FacebookTwitterGoogle+RedditEmail

The Persecution of Rafael Correa

An Ecuadorean judge has issued an arrest order for former President Rafael Correa. Correa is accused of having masterminded an attempted kidnapping of the right wing former legislator, Fernando Balda, in 2012. Balda was in Colombia at the time evading a prison sentence in Ecuador for libel. The kidnapping was foiled within a few hours by Colombian police and the perpetrators were captured. Months later, Balda was deported to Ecuador where he served two years in jail.

As explained in other pieces for CounterPunch (here,here, and here) in 2017 Lenin Moreno was elected on a platform of continuing the policies of his left wing predecessor, Correa, who was first elected in 2006. Immediately after taking office, Moreno shifted very hard to the right and has therefore made it his main priorityto accuse the government he was part of for ten years of being corrupt.

A week before the arrest order for Correa, I spoke with Virgilio Hernandez who was a member of the National Assembly while Correa was in office. Part of the interview was updated after the arrest order came out. A key point Hernandez makes is that the “Transitional” Citizens Participation Council whose members were hand-picked by President Moreno (details hereon the reasons the body is unconstitutional) has sweeping powers over the judiciary and other authorities.

JOE EMERSBERGER: Could you please explain the various legal and constitutional problems with the way Correa is being pursued over the Fernando Balda case?

VIRGILIO HERNANDEZ:The obvious thing about the Balda case is its political functionality, the determined effort to prosecute the former president Rafael Correa for anything at all. The case is in its early stages but the prosecution has already perpetrated a series of irregularities, a series of violations of the institutional norms and of the rule of law that makes it absolutely clear that justice is not their goal. They are not pursuing a credible investigation of the facts. They are basically pursuing political objectives through the prosecution of Rafael Correa on frivolous grounds.

The first irregularity is that, according to our constitution, authorization to prosecute the ex-president should have been received from the National Assembly. In fact, it was requested by Judge Camacho on June 11. Unfortunately, a majority that exists in the assembly is an alliance between the Alianza País party [that Correa and his allies resigned from after they broke with President Moreno] and the Social Cristiano party [right wing legislators] and what did they do? On June 15, they voted through [by simple majority] a resolution saying that the assembly is not competent to respond to the judge’s request. Regrettably, the judge then disregarded her own authority, ignored the Organic Law of the Judicial Function, and followed through with a hearing to move the case forward when what she was supposed to do was demand that the National Assembly comply with her request – to vote on whether or not they authorize the prosecution of former president Rafael Correa [a 2/3 vote in favor is required for the prosecution to proceed]. Here is the first thing that that reveals political animosity, that the rule of law is not respected, that due process and the constitution are not respected.

Second (and this explains a huge blunder that was perpetrated in contextual terms) one must understand why the prosecution of the former president had to be authorized by the National Assembly. It was because the events to which he is being linked happened while he was president. The law says that for prosecution to proceed presidential immunity must first be removed for events that took place while he was in office. That’s the second irregularity.

A third irregularity is that in general a whole slew of authorities in our country are acting illegally. The acting attorney general was appointed by the “Transitional” Citizens Participation Council that has been overhauling the justice system by appointing interim prosecutors and an interim Judicial Council. The acting prosecutor has not been sworn in before the National Assembly as mandated by the constitution. Their authority is completely illegitimate.

A fourth irregularity is that the arguments used to link Rafael Correa to the Balda’s case [the attempted kidnapping] are utterly weak and confirm that there is a political vendetta being pursued against the former president. Let’s quickly go over those arguments.

First, the simple fact that he was president is used to argue that he was criminally responsible. Criminal responsibility is something very personal. It cannot be established that he has criminal responsibility for all acts perpetrated while he was in office. That’s a legal absurdity.

Second, the former president is linked through hearsay, from what other people have claimed, or by remarks attributed to the ex-president saying he wanted to see Balda (who was a fugitive from Ecuador’s justice system at the time) captured. Balda was also engaged in electronic espionage and a permanent destabilization effort against the government. There is not even anything documented that proves what Correa is claimed to have said about the case. It is all second hand.

