V. Measures to strengthen the democratic process

V.1. Administration of justice and traditional forms of conflict resolution

V.1.a Administration of justice

In various sections of the Peace Accords express reference is made to Guatemala’s system for the ad mi nistration of justice. Specific reference is made to it in the Agreement on the Strengthening of Civil Power and the Role of the Armed Forces in a Democratic Society, in which it is described as “one of the greatest structural weaknesses of the Guatemalan State.” In fulfilling the said agreement, the Commission on the Strengthening of the Justice System produced a final report including various recommendations.

As a result of its own investigations, the CEH has also come to the conclusion that the weakness and dysfunction of the judicial system has contributed decisively to impunity and the misapplication of criminal law during the period covered by the CEH’s mandate.

Also, as a result of the Peace Accords, the Congress of the Republic approved the National Reconciliation Law, which, according to Article 1, is considered to be a “basic instrument for the reconciliation of those people involved in the internal armed confrontation.”

Considering the former, the CEH recommends:

Commitments pertaining to the Peace Accords

46. That the powers of the Guatemalan State regard the fulfilment of their commitments on justice contained in the Agreement on the Strengthening of Civil Power and the Role of the Armed Forces in a Democratic Society, as of utmost importance. The recommendations contained in the final Report produced by the Commission on the Strengthening of the Justice System, and which the CEH assumes and reiterates as it own, should be carried out in full.

National Reconciliation Law

47. That the powers of the State fulfil, and demand fulfilment of, the Law of National Reconciliation, in all of its terms and in relation to the rest of Guatemalan law. Those crimes for whose commission liability is not extinguished by the said law, should be prosecuted, tried and punished, particularly following Article 8 “crimes of genocide, torture and forced disappearance, as well as those crimes that are not subject to prescription or that do not allow the extinction of criminal liability, in accordance with domestic law or international treaties ratified by Guatemala.”

48. That, in applying the National Law of Reconciliation, the relevant structures take into account the various degrees of authority and responsibility for the human rights violations and acts of violence, paying particular attention to those who instigated and promoted these crimes.

Right to habeas data

49. That a bill of law be presented by the Government to the Congress of the Republic which quickly and effectively establishes the right of habeas data as a specific mechanism of protection and activates the constitutional right, recognised in Article 31 of the Constitution, of access to information contained in archives, files or any other form of state or private record. It should also penalise the gathering, storage or concealment of information about individuals, their religious or political affiliation, their trade union or social activism and any other data relating to their private lives.

V.1.b Traditional forms of conflict resolution

The Commission on the Strengthening of the Justice System included a series of recommendations in its final Report that uses as its starting point the fact that it is “necessary to proceed with the search for formulas that encompass traditional methods of conflict resolution and the state judicial system, capable of complementing both components.”

As outlined in its Report, the CEH has noted that disrespect for the traditional methods of conflict resolution, and for the authorities charged with applying them, to the point of the perpetration of acts aimed at eliminating them, has been an almost constant characteristic from 1980 until the end of the armed confrontation.

Considering all the former, and reiterating the need to fulfil the recommendations made by the Commission on the Strengthening of the Justice System, the CEH especially recommends:

Legal integration

50. That what is known as customary law is recognised and integrated into the Guatemalan legal framework, formalising and ordering a respectful and harmonious relationship between the jud icial system and the traditional forms of conflict resolution, with their principles, criteria, autho-rities and procedures, as long as the rights recognised in the Guatemalan Constitution and in international treaties on human rights are not violated.

Instruction

51. That the universities and other state educational bodies which teach the law include knowledge of the norms of the traditional forms of conflict resolution as a distinct subject in their study programme.

52. That the Ministry of Education support the publication of materials which contain the latest advances in the research into the practices that constitute what is known as customary law.

V.2. Primacy of civilian power and the role of the Armed Forces

V.2.a Legal reform

Considering the grave human rights violations committed by Army agents during the armed confrontation and the marked weakening of the social fabric as a direct consequence of the militarization, the CEH believes it vital to promote legislative measures which establish the fundamental bases for the correct relationship between the Army and civil society within a democratic system, and the necessary subordination of the Army to civilian rule. These measures should include the adaptation of the military norms and fulfilment of its constitutional mandate to promote respect for human rights, the exercise of discipline only according to the law, the apolitical role of the military and restricting its role to external defence.

The CEH also recognises the pernicious effect of the activities of military intelligence on the human rights situation and on civilian-military relations. Equally, it recognises the severe abuse of authority committed in the past through anti-democratic behaviour and the serious violation of human rights by forces directly linked to such intelligence services and often carried out by means of covert actions.

The CEH believes that unquestioning obedience to any kind of order is one of the most significant and most dangerous factors generating human rights violations.

