GUATEMALAN COURT AGAIN STRIKES DOWN PAYMENTS TO

UNCLAS GUATEMALA 000344

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV PHUM ASEC EAID MASS SNAR GT
SUBJECT: GUATEMALAN COURT AGAIN STRIKES DOWN PAYMENTS TO
EX-PARAMILITARY

REF: 04 GUATEMALA 2804 AND PREVIOUS


1. (U) Summary and introduction: For the third time in the
past 14 months, Guatemala's Constitutional Court struck down
direct payments to former members of the armed civil defense
(paramilitary) forces (PAC) established by the Guatemalan
Army in the early 1980s. The ex-PACs have refrained from
immediate reprisals but are still demanding compensation.
President Berger has resurrected development projects
targeted at ex-PAC communities as an alternative to the
problematic individual cash payments to ex-PACs. End summary.


2. (U) By a four to three vote in the February 8 ruling, the
Constitutional Court determined that a 2004 law providing for
payments of approximately $665 to the ex-PACs was
unconstitutional because the Congress had failed to specify a
funding source for the payments as required by Article 240.
The Constitutional Court struck down previous legislation in
September 2004 for the same reason; the current measure was
passed by Congress late last year but again failed to meet
constitutional standards. This time, the Court also cited
Article 155, which says that neither Guatemalans nor
foreigners are entitled to indemnity for losses or damages
caused by armed conflict or civil disturbances. The seven
judges who signed the decision included alternates who
replaced four judges who had recused themselves because of
ex-PAC threats. Coincidentally on the same day, a court in
Hueheutenango Department sentenced an ex-PAC leader and a
former town mayor to six years and two years in prison,
respectively, for their roles in the kidnapping of
journalists during an October 2003 highway blockade by ex-PAC
members.


3. (U) President Berger reacted to the latest ruling by
announcing that the GOG would abandon efforts to obtain
approval of individual cash payments to the ex-PACs. Berger
restated his willingness to work with ex-PAC leaders and
suggested that reforestation or other community development
projects would be viable alternatives to cash payments.
Ex-PAC leaders said they would consult among themselves
before responding, but two insisted that Berger comply with
his campaign promise to provide cash payments. Another
ex-PAC leader expressed concern that the leaders would not be
able to restrain ex-PACs from violent action if the payments
were not made.


4. (SBU) Comment: The 2003 presidential election saw all
major parties making campaign promises of cash payments to
the ex-PAC members. The Berger Administration tried to
comply, notwithstanding financial constraints, the strong
disapproval of human rights groups and other civil society
representatives, and the perception of GOG weakness created
by its tolerance of disruptive and sometimes violent pressure
tactics on the part of the ex-PAC membership. Despite the
Court's very clear opinion in September 2004 that the
Congress needed to identify a specific funding source for the
payments, the Congress essentially approved an unfunded,
open-ended liability for the government by authorizing
payments to an undetermined number of ex-PACS. The latest
Constitutional Court decision provides the GOG with political
cover for abandoning the scheme, and further ex-PAC attempts
to coerce the GOG will likely meet a firm response.

HAMILTON