MORE than three-quarters of the 18,000 prisoners struggling to survive in Peru's overcrowded, unsanitary, and often dangerous jails have never been called for trial. But under a system of presidential pardons instituted by President Alberto Fujimori, the first 97 prisoners - long held, but not tried - have been released.
The 97 are the first batch among roughly 2,000 expected to be pardoned as a result of investigations by Mr. Fujimori's new Special Technical Qualifying Commission set up Sept. 15 to review the cases of prisoners who apply for pardons.
Suprisingly, to some observers, the presidential pardon has met with tough opposition from constitutional lawyers here.
The state of the prisons has become a national scandal in recent months. Of Peru's total prison population of more than 18,000, only about 4,000 people have been sentenced. Bribes are routinely demanded to hasten the slow process of actually getting to court. Relatives must also pay duty guards to bring in food to supplement meager rations provided for prisoners.
None of this is new. But it became news when the new President espoused the cause of popular justice in his July 28 inaugural address to the nation, dubbing the seat of the judiciary ``the Palace of Injustice.''
Then, on Sept. 15, he caused a congressional furor by promulgating a supreme decree setting up a special advisory commission to review cases of those awaiting trial, with the aim of personally pardoning many not yet charged.
Signing the decree on a visit to San Jorge prison, Mr. Fujimori claimed that Peru's prison population was ``living in a social limbo ... because the state has always been divorced from society.'' He said also that about 5,000 of Peru's 18,500 prisoners had life-threatening diseases.
About 1,000 of those jailed applied for pardons after the supreme decree. Of those, 600 were rejected for consideration because the charges against them are in the ``serious'' category that include drug trafficking, terrorism, and murder. Another 300 cases are still tied up in red tape, with essential documents lost. `Thumbs up, or thumbs down'
Constitutional lawyers immediately rose up in arms. Former Premier Javier Alva Orlandini accused the president of infringing both the Constitution and Penal Code. Ra'ul Ferrero Costa, head of the Senate Justice Commission, likened the power of pardon to that wielded by a Roman emperor. ``Thumbs up and you're pardoned, thumbs down and you're condemned,'' he says.
On a more recent prison visit, the undaunted president fanned the flames, angering judges by calling them ``jackals'' and ``riffraff.''
Opposing positions were made strikingly clear in a well-attended debate at Lima's Institute for Freedom and Democracy (ILD). ILD president Hernando de Soto - author of an international best seller on the informal economy entitled ``The Other Path'' and a close adviser to Fujimori - is credited with being the inspiration behind the supreme decree that resuscitates the traditional presidential right of pardon.
Normally, pardons have been granted only to those already sentenced. Some jurists claim pardon in advance of trial and sentencing would violate both Constitution and custom. Mr. Ferrero also accused the president of trespassing on legislative and judicial terrain: ``The executive should limit itself to administration.''
But Fujimori argues ``sordid reality clearly proves that society and the state are not at the service of the human being, as demanded by the Constitution.''
Both Ferrero and Alva Orlandini are promoting an alternative law that would enable parliament to decree amnesty for prisoners who have already ``served'' longer awaiting trial than the sentence sought by the prosecution.
Most of the dozens of prisoners interviewed by the Peruvian news media since the controversy broke consider the distinction between pardon and amnesty irrelevant. They just want to get out of prisons like Lima's notorious Lurigancho, where between January and Oct. 1, 64 prisoners died, many from starvation.
``It is vox populi that those who obtain freedom must buy their way out,'' says Hubert Lanssiers, Lurigancho's French-born prison chaplain. ``It is also certain that there is drug and alcohol trafficking in the prison.'' Women, children in prison
Of 643 women inmates of Chorrillos prison in Lima, only 117 have received sentences. Yet there are 168 children permanently accompanying their legally innocent mothers in the inadequate living quarters, because they have no one else.
One 29-year-old, accused of selling cocaine-base cigarettes on the street and already incarcerated for more than three years along with her two children, told a not uncommon tale of sexual blackmail. ``I was told if I slept with the judge, my chances of getting the case heard soon would be better,'' she says. ``Otherwise I'd have to pay $200. I have no money. What do I do?''
Most Peruvian jurists agree that the presidential pardon would only be a palliative, because an overhaul of the entire justice system is long overdue. ``The state should serve the individual,'' says Peruvian law professor Jos'e Hurtado Pozos. ``The current situation of Peru's prisons violates every basic human right.''
The state is violating its own Constitution, too. The judicial system is constitutionally entitled to financing equal to 2 percent of the country's annual budget. In practice, in the last 10 years, it has never received even half of that, according to Elo Espinosa, president of the Supreme Court. Judges receive less than $200 a month and court clerks a third of that - making bribe-taking a virtual necessity.
Whatever the eventual resolution of the legal debate, the president's controversial decree has put penal reform squarely on Peru's political agenda.
``For the first time there seems to be some hope for us - maybe we will get out of this hell alive,'' says a Lurigancho inmate.