In what the BBC has called an ‘unprecedented’ move, the Chilean National Association of Magistrates of the Judiciary has apologized for failing to protect the rights of those persecuted by the Pinochet regime in the 1970s and 80s. Coming just a week shy of the 40th anniversary of the September 11, 1973 coup that brought Pinochet to power, the judicial apology appears to come as part of a broader moment of reflection.
Although the executive branch and security forces clearly had the most to answer for at the time, it seems the judiciary played an entirely passive role:
The magistrates’ association acknowledged that the Chilean judiciary could and should have done much more to safeguard the rights of those persecuted by the dictatorship. It said the judges had ignored the plight of victims who had demanded their intervention.
Chilean courts rejected about 5,000 cases seeking help on locating missing loved ones abducted or killed by the authorities. Critics say their usual response was they had no information about their fate.
Such a judicial apology raises an interesting set of issues. Apologies are often seen as sensitive because even as symbolic acts, they can have material consequences. There is a fine line between taking moral responsibility for atrocities and taking legal responsibility for them and compensation claims are usually quick to follow.
For instance, the recent admission by the Farc in Colombia that it shared responsibility for the suffering that has resulted from its prolonged insurgency is seen as a prelude to wrangling over its liability to compensate victims in the ongoing peace negotiations with the Government.
However, apologies are usually issued by the executive or perhaps the legislative branch, with the consequences likely to be handled through the courts or administrative reparations programs. When a Court admits liability for violations in the form of systematic failure to provide remedies, what are the consequences of that? Its hard to imagine that the relatives of the disappeared turned away twenty years ago would be permitted to go back to those courts now in order to sue them.
It is also interesting to query whether this could lead to a trend. I suspect TN readers can think of other courts that may have failed to take the high road in the past or are neglecting to do so now. Any nominations for the next few judiciaries that should be getting in line for some sackcloth and ashes?