Tag Archives: habeas corpus

“The Judge and The General” a Celebration of Chile’s Democracy? Yes.

11 Apr

“The Judge and The General” is a documentary on the criminal investigations of human rights violations, which took place during the military regime of General Augusto Pinochet from 1973 until the early 1990s. More than recording the life-changing investigations of Conservative Judge Juan Guzman, who presided over the investigations, the documentary dramatically shows how Chilean democracy is strengthening and slowly shedding the legacy of authoritarianism.

At the individual level….

The film presents a dilemma on individual responsibility. Can an individual put aside, or transform, his or her worldview when he or she is a witness to government human rights violations?  It questions whether an individual is able and willing to stand up to the injustices committed by governments, even if the individual in question approved of such governments. Can a Chilean supportive of the Pinochet regime acknowledge human rights abuses, just like a German supportive of Hitler’s regime acknowledge the holocaust?

The protagonist of this documentary is Judge Guzman, who is an educated man and a lifelong political conservative mainly because his family belonged to Chile’s Christian Democratic Party and his father was a Chilean diplomat.  Like conservatives of the time he was influenced by the chaos of the early 1970s. Baffled by Salvador Allende’s trips to Castro’s Cuba and his socialist propositions to nationalize private industries, he believed the military led by General Augusto Pinochet was doing the “right thing” by ousting the democratically elected government of Salvador Allende from power. Today, Judge Guzman believes that he would have continued to live in a bubble protected from the truth, had he not been appointed, by lottery, to oversee the allegations of human rights abuses perpetrated by the Chilean military dictatorship. In 1998 when Judge Guzman was appointed to investigate thousands of cases, it was thought that his Christian Democratic background would be an obstacle to the investigations, but instead his loyalty to the law, the justice system, and the overwhelming evidence supporting human rights abuses led him to rule in favor of the victims. The documentary is important because its footage showcases how Judge Guzman was able to present a case against General Augusto Pinochet for human rights abuses committed during the dictatorship.

The importance of the judicial process…

The film also takes the audience into the processes of the civil legal system as practiced in Chile. In this inquisitorial legal system, the judge has to use state resources to gather evidence and make a judgment on accusations facing a legal party. The inquisitorial legal system is different from the adversarial system of law as practiced in the United States. In an adversarial system, two parties, the prosecution and the defense, present and argue their cases to a judge and jury. The judge presiding over a criminal case in the United States acts like a referee between two parties, the jury decides whose argument is best, and finally the judge uses his/her discretion on the type of penalty placed on the individual. In the legal system as it exists in Chile and in many Latin American countries, the role of the judge is more powerful than in the United States because he is an investigator, a prosecutor, and a judge–based on his/her discretion and evidence, he/she decides what penalty to impose on the accused party.

Although covering the legal process may put many people to sleep, showing of the legal process is what makes this documentary interesting, because Judge Guzman with his conservative Christian Democratic background could have blocked each point of the investigation’s process, but he did not. Guzman could have dismissed charges of human rights abuses as propaganda. He could have selectively overlooked evidence pointing at human rights abuses. He could have not interviewed the families of those who had disappeared thirty years before. Even after gathering evidence of human rights abuses, he could have sentenced low-level military officers who committed acts of torture, instead of going for high-level officials who masterminded the whole oppressive operation. Why didn’t Guzman, a conservative judge, obstruct the investigation? This paradox is why the documentary is valuable for students of democratic regimes.

The film is also valuable for those of us studying countries dealing with high levels of violence, and who are trying to grapple with how truth commissions work and are organized. Whereas in Chile the state actively engaged in killing citizens based on their political beliefs, in Colombia armed social groups on the left and the right of the political spectrum have killed citizens based on their political beliefs. Civilian deaths have taken place many times with the complicit knowledge of government officials. The Colombian government under President Alvaro Uribe has attempted to implement a law called the Law of Justice and Peace, to investigate human rights abuses committed mainly by right-wing paramilitary groups such as, the Autodefensas Unidas de Colombia (AUC) during the mid 1990s and early 2000s.  However, the judicial investigations into the crimes perpetrated by the AUC have been limited by small budgets and to date no high level AUC member has been convicted for human rights abuses.  Some high level AUC members have been extradited to the United States for illicit drug trafficking, but none have been convicted for organizing and carrying out systematic massacres throughout Colombia.

The importance of patience…

The lesson this documentary on Chile gives those of us studying Colombia is that patience is a virtue—it may take more than thirty years for the truth to be revealed and for victims of violence to receive respect and compensation for their suffering. Getting to the truth involves dealing with slow moving institutions and astute political leaders such as Augusto Pinochet. For example, before his 2000 detention in England, Chilean democratic governments failed to try him because he was a Senator for life and was protected under parliamentarian immunity.  Once in England, Pinochet avoided being judged in Spain for human rights abuses based on mental incompetence. Upon the General Augusto Pinochet’s return, Judge Juan Guzman accepted the argument posed by the victim’s lawyers to withdraw Pinochet’s immunity, and argued at the Court of Appeals that the ex-dictator should be tried in Chile. However, the court’s ruling was lukewarm. It took away Pinochet’s immunity, but held that he was mentally incapacitated to stand trial.  Still, in a moment of arrogance, Pinochet granted an interview to the television program “Maria Elvira Confronta” a news program, which airs in Miami’s the Mega 22 television network. This 2003 interview allowed Judge Juan Guzman to present the case that Pinochet was mentally fit to stand trial, and this 2006 judgment finally placed Pinochet under house arrest while he waited to be tried.

Democratizing the legal system…

The significance of the documentary is the democratization of Chile’s legal system. “The Judge and the General” highlights the success of the Chilean democratic system and the courage shown by judges and lawyers to uncover the truth. In the new democratic system the judges and lawyers were no longer reduced to mere legal secretaries, who were told to create reports and deny the writ of habeas corpus to “prisoners” that had already been killed by the state’s intelligence organizations.  In the new democratic system, judges and lawyers made their own investigations and made conclusions based on evidence. The investigations made by Judge Juan Guzman and other judges, and their courage to charge General Pinochet with fraud, torture, and murder, allowed the democratic system to remove Pinochet’s criminal immunity and place him on house arrest. Even though Pinochet died in December of 2006 without being tried, these events coupled with the election of Chile’s the first woman Prime Minister Michelle Bachelet (who was imprisoned with her mother during Pinochet’s regime and whose father was tortured and killed) had to personally affect General Augusto Pinochet, because he always thought of himself as someone above the law—an untouchable, who was an “overseer” of Chilean politics. His arrogance was constantly reflected during the documentary in his continual denial of state violence and in his final request to be cremated to avoid his tomb’s desecration.

The legal process shown in the documentary celebrates and strengthens the Chilean democracy, because it shows how the legal process became part of Chilean society, instead of remaining just a dictate given by a military dictatorship. The legal process (however slow or convoluted it may have been) was democratized, as it involved witnesses, victims, the media, lawyers, experts, officers of various courts, and overall Chile’s people even if they continue to be polarized on the topic of Pinochet and his military rule.

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