Third, there are letters from people who are being prosecuted who say they alerted the former president about a kidnapping attempt, but it has been shown that these letters never reached the hands of the president. It’s another argument that turns out to be completely weak. There were people in government expressing interest in bringing Balda back to Ecuador but through legal processes – by getting him deported from Colombia [which he ultimately was]. In Ecuador, Balda had a criminal sentence to serve. The prosecutor goes after Correa even though the only thing that has been demonstrated is that Balda’s legal deportation from Colombia was being pursued. Moreover, former President Correa wasn’t even pursuing it. That was up to the authorities who were in charge of the internal and external security of the state. It’s another of the prosecutor’s arguments that are easily answered. Then there are a number of details having to do with checks that were issued and testimony by one “Raúl Ch”that are dubious, contradictory and undermine the prosecutor’s case.

In short, the arguments the acting prosecutor is using to pursue former President Rafael Correa are absolutely feeble. The judge disregarded the feebleness of those arguments, but additionally the case should not have even been allowed to proceed [without National Assembly authorization] but what they did next is worse. The judge, when determining pretrial conditions for Correa, established measures beyond what the prosecutor himself requested. The prosecutor requested that as a precautionary measure – given that the former president has collaborated with the investigation – that he appear regularly before the Ecuadorean consulate in Belgium. The judge responded in a very questionable way. First, she asked the acting prosecutor to reformulate his request for precautionary measures when that is the prosecutor’s job. She was clearly looking for the prosecutor to request pre-trial detention by arguing that the consulates do not have the competence to receive a person who appears by court order. This argument the judge made is absolutely false since the Foreign Service Law establishes that the consulates can comply with this kind of order from a judge. The penal code itself states that if a judicial authority establishes provisions, authorities of the state in general have to comply. Judge Camacho’s claim that the Foreign Service Law does not give consulates that capacity is completely cynical. It reveals political animosity.

And when she asked the acting prosecutor to reformulate his request – clearly looking for harsher pre-trial conditions – the persecutor reminded her “You have the authority to set them. This is what the Comprehensive Organic Criminal Code says and therefore, if you so order that the consulates are obliged to accept this order you give them “. In the end the judge ordered that Correa must appear periodically [every 15 days] before a court here in the city of Quito even though it is common knowledge that he lives in Belgium. She made the legally inadequate claim that he has two addresses and therefore must periodically appear Quito. Everyone knows he lives in Belgium as he said repeatedly he was going to move to Belgium [where his wife is from] for several months before he finished his final term as president. The judge set an obvious trap for the former president not to appear and thus have an excuse to order pretrial detention.

JE: On social media I noticed that many of Correa’s detractors were totally enraged that judge Camacho requested National Assembly authorization and called for her to be sacked. Do you think she became more extreme in response to media and other pressures? [Moreno’s handpicked “Transitional” Citizens Participation Council appointed an interim Judicial Council which has announced that it will be evaluating all judges and dismissing those who “fail”.]

VH: All these arbitrary acts are possible because, as Noam Chomsky might say, the media has worked hard to “manufacture consent” for the idea that one way or another Correa must be indicted. It is very clear that the media play a central role. This persecution would not be possible without the big media networks and the use of media power.

Both the actions and the aversion shown by the acting prosecutor and the judge during the bond hearing clearly reveal that there will be no objective handling of the case – and also that the context that we live in Ecuador, when there are authorities that are hand-picked without any constitutional legitimacy by the “Transitional” Citizen Participation Council, sets up a scenario of political persecution. We are without a doubt living through “lawfare” here in Ecuador and it is directed towards Rafael Correa and the main leaders of the Citizens Revolution.

