In his book about the modern legal tradition, “The Gift of Science”, American philosopher Roger Berkowitz, offers us a glimpse – somewhat academic but not without a spirit of its own – into the failure of science – or of rationality, to be more precise – to bring about a rebirth of law and justice in an age when the traditional foundations of both, namely the religious institutions, have been eroded.
At the end of his book, Berkowitz offers the following meditation:
“For those of us living through the divorce of law from justice, the rules of law appear naked, stripped bare of any claim to higher good. We may praise law for its legitimacy, its fairness, or its efficiency, but we do not love it for its justice.
The sequestering of justice in the world beyond leaves this world prisoner to the whim of calculating bureaucrats, legislators, and judges. With the reduction of law to policy, the weighing of interests, and the overwhelming demand that law achieve political and social ends, the ethical idea of law as justice has fled the earth.
Law, the last bastion of the ethical world’s resistance to the rule of scientists and experts, has succumbed to the lure of social engineering. Just as man has become a human resource in the service of whatever social or commercial end, so too is law nothing in itself”.
Both things – that there is a divorce between law and justice and that law is nothing in itself, is not simply a theoretical consideration of the first order but a living reality in the Middle East and in fact, the fuel behind the uprisings and revolutions that have swept the entire region: The demand of justice – social, political and legal – was of course the main reason why millions of people took to the streets in the first place.
Such demand – legitimate in every case – however was met with the full force of the law: Brutal crackdowns on protesters anchored in a plethora of legal arguments – security, terrorism, and disrespect to authority – were set in full force and justified rationally on the basis of constitutions safeguarded by political institutions that turned a blind eye to the legitimacy of the demands, with the pretext of restoring safety and stability.
In a way it could be said that the protest movements demanded something – justice – that no law could grant them and that in turn the laws had to be changed in order to serve justice; but as it turned out – in Tunisia and Egypt – the independence of the judiciary from political institutions was all too compromised in its commitment to the laws and eventually, in the absence of secure political institutions, no laws could be applied effectively to deliver actual justice.
While this is the case with the vast majority of the citizens, what happens when the law is actually turned around to divorce law and justice for the law-givers and law-makers themselves?
This is precisely what occurred to Venezuelan judge Maria Lourdes Afiuni in 2009 when she was arrested on charges of corruption after she ordered the conditional release on bail of Eligio Cedeño, a Venezuelan businessman, who was then pending trial for evading currency controls.
In 2007, Cedeño, a banker and then president of Bolivar-Banpro financial group was arrested on charges of circumventing government currency rules to gain US dollars and then accused by the Attorney General of illegal dollar transactions. In the course of an entire year, prosecutors failed to turn up at court, what eventually led to suspicion that the charges were trumped and that there was no factual evidence. In 2009 he was declared on arbitrary detention by the United Nations.
According to his lawyers, he had become a target of the Chavez government because of its support for the opposition. He had provided financial support to opposition politicians, and provided assistance to union leader Carlos Ortega and columnist Patricia Poleo, who later fled the country seeking political asylum.
The banker was held imprisoned for 34 months until he was paroled in December 2009 by judge Maria Lourdes Afiuni following guidance of the United Nations, since he had been detained without trial longer than allowed under Venezuelan law. Attorney General claimed that the release on bail was determined at hearing without prosecutors, who by all means had made an effort not to appear at court hearings repeatedly, and following the opinion of the UN’s working group on arbitrary detention.
Shortly thereafter Afiuni was arrested and the prosecution filed charges for irregularities in the release of Cedeño. President Hugo Chavez lauded the arrest, called her bandit and was vocal in expressing that she should receive the maximum penalty and be put away in prison for 30 years. Charges were trumped as well of having received bribes to rule the case in favor of Cedeño.
With similar handling on the part of the judiciary, the case had been postponed several times without any basis other than to prolong her arrest indefinitely – similar to the bogus trials against Egyptian blogger Maikel Nabil – and in February 2011, she was eventually granted house arrest after an emergency surgery for cancer, but is barred from speaking to the media.
Several international bodies have expressed concern about Afiuni’s arrest and called for her immediate release; among them the United Nations, the Inter-American Commission on Human Rights, Human Rights Watch, the Law Society of England and Wales and the European Parliament.
