THE STATE OF EMERGENCY IN EFFECT IN NICARAGUA
A. General Considerations
Although the lack of respect for human rights in Nicaragua is neither recent nor sporadic, but rather has constituted a system practiced for many years, this report, given its nature, will deal exclusively with the state of emergency now in effect in Nicaragua, which the Special Commission experienced during its visit, and which will be in effect at least until April 30, 1979, and which, furthermore, has existed during the greater part of the administration of President Somoza which began on December 1, 1974.
B. Suspension of Constitutional Rights
On September 13, 1978, by Decree Nº 56, the President of the Republic of Nicaragua in Council of Ministers suspended the exercise of all constitutional rights for a period of thirty days throughout the country. Shortly prior thereto, by Decree Nº 3, the President had suspended the exercise of constitutional guarantees for an equal period of time in the Departments of Managua and Estelí. The justifications given for the establishment of the national state of emergency were the armed attacks since October 1977 on different cities of the country and the fact that opponents of the government had carried out a campaign of political agitation and subversive propaganda to undermine authority, discredit state institutions and overthrow, through violence and terrorism, the constitutional government; that the activities of Nicaraguans abroad have been notorious, which had culminated in invasions of Nicaragua in concert with Marxist mercenaries and terrorists of different nationalities; that leaders of international communism had participated in those activities, and that crimes had been perpetrated against the people and attacks committed against the National Guard, which is the institution destined to guarantee the sovereignty and independence of the country, its national integrity, its domestic tranquility and individual rights.1
On October 12, 1978, the President of the Republic in Council of Ministers decreed that beginning on that date and until April 30, 1979, that is, a period of six months and 18 days, certain constitutional rights, specifically those stipulated in Articles 39, 40, 41, 42, 46, 49, 58, 59, 73 and 75 of the Constitution, were to be suspended.2
As a complement to this decree and in accordance with it, the President of the Republic delegated to the departmental commanders of the National Guard, according to Article 2 of Martial Law, the observance of provisions relative to its application in their respective jurisdictions.3
It should be pointed out that, on the same date of the latest suspension of constitutional rights, October 12, 1978, the President of the Republic in Council of Ministers promulgated another Decree that repealed Decree Nº 56 of September 13, 1978, previously cited, and justified that action by stating that the Nicaraguan National Guard in accordance with the Constitution, “has accomplished its patriotic duty of reestablishing domestic tranquility and guaranteeing the independence of the national and the integrity of its territory that were threatened by terrorists inspired by international communism.” In the light of this consideration, it cannot be ignored that the Government of Nicaragua expressly recognizes that the causes which determined the suspension of constitutional rights along with the application of Martial Law and the promulgation of the State of Siege no longer exist; therefore—as it is stated—domestic tranquility has been reestablished. The Constitution, in its Article 197, states that the decree of suspension of rights shall be repealed upon the cessation of the causes for which it was invoked. Therefore the prolongation of that abnormal legal situation doesn't make sense if the situation that caused it has been officially declared as ended.
The Constitution of Nicaragua gives the President of the Republic in Council of Ministers the power to suspend or restrict, in all or a part of the national territory, the exercise of constitutional guarantees. It also states that the President and the Ministers of State shall be held responsible whenever the suspension or restriction of the constitutional guarantees has been declared without proper cause; and it adds that they shall be held responsible, together with all other officials, for any abuse committed during a period of suspension or restriction.4
Article 197 of the Constitution establishes two essential limitations to the power of the President to suspend or restrict the exercise of constitutional rights, the second of which is of greater importance in the matter at hand due to its impact on the observance of human rights. These two limitations are the following: 1 – Neither the suspension nor the restriction of guarantees shall in any way affect the functioning of the organs of government, and their members shall always retain the prerogatives granted by law. 2 – In no case shall the decree of suspension or restriction affect the following guarantees:
a) The inviolability of human life;
b) The prohibition of trials by judges other than those designated by law;
c) The prohibition against acts of cruelty or torture and infamous punishment;
d) The prohibition against retroactive or confiscatory laws;
e) The prohibition against imposing taxes. Nevertheless, if an international or civil war breaks out, the President in Council of Ministers may impose taxes of a general nature.
C. Martial Law
The emergency situation existing in Nicaragua stems from the implantation within all or part of a territory, of the State of Siege, which is invoked when constitutional rights are suspended, and simultaneously and automatically, Martial Law applied.5
In spite of the limitations established in Article 197 stating that the decree of suspension cannot affect certain constitutional rights, the very promulgation of the law suspending constitutional rights carries with it, as was stated before, the parallel and automatic application of Martial Law, which, according to Article 331 of the Constitution also has the rank of constitutional law.
An objective analysis of the provisions of Martial Law leads to the conclusion that it is a legal system of general attributions to be applied in exceptional or emergency situations, one that ostensibly violates fundamental rights inherent to human beings and included in the Constitution of the Republic.
Within that law, whose essential objective is to ensure public order, a series of preventive measures and executive decrees can be carried out arbitrarily, including, among others, the issuance of arrest warrants to investigate disturbances of the peace, and the incommunication of prisoners for a reasonable period of time; the compelling of people to move from their residence; the suspension of radio and television broadcasts, or spoken, written or printed communications, or of any other media, and the seizure of publications for a period deemed appropriate; the suspension or prior censorship of those publications; domicile searches; the occupation for military purposes of any real state or property of any person; the dissolution of any seditious groups, utilizing force for that end until they obey; the power of military tribunals to hear cases of crimes against the internal and external security of the state and against public order.