On the basis of the former, the CEH recommends:

53. That the Government present to the Congress of the Republic the necessary legislative reform bills that include measures to implement the Recommendations number 54 to 59 below. These bills should be based on, and complement, what was established in the Agreement on the Strengthening of Civilian Power and the Role of the Armed Forces in a Democratic Society.

Reform of the Constitutive Law of the Army

54. That the Presidential and Vice-presidential General Staff (Estado Mayor Presidencial y Vicepresidencial) structures be abolished, being unnecessary in a democratic State.

Reform of military legislation

55. That a new Military Code be drafted and put into effect based on legal, moral and doctrinal criteria in accordance with the Constitution of the Republic and the reforms to the same derived from the Peace Accords.

56. That the Military Code include the correct concept, already contained in the Constitution of the Republic, of discipline and obedience solely within the law and never outside it, and that reference be removed in the Military Code to obedience being owed to whatever kind of order.

57. That the death penalty for the military offence of disobedience be abolished.

New legislation regarding the state intelligence apparatus

58. That the Government present to Congress of the Republic the corresponding legislation that:

a) Precisely define the structures, tasks and limits of civil and military intelligence, restricting the latter to exclusively military affairs; and

b) Establish clear mechanisms of effective control in Congress regarding all aspects of the apparatus of state intelligence.

59. That the commitments regarding intelligence contained in the Agreement on the Strengthening of Civilian Power and the Role of the Armed Forces in a Democratic Society be fulfilled as soon as possible, particularly those relating to the approval of the following: the Law on Methods of Supervision of the Organs of State Intelligence; the Law Regulating Access to Information on Military or Diplomatic Affairs relating to National Security; the delimitation of the jurisdiction of the Intelligence Office of the Army General Staff, reconciling these to the new role of the Army; the configuration of the Department of Civil Intelligence and Information Analysis and of the Secretary for Strategic Analysis.

V.2.b New military doctrine

60. That the Government promote a new military doctrine for the Guatemalan Army, that should result from a process of internal reflection and consultation with the organisations of civil society. This doctrine should establish the basic principles for the appropriate relationship between the Army and society within a democratic and pluralist framework. Among these fundamental principles, at least the following should figure:

a) The function of the Army is the defence of the sovereignty and independence of the State and the integrity of its territory. Its organisation is hierarchical and based on the principles of discipline and obedience within the law.

b) The Army should accept that sovereignty resides in the Guatemalan people. As a consequence, the Army should respect whatever social reforms and changes which result from the exercise of this sovereignty, reconciling itself to the mechanisms established in the Constitution.

c) The Army will base its legal standards, as well as its conduct, on systematic respect for human rights.

d) The Army will be subordinate to political power, which emanates from the ballot box through the procedures established by the Constitution.

e) The Army will show respect for the Constitution in all its aspects.

f) The Army is apolitical. It should remain at the margins of party politics and respect all those political forces legally constituted. None of these may be persecuted or submitted to surveillance or control of any of their activities that are carried out within the law.

g) Members of the military accept the limitation inherent in their career, specifically intended to preserve the apolitical nature of the institution, that, whilst they are in military service, they may not affiliate to, nor become a member of, any party or trade union.

h) Members of the military may exercise their right to vote freely and secretly in national and local elections. Nevertheless, whilst they remain in active service they may not reveal their political preferences in any public act or through any medium of social communication.

61. That the basic values of members of the military must conform to the following concepts and fundamental principles:

a) that members of the military are citizens in the public service of national defence;

b) that military discipline has to be based on the concept of strict obedience within the law, and never outside it;

c) that the concept of military honour must be inseparable from respect for human rights; and,

d) that the esprit de corps must conform to a high standard of ethics and be based on principles of justice and public service.

V.2.c Reform of military education

62. That the Government take measures for the revision of the curricula of the Guatemalan Army’s various training centres, in such a way as to include, as basic subject material, the points numbered previously.

63. That the CEH's Report be studied as part of the Guatemalan Army’s educational curriculum.

64. That the Guatemalan Army’s various educational centres promote a review of the teaching staff and remove military personnel involved in present or past human rights violations from educational functions. Maximum professional and ethical rigor from the teaching staff is required.

65. That the civilian Faculty of the Guatemalan Army’s training centres be made up of persons of recognised democratic trajectory.

V.2.d Other recommendations pertaining to the Army

Civil service: military and social

Considering that forced and discriminatory recruitment has been a continuous and abusive practice throughout the armed confrontation, having affected almost every Mayan community, and considering the future approval of the Civil Service Law contemplated in the Agreement on the Strengthening of Civilian Power and the Role of the Armed Forces in a Democratic Society, which will regulate military and social service, the CEH particularly recommends with regard to this law:

66. That the regulations of military service maintain strict respect for the principle of equality before the law in the mechanisms and process of recruitment.

