Bring order to arbitrary acts

Carlos Alberto Montaner

In Argentina, the opposition is preparing to put the Kirchner couple in jail once Doña Cristina leaves the presidency. Both will be charged with misappropriation and malversation of public funds. Word is that the charges won't be difficult to prove.

In Nicaragua, Daniel Ortega is aiming an indecent legal broadside at the leader of the opposition, Eduardo Montealegre, to force him to change the Constitution in such a way that Ortega may be reelected permanently.

In Panama, citizens are collecting and organizing the evidence necessary to proceed against Martín Torrijos with an indictment of corruption. Those who are most intent on destroying him are members of his own party.

In Peru, former president Alberto Fujimori is in prison, but if his daughter Keiko wins the presidency she will pardon him and take legal action against the current president, Alan García, and his predecessor, Alejandro Toledo.

Exiled in the United States are former Bolivian President Gonzalo Sánchez de Lozada and Ecuadorean President Jamil Mahuad, both threatened by judges in their respective countries as a way to keep them away from home.

The list is much longer, but it is not necessary to mention everyone. Few Latin American countries are exempt from these judicial vendettas. The victor attempts to liquidate the vanquished. In those nations, the law is not an instrument to regulate civilized coexistence but a mace to crush the adversary's head.

What to do against such judicial misbehavior? The answer to this contemporary question was given, curiously enough, by a ferocious warrior from the tribe of the Isaurians, in the late fifth century, when he became emperor of Byzantium and adopted the Greek name Xenon. Inspired by the Catholic concept of the Last Judgment and mortified by the unreliability of magistrates and the rampant corruption among court officials, Xenon issued an edict that imposed “ judgments of residence”  that were mandatory for his empire's important functionaries.

What was that? For 50 days, any citizen who was convinced that he had been the victim of an injustice or abuse by a judge or official could sue him before a tribunal created especially for that purpose, as soon as the official completed his mandate.

Very soon, the measure became tremendously popular. It entered the medieval legislation in other regions of Europe and in the 13th century was incorporated into Castilian law, in the Seven Rulings of Alfonso X, the Wise, which became the foundation of Hispanic legislation in the New World after the Discovery of America.

The advantages of the “judgments of residence”  were most notable. They weren't acts of revenge but habitual procedures. Every viceroy, judge or important functionary knew that, after completing his term, a judicial investigation would begin, his actions while in office would be examined and his victims -- if any -- would have an opportunity to sue him. So, he tried to guide his actions by the law, so he wouldn't become a defendant in a court case.

The Archive of the Indies in Seville preserves hundreds of documents from these fascinating legal processes, which undoubtedly contributed to boosting the prestige of the Spanish Crown in the colonies. The least that could be expected from the distant monarch was justice.

Lamentably, the “ judgments of residence,” characterized by great bureaucratic complexity, were associated with the colonial practices of the Spanish government and were not incorporated into the methods of governance of the Latin American republics once they were created in the first third of the 19th century, despite their huge popularity among the population.

Perhaps it would be a wonderful idea to reprise that old tradition today. On one hand, it would serve as a brake and warning to anyone who accepts a public post.

On the other, it would convey to society a comforting sensation of justice. Finally, it would put an end to the discretionary use of the law for partisan purposes -- everyone would be subject to that final audit -- and to the unedifying spectacle of tribunals being used to clout adversaries. Sometimes, it is possible to learn from history.

September 1, 2009

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