On May 5, this newspaper published an article signed by Dr. Martín Etchegoyen Lynch entitled "The example of El Salvador". There the author celebrated the situation in that country where the "security plan designed and implemented by President Nayib Bukele, (...) It has taken thousands of dangerous criminals off the street – and continues to do so." He added that "today, honest people look to El Salvador and not to the big American cities" when it comes to successful security policies. He compared the situation with that of Argentina, where – he said – "the fed up of the people with the authorities in the matter (...) culminated in the beating of the Buenos Aires Security Minister."
He completed by stating that "that is why Argentina, if it wants results like those of El Salvador, must put in its maximum chair a disruptive politician, with courage and without pro-criminal ideologies." The article closed with the comparison between El Salvador, which has imprisoned 60,000 criminals (1% of the population) and whose president has a support of more than 90% of the electorate, and Argentina, which "with its permissive policies", has a rate of criminals imprisoned approximately 2 per thousand of the population.
What the note did not say, and which I think is relevant, is that there is already ample evidence of the serious violations of rights that have occurred in carrying out many of those 60,000 arrests, as well as those committed once the people were put in prison. The authorities themselves have reported that, only until last November, there had been the death of 58 detainees without knowing the causes of death.
The crimes charged are so vague that they open a margin of enormous discretion to make arrests, incompatible with the liberal criminal law that governs constitutional democracies: 39,000 people are vaguely accused of belonging to "illicit groups" and 8,000 of being part of "terrorist organizations". As of last January, only 148 people, or 0.3%, were charged with homicide, and 303, or 0.6%, with sexual assault.
All this in a context of increasing concentration of power in the hands of the President, who dismissed the Judges of the Constitutional Chamber of the Supreme Court and the Attorney General, with whom he was in conflict.
These new supreme judges were also the ones who authorized him to be re-elected, contrary to the orders of precedents of the Court itself. Through judicial reform, Bukele purged 216 judicial officials, dismantled oversight bodies and carried out severe attacks on the press and illegal espionage.
There are many who seem to share the arguments defended in the article, a fact that is extremely worrying from the perspective of the rule of law and constitutional democracy that we worked so hard to recover.
That is why it is essential to expose the fallacy on which this perspective is based: that there is a contradiction between an effective security policy and the observance of the guarantees and rights recognized in our Constitution and in the International Human Rights Treaties signed by Argentina.
The reference to "pro-criminal ideologies" and "permissive policies" to refer to the observance of the constitutional guarantees of criminal process, daughters of the enlightenment, reason and political liberalism of the nineteenth century, is absolutely inappropriate.
No one can deny the drama that we live in practically the entire country as a result of the high crime rates that affect people of all social strata and, many times, more severely those who have less.
Their lives are in danger every morning when they go out to work and lock themselves in their homes, if they can, as soon as the sun goes down for fear of being on the street.
But that does not imply that the solution to this very serious problem requires setting aside the Constitution. On the contrary, if we betray our most basic commitments to stop crime, even if we succeed in that objective – something also uncertain – we will have entered a world of arbitrariness and institutional violence incompatible with a constitutional democracy such as the one we reconquered 40 years ago.
This does not mean that there are not those who twist the constitutional mandate to avoid criminal punishment or not to apply it, but these are deviations that should not be attributed to the validity of constitutional rights and guarantees. More security does not necessarily mean fewer rights.
Unfortunately, we Argentines have already known what it means to live under a political regime that does not respect constitutional rights and guarantees. This year we rightly celebrate the reinstatement four decades ago of a rule of law regime that is defined as the opposite of a regime of force in which authority is handled arbitrarily.
The respect of guarantees in the framework of a criminal process, not only seeks to prevent the conviction of someone innocent, but also aspires that the application of punishment, an extreme measure of the legal system, receives all the legitimacy that differentiates it from an act of dangerously arbitrary violence.
If we have been able to judge dictators responsible for the most heinous crimes while respecting their constitutional guarantees, would it not be possible to do the same for those responsible for ordinary crimes?
If the need and desperation to defeat criminal gangs and growing crime succeed in making us decline our most basic constitutional arrangements, those who operate outside the law, without intending to, will have achieved a monumental victory and also hold us responsible for it: destroy the law, which is nothing more than the foundation on which democracy is built.
Roberto P. Saba is Professor of Human Rights and Constitutional Law (UBA and University of Palermo)
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