If such powers are deemed insufficient, military authorities can adopt other types of measures, among them, the establishment of fines which come into effect by government decree. In addition, Article 6 of the Martial Law establishes that “every person present in places in which acts contrary to the public order are committed is considered responsible for the crimes that have been committed at that time. The same presumption shall fall on those that are apprehended, fleeing after having been with the rebels or subversives, at the time when those acts are committed.” Excepted from this provision—Article 6 goes on to say—are those “individuals from legally constituted philanthropic organizations.”
Two other provisions of this law, whose effectiveness is weakened by the excesses of those who are supposed to enforce it, are found in Article 11 and in Article 13. In the former it is stated that no authority can, in any case, establish or impose other sentences than those prescribed by the laws in effect before the commission of the crime, nor deny the accused the right of defense. The latter states that the trials which are before ordinary tribunals at the time of Martial Law shall continue under their jurisdiction; but those trials shall be brought without delay to military tribunals if they refer to crimes that caused the decree of restriction or suspension.
D. Characteristics of the State of Emergency
An examination of the legal system in effect in Nicaragua leads us to aver that the state of emergency is based on different, interrelated legal provisions, which in some cases are contradictory, insofar as the observance and defense of rights inherent to human beings is concerned. The presidential power for the suspension or restriction of constitutional rights stems from Article 197 of the Constitution. As a consequence of that governmental power, decrees are promulgated through which the suspension or restriction is made effective, establishing the State of Siege with a curfew, through administrative channels. Simultaneously, Martial Law is made to prevail, which converts the rights established in the Constitution into a nullity.
On the other hand, although Article 197 of the Constitution provides for the suspension or restriction of fundamental rights in special cases of emergency, that is, with temporary effect due to its emergency nature, in fact the decrees of suspension of constitutional rights have changed from sporadic to periodic until they acquire a certain degree of permanence, thus contradicting the letter and spirit of the Constitution.
The present presidential period began on December 1, 1974 and is scheduled to end on May 1, 1981, that is to say, in 6 years and 6 months.6 Twenty-eight days after the period began, a State of Siege was declared; constitutional rights ere reestablished on September 19, 1977. The State of Siege was again decreed on September 11, 1978 until October 13 of the same year, and then prolonged on October 12 of that year until April 30, 1979. Starting on December 1, 974 until November 10, 1978, i.e. in three years, eleven months and ten days of the presidential period, the country has been in a State of Siege for two years, ten months and eleven days, and in that same period, the country has had constitutional rights for one year, one month and two days. This does not take into account the prolongation to April 30, 1979 included in the last State of Siege decree, nor the possibility that the State of Siege might again be prolonged.
These provisions, which make up the emergency regime prevailing in Nicaragua, create in the socio-political reality of the country, a legal structure from the formal point of view, but from the material point of view, this turns into a legal abnormality, since it lends itself to a systematic and generalized violation of human rights established in the American Declaration of the Rights and Duties of Man.
1 The Political Constitution of Nicaragua states in Article 197 that the decree of suspension or restriction of rights must contain the following requisites: a) the grounds on which it is based; b) specification of the guarantee or guarantees that are restricted or suspended; and c) the territory affected by the suspension or restriction.
2 Article 39: guarantees individual liberty; Article 40: states that arrests can only be carried out upon the written order of a competent official; Article 41: guarantees that a person arrested be released or delivered to the competent judge within 24 hours after detention; Article 42: deals with the right to habeas corpus; Article 46: states that any detention for investigation must be revoked or converted into imprisonment within ten days of being placed at the disposal of the competent judicial authorities, and minors must be sent to special rehabilitation institutions; Article 49: states that no court shall handle cases outside its jurisdiction (fuero atractivo); that no case shall be removed from the appropriate judge nor brought before a special court, except under a previous law; Article 58: guarantees the inviolability of the home and of any other private place; Article 59: recognizes personal freedom to travel throughout the country and to choose a place of residence within it; Article 75: establishes the right of every person to address written petitions or claims to public authorities and the obligation of those authorities to act on them and make known the result.
3 Article 2 of the Martial Law states that the President of the Republic himself or through civilian or military authorities can execute all dispositions of that law, during periods of suspension or restriction of constitutional rights.
4 The Constitution of Nicaragua was promulgated on April 3, 1974, and has been in effect since its publication in the Official Gazette, “La Gaceta,” Nº 89 on April 24 of the same year. Article 197 gives the President of the Republic in Council of Ministers the aforementioned power to exercise it in any of the following cases: a) when the Republic becomes involved in international or civil war, or when there is a danger that either of these might occur; b) in the case of an epidemic, earthquake or any other public disaster; and c) whenever, due to any other circumstance it be required to maintain the protection, peace, or security of the national or its institutions or form of government.
5 Martial Law was promulgated on October 25, 1974 and has been the law since its publication in the Official Gazette, “La Gaceta,” Nº 257 on November 22, 1974.
6 It was so established in the Transitory Dispositions of the Constitution of April 3, 1974.