67. That the option of conscientious objection be established and registered for those whose religious, ethical or philosophical convictions do not permit them to carry arms, so that they are not obliged to do so, but instead allowed to perform other types of civic service to the community.

68. That young men of military service age who themselves, or whose family members within first degree consanguinity, were victims of human rights violations and acts of violence connected with the armed confrontation, remain exempt from military service and be directly assigned to civil service.

Special forces

69. That, in conformity with the principles of military doctrine and education stated previously, the training programmes of the armed forces be subject to drastic and profound revision, especially those conceived specifically for counter-insurgency, such as that known as the Kaibil School.

Respect for Mayan cultural names and symbols

70. That, with the aim of respecting the Mayan people’s cultural identity, which was severely violated during the armed confrontation, the Army no longer the use of names of particular Mayan significance and symbolism for its military structures and units.

Civic defence of the peace

In a world in which national and international peace is the responsibility of all and in which the fundamental duty of the armed forces should be the defence of peace, the CEH recommends:

71. That, as one of its priorities, the Army promote participation in peace initiatives and international security under the authority of the United Nations Organisation or the Organization of American States.

72. That the military professionals make every effort to achieve a Guatemalan Army dedicated to the service of peace and to the citizens of Guatemala, of which every Guatemalan may feel proud.

Request: The governments of those countries whose armies have undergone similar transitions to that required of the Guatemalan Army, are asked to lend their technical and financial co-operation to facilitate the implementation of the recommendations listed above in part V.2.

V.3. Public security

The principal aim of the restructuring of the security forces, their professionalisation and their instruction regarding the law, democracy, human rights and a culture of peace, as stipulated in the Agreement on the Strengthening of Civilian Power and the Role of the Armed Forces in a Democratic Society, is to convert the role of the police into one of genuine public service. This implies the exclusively civilian character of the police force and respect for the multiethnic nature of the Guatemalan nation in the recruitment, selection, training and deployment of the police.

Given the discrediting of former police institutions for grave human rights violations and the general deficiency of service to public security afforded to the community, the new National Civilian Police (PNC) must implement, in their doctrine, professional conduct and in the development of a professional and modern police force, the minimum principles contained in the relevant international instruments regarding respect for human rights, public liberties, rule of law and democracy.

On this basis and with a view to guaranteeing suitable future development of the duties of the police, the CEH particularly recommends:

Security forces doctrine

73. That under the guidance of the Ministry of the Interior, the PNC begin a process of internal reflection in consultation with organisations from civil society, with the aim of producing and defining the doctrine of the civilian security forces, whose bases should be:

a) service to the community, without discrimination of any type and with respect for the multiethnic character of the Guatemalan nation;

b) development of the civilian nature of the police force and the demilitarization of its organisation, hierarchy and disciplinary procedures;

c) complete respect for human rights and the consequent investigation, prosecution and conviction of any members who have committed human rights violations;

d) respect for democracy and the rule of law; and

e) the continuous professional training and instruction of the police at every rank.

Internal control

74. That under the supervision of the Ministry of the Interior, the Directorate of the PNC take the relevant measures to ensure the removal from the police of those elements who have acted, or act, against its doctrine of public service and create a new unit for internal control or inspection, which is accessible both to the public and the Human Rights Ombudsman, and which has autonomy to investigate and sanction both individual and institutional professional misconduct.

Indigenous participation

75. That the directorate of the PNC promote measures which genuinely open the way for par ticipation by indigenous peoples in public security service, such as:

a) taking into consideration bilingualism in the academic evaluation, as well as eventual deployment of a police candidate;

b) the elimination of discrimination in the summoning and selection processes and their adaptation to the realities of a multiethnic country;

c) the education in the PNC Academy on the multicultural nature of Guatemala and intercultural harmony; and

d) the organisation of the police service in such a way that indigenous members are able to use their native language skills in contact with the public, promote positive relations with indigenous institutions and authorities and respect forms of conflict resolution characteristic of their cultures.

Resources

76. That, when determining the national budget, the Government and the Congress of the Republic increase the financing of the National Civilian Police, guaranteeing adequate training and equipment with modern means and installations and dignified working conditions.

Civilian nature of the PNC

77. That the new Public Order Law, referred to by the Agreement on the Strengthening of Civilian Power and the Role of the Armed Forces in a Democratic Society, considers the civilian nature of the Police during emergency situations of whatever type, and does not oblige it to participate in duties which appertain to the Army.

78. That, in case the reforms proposed in the Peace Accords are unsuccessful, Congress take the necessary legislative action to separate the functions of the Army and of the Police, limiting the participation of the Army in the field of public security to an absolute minimum.