a revolution, says Judge Serrano, ``reality inevitably clashes with the stability of law, which becomes a straitjacket.''

The limitations of Nicaraguan law had become obvious even before the revolution, says Justice Minister Rodrigo Reyes Portocarrero. With the penal code dating from 1879, the whole system is outmoded. Some piecemeal reforms have been made, Minister Reyes says, ``but reforming the central codes ... is very complicated,'' and will need a lot of ``time, study, and experience.''

The Supreme Court has made a tentative start, drafting a new criminal procedure code to modernize and accelerate the trial process through two innovations.

First, evidence and statements in trials would no longer be written, as now, but spoken. ``That is the most profound change,'' says Reyes. ``The process would be more open, evidence would be much more immediate, and it would all be quicker.''

Second, in a bid to ensure ``popular participation'' in administering justice, two of the three judges on a court bench would be lay persons, though named by the Supreme Court.

``We hope this will combine popular wisdom with technical mastery of the rules of law ..., benefiting the administration of justice in general,'' says Serrano.

Professor Ordonez, however, fears that oral trials will be more expensive and this means they will not be introduced for a long time. Reyes shares this fear.

``We are aware we have serious problems, but I don't see how we can resolve the situation because we don't have the money,'' says Reyes. ``I hope when the war [with anti-Sandinista rebels] is over we will be able to make a qualitative leap, but it's difficult while there is a war on.''

Meanwhile, Reyes explains, the government has simply sidestepped the need to make its political will conform to existing law and has instead ruled largely by decree.

Decrees, and the special jurisdictions created, have lent flexibility in governing, but they have complicated the life of a judge. Judges now have to work with both old and revolutionary laws, which often contradict one another - a difficulty compounded by the lack of trained judges.

After the revolution, recalls Ordonez, ``not a single judge was left in the country.'' New judges, named hastily from the ranks of Nicaraguan lawyers, ``were used to litigating against a system, and suddenly found themselves part of one.''

``It won't be enough to formally draw up new law appropriate for the demands of our revolution,'' warns Serrano. ``It will be absolutely necessary to train the technical resources needed to apply it.'' And that task, he adds, will take many years.

The country's fundamental law, the Constitution, is due to be completed by the end of this year. But it will have little immediate effect on the judicial system, lawyers say. ``The Constitution is eminently political, rather than juridical,'' says Ordonez. ``It will be setting out political principles.''

But once the Constitution is in place, the Assembly's judicial committee, together with the Supreme Court and the Ministry of Justice, is due to start work on judicial code reform. ``But we will have to go very slowly,'' cautions Mr. Ram'irez. ``Reforming a code of law is serious business.''

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