Envío Digital
Central American University - UCA  
  Number 204 | Julio 1998



Immunity and Impunity: De Facto or Legal?

The juridical, political and ethical implications of the immunity that protects public functionaries has in recent months been at the center of public opinion and debate in Nicaragua. The jurist Ernesto Castillo shared with envío his views on some of the legal and historical aspects of the topic.

Ernesto Castillo Martínez

IN THE ABSOLUTIST MONARCHICAL SYSTEMS THE KING WAS THE ONLY PERSON who did not have to answer to his subjects for his actions. The king responded only to God. As the author of laws, he was not subject to them and thus had no legal responsibility in the exercise of power. He was cloaked in impunity.

First Concept of Immunity: Trial by Peers

To be "untouchable" was a royal privilege that the king transferred to no one else, not even his delegate or representative. Viceroys, captains general and governors of the colonial era, each of whom fully represented the king, could be subjected to what were called residency trials, which were common given the excesses of some colonial governors. Such was the case of Pedrarias Dávila, initiator of an exercise of power in Nicaragua based on outrageous abuses.

Starting in the 14th century, Britain's members of parliament obtained from the king the concession of being tried only by their peers, their parliamentary colleagues. Thus emerged the first concept of immunity: the privilege of not being judged by ordinary courts without Parliament's approval or of enjoying a special power to be judged exclusively by Parliament itself. One definition of the Spanish term "fuero" (privilege or jurisdiction), from which immunity originated, is "the privilege of certain persons to be judged by courts of their class and not by common justice."

Different Systems of Accountability

Despite all the privileges that protected kings during the monarchies, people found ways of rebelling against absolutism by making royal heads roll. Among others, they saw to it that Charles I of England, and both Luis XVI and Marie Antoinette of France were thus punished. The latter was judged by a special court and sentenced by the Assembly for the crime of sexually abusing her youngest son, the Dauphin, who, after testifying against her, disappeared and was never heard of again.

Under the rule of law, the governed should be able to challenge the arbitrary and illegal actions of those who govern them without resorting to such drastic means. Furthermore, a system of responsibilities should be clearly established for public functionaries when they act in such ways.

The aim of fuero parliamentario, or parliamentary privilege, is to protect the office, not the person; in other words, to maintain the balance among the branches of state so that governmental institutions can function normally within the democratic regime. Immunity is only justified by giving legislators the freedom they need to carry out their duties; it does not mean they are not responsible for their private actions.

Parliamentary privilege operates under two constitutional aspects: the privilege of immunity and the right not to be processed in common courts. Officials who enjoy immunity are still responsible for common and official crimes committed while in their posts. But such charges against them cannot be heard as long as they remain in office unless they are stripped of their immunity, since it is the impediment preventing the common courts from trying them.

The parliament—or legislative body by whatever name—of a country that grants this privilege must decide whether or not the charge fits the conditions for proceeding legally against the public official. If the decision is negative, the official retains the privilege and the prerogative of not standing trial. If it is determined that there is cause, the official is separated from his or her position—that is, stripped of immunity and subjected to the jurisdiction of the common courts. When parliament decides to strip an official of immunity for this purpose, it is called "forejudgment." If the crime is an "official" one, the now non-immune official is judged by a jury made up of members of the legislative branch or by the Supreme Court.

A negative decision by the parliament is no obstacle to charging the official once he or she is no longer in office and thus no longer protected by immunity. By deciding whether or not to take away immunity, the Parliament is neither absolving nor condemning; it is making no judgment about penal responsibility. It is only carrying out an action indispensable to the accused being tried in an ordinary court.

Not all Constitutions grant parliamentary immunity. In Mexico's Constitution, for example, senators and representatives are exempt from responsibility only for opinions they express in the exercise of their duties. The logic of this disposition is to guarantee them absolute freedom of expression, without the risk of being accused of slander.

In an exception to this, the Mexican Constitution does grant the President of the Republic relative immunity. The language of this privilege is that "during his term of office he may be accused only of treason and grave crimes against the common order." This is an attempt to protect the President from being accused of official crimes, but in no way from being accused of common crimes. Nicaragua's Constitution grants special immunity only to the President and Vice President, and if they lose it, only the Supreme Court may try them.

In the majority of countries that grant parliamentary immunity, it only applies while the legislator is in office, making it clear that immunity is considered linked to the exercise of that function and is not a personal privilege. Immunity is granted not for being a senator or representative, but only when functioning as such. That is why, once the person no longer holds an office that offers immunity, he or she may be tried.

Nicaragua's Use of Immunity

Nicaragua's first Constitution, in 1826, adopted the same criteria as Mexico's, by including the inviolability of representatives' opinions, issued orally or in written form. The same disposition was included in the Constitutions of 1838, 1848, 1950, 1974 and 1987. Our first Constitution did not give special fuero or immunity to parliamentarians. As for top state officials, it determined that a criminal charge may be filed against the Director of State for crimes involving penalties that are more than correctional.