Now, what we feared has in fact happened. Correa appeared at the consulate in Belgium, but the judge ruled that this was a violation of his pre-trial conditions and replaced the order to appear in Quito with an order of pre-trial detention. She did all this in one hearing disregarding a requirement for 72 hours’ notice before changing the pre-trial conditions. Her stated justification for doing that was based on “procedural economy”, but in criminal matters one cannot invoke procedural economy if it violates rights as has now been done with Rafael Correa. All these arbitrary acts against the Citizen Revolution are perpetrated with the complicity of the media whose silence over unconstitutional actions are aimed at ending what they call “correísmo”

JE: There was a news article I read in El Telegrafo (a government run newspaper) that basically argued that prosecuting Correa is fine because former President Jamil Mahuad was also prosecuted (in a case that was initiated years before Correa first took office in 2007).

VH: When the judge asked for authorization to prosecute Rafael Correa, she cited the precedent that had previously been used to prosecute Jamil Mahuad. Authorization had also been requested by the national congress of that time. And although the Congress also said that it was not competent, let’s not forget that this decision was made with 2/3 of its members and not as in this case that is taken by a simple majority.

Mahuad’s defense team has argued that his case be dismissed on those grounds [of not being authorized].

JE: Looks to me like they have a valid argument, not that anyone should defend Mahuad’s disastrous policies.

VH: Yes and in fact and that was cited by the judge herself. The organic code of the judicial function is clear that authorization from the assembly is required in this case. It does not allow the judge to accept, as she did in Correa’s case, that the National Assembly returns her request saying it is inappropriate. According to what our legal regulations say, the National Assembly cannot assess whether or not a request from a competent authority (in this case a judge of the national court) is appropriate. It has to comply with what the judge requested. If that is not done, it violates the autonomy and authority of the judiciary if a judge’s order is disregarded.

JE: Do you think Mahuad’s case should have been halted on these grounds? 

VH: I don’t want to go into the details of something that I do not have very clear in my memory. My concern is relating what is happening at this time with the case of former President Rafael Correa.

JE: You were heavily involved with protests by indigenous groups like CONAIE during the 1990s against neoliberal economic policies. I’ve personally noticed since the 2010 coup attempt against Correa that they’ve become quite reactionary. They recently publicly “recognized” Cesar Trujillo, one of Moreno’s key handpicked members of the “Transitional” Council of Citizens Participation.

VH: Since about the end of the 1990s and the beginning of this century I would say what is evident in CONAIE is that a current became dominant that we’d call a “conservative indigenist” current that has put everything into what they call the “ethnic cause” and left aside the causes of social movements and the left in the country. That explains not only what you describe (these tributes to people like Cesar Trujillo) but also that in the last presidential campaign they openly supported the candidate of the oligarchy and the banks, Guillermo Lasso. It is very clear for almost two decades they lost course and have been useful to the oligarchic groups that have always rabidly opposed Rafael Correa and the Citizens Revolution.

JE: How is the new party the movement is working on organizing going to correct the errors that led to people like Lenin Moreno being in positions of leadership?

VH: The first thing we have to do now is to overcome the political blockade. The political persecution we face is seeking to dismantle all the laws and norms of the Citizens Revolution. Second we have administrative persecution that goes through an “acting” comptroller who also works illegally. They persecute many of the leaders of the Citizen Revolution that way. Third, there is a judicial persecution of former President Rafael Correa. The fourth element of persecution that must be identified clearly is the political blockade. So far they are preventing us from being able to organize ourselves politically even though it is a constitutional right. Therefore, before thinking about self-criticism and the mistakes we should not commit, at this moment our main priority is to break the political blockade. We seek legal recognition to be able to participate in the democratic arena. This will allow voters to continue supporting Citizens Revocation against this ongoing persecution we face.

JE: I am going to make a comment and you can tell me if you agree. I would say to Rafael Correa that he not be a martyr, that he seek political asylum so that his voice is not silenced. I think his ability to speak out, even if from afar in a limited way through social media and other venues, is crucial to overcoming the one-sided media landscape Moreno has established inside Ecuador.