It is not surprise that the rights of dissidents and political opponents are violated on a regular basis in Venezuela since Hugo Chavez came to power in 1999 and has placed the country on a watch list on a large number of issues including not only human rights, but unprecedented corruption, links to totalitarian states, money laundering, aiding terrorist groups from the Middle East, and most recently, of aiding the embattled regime of Bashar Al-Assad in Syria.
This month, Human Rights Watch published a report stating that there is no independence of the judiciary in Venezuela, country where appointed judges are not only sacked and threatened but as in the case of Afiuni, arrested and denied basic rights to a fair trial, insofar as their rulings do not conform to the interest of the President Chavez’s tight grip on power, while temporary judges are appointed by the regime to deliver tailor-made rulings that are politically motivated, as in the case of the infamous Caracas Nine, a group of individuals – journalists, students, judges, military personnel – who faced discrimination, censorship, intimidation, false arrest, imprisonment and torture, for the sole reason of speaking loudly against an incessant wave of abuses of power and rights in the country.
Since Chavez came to power, the once liberal and relatively wealthy country has been severely impoverished, business and private property looted, political freedoms eroded, Caracas has become of the world’s most dangerous cities and the Venezuelan diaspora in neighboring countries, Spain, the United States and other countries has grown by the tens of thousands in recent years.
In 2011 her arrest was extended for another two years and in spite of being a cancer patient, she is denied the right to healthcare – another similarity with Maikel Nabil’s former case – and her lawyer petitioned for over eight months for something as simple as the right to receive medical treatment, at the same time that President Chavez traveled repeatedly to Cuba to seek cancer treatment and expressed via social media his love for all Venezuelan women on women’s day this March; what obviously seems to exclude judge and now political prisoner Maria Afiuni, despite her deteriorating physical and emotional health.
On March 16, an NGO and a group of students took to demonstrate across the judge’s residence to show their support and demand freedom and justice for the judge. She sent a thank you letter to the youth who demonstrated and asked them not to abandon political prisoners like herself who are deprived of the right to express themselves.
In a brief phone call with Colombian newspaper El Tiempo, from the time when she was arrested, she expressed acknowledgement of the risks involved in Cedeño’s case and had full knowledge that there might be consequences for those who would dare to make decisions in anyway unfavorable to the parties interested. When asked why she decided to do it anyway, aware of the circumstances, she said:
“When one is a judge and is a judge out of conviction, because of a career in the judiciary, one is able to make decisions in accordance to our laws, constitutions and international treaties. It seems to me incredible that the norm now is the total opposite. Cedeño’s file even had a resolution from the UN that urged me to release him.”
She sent also the following message in reference to what is happening in Venezuela with the powers of the judiciary: “Those who study law know that justice is the basis, the heart of an independent nation. A nation without justice is not a nation, and even less independent. Because all the institutions are about justice, when justice is absent, everything is. It is hard, my message is that people should remain alert, because Venezuela is not a state of the law, and even less, a social state or a state of justice. It is terrible.”
The lesson from Afiuni’s case for Arab Spring is that when the powers of the judiciary are not independent, anything can happen and against anyone. In Egypt, it has been demonstrated time and again not only that the judiciary is not independent, but that it is tightly controlled to meet the needs of the interim rulers in exerting a total control over private and public life, what is not significantly different from the recently deposed regime and in fact, in some cases, it is even worse, as has been demonstrated in cases such as the crackdown on NGO’s and the infamous military trials.
While there is hope for Venezuela with upcoming elections and a well-respected opposition candidate expected to win, it is uncertain that Chavez and his entire apparatus of corruption – that includes tight links with totalitarian states – can fade away quickly to be replaced with democracy; reason for which Afiuni’s case is the writing on the wall for countries going through the upheaval of revolutions like Egypt, to strive for maintaining or recovering the independence of the judiciary.
Sometimes we tend to assume that the law is a prerequisite for justice, but as the period in which Egypt has been ruled under SCAF shows, there can be a strong law and a functioning legal system, without the slightest trace of justice to be found. But the struggle of many – including judge Afiuni – to seek justice over the technicalities and rationality of a legal system divorced from law, remains a source of hope.
This is what Berkowitz concludes from his long study of the modern legal traditions of Europe:
“As long as the ideal of justice is still heard, albeit faintly, in its connection with transcendence – as long as we can still make sense of the idea of justice that connects us with our friends and fellow citizens without the need for law and contracts – there is the possibility that acts of justice will inspire, ennoble, and enable some to heed the call.”