Nicaragua's first Director of State, Manual Antonio de la Cerda, was executed by a firing squad in Rivas on November 29, 1828, after being indicted by the deputy chief, Juan Argüello. De la Cerda had rebelled after completing the term set by the 1826 Constitution, and was imprisoned. Even though he was still a legislator, due process relating to his immunity was not followed, and he was condemned.

Article 67 of the 1858 Constitution, in listing the posts that enjoy immunity and whose holders would have to be stripped of that immunity to be tried, stated that "any civil authority may draft the corresponding indictment for common crimes, according to the established rules, informing the Congress." Article 68 again established that "the President may be tried during his term in office for common crimes meriting more than correctional penalties." This was a clear attempt to prevent immunity from protecting the common crimes of any official, including the President.

In the 19th century, during the thirty-year period of Conservative governments, common citizens who took part in insurrections against the government, actively or as collaborators, put their lives at risk. By law, military officers had the authority to execute them by firing squad, with no more paperwork than offering them, as condemned people, the right to a confessor. In these cases, the officers went unpunished for any abuses they committed, unless their own superiors decided to sanction them. The legal justification was the declaration of a state of emergency.

In the period of General José Santos Zelaya's Liberal government, at the turn of the century, one cabinet minister resolved to sanction another charged with drugging his wife in order to sexually abuse her. The former carried out the sanction by killing the latter at gunpoint. Neither of the two relied on the law. The accused did not renounce his immunity to present himself before the courts and the aggressor chose private revenge rather than charge him as stipulated in the Constitution.

It has been common in Nicaragua's history to take away immunity for political crimes. On March 10, 1885, the Congress of the Republic decreed after a political trial that Magistrate Francisco Baca and two representatives, Fernando Sánchez and another also named Francisco Baca, were traitors to the country. On January 12, 1926, a joint session of Congress decreed Juan Bautista Sacasa, Vice President of the Republic, guilty of the political crime of conspiring against the peace and security of the state. He was sentenced to separation from his post and exile from national territory for two years.

Almost all Constitutions establish a special immunity for military officers accused of military crimes, subjecting them to ordinary courts only for common crimes. In a Concordat with the Vatican in 1862, Nicaragua agreed to a special immunity for a different select group: the clergy would not be subjected to the common courts. Between 1862 and 1893 the state decided any case involving clergy members. The Concordat ended with the Liberal Constitution of 1893. Since that date, any cases of legal problems involving members of the clergy are subject to negotiations between the religious hierarchy and civil authorities. A famous case occurred in 1873, in which the children of a priest who died without leaving a will could not claim their inheritance based on canon law. The Congress of the Republic helped them by declaring them legitimate heirs, even though they were "illegitimate children" because they were born out of wedlock.

Confusing Immunity With Impunity

Starting with the dictatorship of Somoza García, legislation began to confuse immunity with impunity. The 1974 Constitution even determined that immunity could not be renounced. Despite this rigidity, Somoza had two government functionaries processed: one for rape and another for having killed a person in a brothel.

The Fundamental Statute passed into law by the revolutionary government in 1979 did not establish immunity for any position. Its article 7 said that "the unconditional equality of all Nicaraguans will be established." On June 14, 1980, however, the Sandinista government issued Decree 441, establishing broad immunity for high-level state officials. Since the ordinary laws from before the revolution had not yet been replaced, the doors were still open to take to court revolutionary leaders who implemented emergency measures outside of those laws.

Law 83, passed on March 21, 1990, after the FSLN lost the elections, extends immunity to former Presidents and Vice Presidents elected since 1984. This same law gives those who have occupied both posts a pension equal to the salary of the Presidents and Vice Presidents currently in power. It also grants immunity to former legislators for one year after leaving their posts. With this law, the Sandinistas tried to prevent the incoming government from holding outgoing officials responsible for the abuses committed after the 1990 elections that came to be known as the "piñata."
In Nicaragua no new law is needed to understand that immunity is directly related to popular representation and to the legislative task, not to personal interests. In any aspects not pertaining to the exercise of the popular will, which is to legislate, the representative is like all other citizens and therefore is subject to the law, which should treat all Nicaraguans equally. To act in any other way would be to convert immunity into the impunity of the absolute monarch.

In Nicaragua's history, unfortunately, the privileges of impunity and immunity have been determined more by the exercise of power in individual situations than by legal norms. The foreign interventionist, the rifle, Somocismo's "magnífica," political leadership, money and family names have on no few occasions helped revive the impunity common to the feudal lord, who demanded for himself as a right everything from land to the wives and daughters of his serfs.

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