VH: Actually, today, in a meeting of the national coordinators the movement – the group of legislators [who remained loyal to Correa] Andean parliamentarians, councilors of the city of Quito and other authorities of the movement – we have asked Rafael Correa not to come to Ecuador. We said conditions for a fair trial do not exist, conditions for due process do not exist and that therefore that he should not come and that he should seek international assistance to protect his security and freedom. We agree with your position and we have publicly expressed one like it.

More articles by:
July 16, 2018
Sheldon Richman
Trump Turns to Gaza as Middle East Deal of the Century Collapses
Charles Pierson
Kirstjen Nielsen Just Wants to Protect You
Brett Wilkins
The Lydda Death March and the Israeli State of Denial
Patrick Cockburn
Trump Knows That the US Can Exercise More Power in a UK Weakened by Brexit
Robert Fisk
The Fisherman of Sarajevo Told Tales Past Wars and Wars to Come
Gary Leupp
When Did Russia Become an Adversary?
Uri Avnery
“Not Enough!”
Dave Lindorff
Undermining Trump-Putin Summit Means Promoting War
Manuel E. Yepe
World Trade War Has Begun
Binoy Kampmark
Trump Stomps Britain
Wim Laven
The Best Deals are the Deals that Develop Peace
Kary Love
Can We Learn from Heinrich Himmler’s Daughter? Should We?
Weekend Edition
July 13, 2018
Friday - Sunday
Brian Cloughley
Lessons That Should Have Been Learned From NATO’s Destruction of Libya
Paul Street
Time to Stop Playing “Simon Says” with James Madison and Alexander Hamilton
Jeffrey St. Clair
Roaming Charges: In the Land of Formula and Honey
Aidan O'Brien
Ireland’s Intellectuals Bow to the Queen of Chaos 
Michael Collins
The Affirmative Action Silo
Andrew Levine
Tipping Points
Geoff Dutton
Fair and Balanced Opinion at the New York Times
Ajamu Baraka
Cultural and Ideological Struggle in the US: a Final Comment on Ocasio-Cortez
David Rosen
The New McCarthyism: Is the Electric Chair Next for the Left?
Ken Levy
The McConnell Rule: Nasty, Brutish, and Unconstitutional
George Wuerthner
The Awful Truth About the Hammonds
Robert Fisk
Will Those Killed by NATO 19 Years Ago in Serbia Ever Get Justice?
Robert Hunziker
Three Climatic Monsters with Asteroid Impact
Ramzy Baroud
Europe’s Iron Curtain: The Refugee Crisis is about to Worsen
Nick Pemberton
A Letter For Scarlett JoManDaughter
Marilyn Garson
Netanyahu’s War on Transcendence 
Patrick Cockburn
Is ISIS About to Lose Its Last Stronghold in Syria?
Joseph Grosso
The Invisible Class: Workers in America
Kim Ives
Haiti’s Popular Uprising Calls for President Jovenel Moïse’s Removal
John Carroll Md
Dispatch From Haiti: Trump and Breastfeeding
Alycee Lane
On Heat Waves and Climate Resistance
Ed Meek
Dershowitz the Sophist
Howard Lisnoff
Liberal Massachusetts and Recreational Marijuana
Ike Nahem
Trump, Trade Wars, and the Class Struggle
Olivia Alperstein
Kavanaugh and the Supremes: It’s About Much More Than Abortion
Manuel E. Yepe
Korea After the Handshake
Robert Kosuth
Militarized Nationalism: Pernicious and Pervasive
Binoy Kampmark
Soft Brexits and Hard Realities: The Tory Revolt
Helena Norberg-Hodge
Localization: a Strategic Alternative to Globalized Authoritarianism
Kevin Zeese - Nils McCune
Correcting The Record: What Is Really Happening In Nicaragua?
Chris Wright
The American Oligarchy: A Review
Kweli Nzito
Imperial Gangster Nations: Peddling “Democracy” and Other Goodies to the Untutored
Christopher Brauchli
The Defenestration of Scott Pruitt
FacebookTwitterGoogle+RedditEmail