CHILEAN LAW AND HAMURABI - Are there any links?

Chile prides itself for being a very legalistic country. At the same time, the general perception is that together with Public Health and Education, the Judicial system is, to put it mildly, a shambles.

 Legalistic in Chile has two facets. One is that it is a very litigious country, possibly even more than the USA, and the other is the mere adherence to the letter of procedure rather than the spirit or fair outcome of any legal process. Possibly the best example of the latter are the secret laws of the military government. During the Pinochet years, the Junta, which combined Executive and Legislative powers, enacted a number of laws which were not publicised. Amazingly, after nearly 20 years of what passes as “democratic” government, not only are the 150 or so such texts still valid in principle, but they are still secret. Some of them did leak out and they consider no less than the death penalty for doing some things that you were not even aware were prohibited (obviously, because the laws were secret).

How could the secrecy be combined with a travesty of legality? Easy, and an excellent example of distorted legalese. Under Chilean principles of Public Law, the final stage of a piece of legislation is its publication in the state gazette, the Diario Oficial. Thus, the text was published in that gazette of which a sole single copy was printed and filed. The procedure was thus respected but nobody could have access to its content.

Another feature of Chilean law is that the legislative process is extremely undemocratic. Though the Executive and parliamentarians can propose laws like elsewhere, not only is the process very tortuous in order to avoid or delay as much as possible anything that would upset the current cosy apple cart, but even after that obstacle is crossed, if at all, the trials and tribulations are not finished.

There are two further institutions, whose unelected members mainly consist of individuals with dubious political and religious backgrounds. One is the Constitutional Tribunal, and the other the Comptroller General of the Republic. Whereas in other countries such or similar institutions exist only in order to give a ruling on extreme cases and situations, in Chile they have become a common additional step of the legislative process, acting according to their hang-ups and allegiances rather than in the spirit of common law and justice. A recent example of that is the ruling on the distribution of the morning-after contraceptive pill, which both organisations (heavily devoted, particularly the Comptroller General, to the Opus Dei) banned the state from handing out to people of limited means, whilst leaving untouched the possibility of the upper-class trainee tarts of the barrio alto to buy it expensively over-the-counter at any chemist’s. Talking of chemists, one of the chains recently shown up as having participated in a price-fixing cartel has now taken the matter up to the Constitutional Tribunal, in protest against one of its former partners in crime who agreed to cooperate with the courts. What the fuck this has to do with a Constitutional matter beggars belief.

Such corruption of the mind is of course widely accompanied by corruption in kind, examples of which abound despite efforts to black them out, and whose perpetrators are rarely punished.

To the extent that the first comprehensive code of justice that came to us is the table of Hamurabi which is kept at Paris’ Louvre museum, I thought it might be worthwhile comparing what the King of Mesopotamia thought of thousands of years ago, with the reality of “modern” Chilean justice.

For this exercise, I am heavily indebted to an article by Frank Holt, professor of history at Houston University, who stimulatingly described the Hamurabi principles in an article published in the May/June 2009 issue of Saudi Aramco World magazine. You may find the full article at www.saudiaramcoworld.com/.../i.pillar.of.justice.htm.

I have another reason to take Mesopotamian legal history as a basis for comparison, beyond its pioneering status. For over two centuries, from the time my paternal grandmother’s family crossed the water from Persia to Iraq in 1763, joined in the late 1880’s by my grandfather and his brother who came from Turkey and bought most of what is now the land in and around Fallujah, my family lived in the land of Mesopotamia. If to that I add my own strong belief in truth and justice, there is no need to be a lawyer to write about the law.

ABOUT HAMURABI’S WORK King Hamurabi was an Amorite, a Semitic tribe originating like all Semites in the Arabian peninsula, who moved West and settled in Mesopotamia around 1900 BC. Their capital was Babylon, and in 1792 BC Hamurabi became king, starting a reign of 42 years. Though best remembered in the public eye for his legal code, he was a major diplomat and empire builder, among a people who greatly advanced sciences such as Astronomy and Mathematics.

The code of Hamurabi is believed to have come into being towards the end of his long reign, and is inscribed in 3800 lines of cuneiform writing on a 2.25 metre-high black basalt rock, which was broken in two by the time it was found in the early years of the XXth century by French archaeologist Jacques de Morgan and his team.

The actual legal body of the text describes some 282 litigious situations and rulings (dinat sharim), and the final section has a warning of terrible consequences against anyone defacing the stone, or “corrupt its words in any way”, even if the perpetrator was another king.

NOT ALWAYS AN EYE FOR AN EYE The best known facet of the Hamurabi Code is the symmetrical punishment of “an eye for an eye” etc..In fact, it was not a uniform principle. Like in Chile, different layers of society were treated differently when it came to applying the law. However, unlike Chile, this was clearly set out from the start, without any pretence at the universality of the law.

Mesopotamian society was divided into three distinct classes, membership of which could affect the “remedy” doted out by the judges. The upper class were the “awilum”, followed by the subordinate but free class (the “mushkenum”). At the bottom of the ladder were the slaves or “wardum”.

If the crime was committed within a given status class, then the symmetrical punishment applied. However, if the victim was of a lower class than the perpetrator, then the severe consequence would be replaced by a simple fine (if the victim was a slave, the fine was collected by its owner). In Chile , the lower classes are lucky if they can get as far as a court at all, and if they do, their incompetent or legal aid-appointed lawyer cannot compete with the strength and bribing power of the upper classes.

That is why of course a notorious paedophile and scoundrel in Chile can get away, literally with murder (and even in another case, be promoted to high public office). For the same unjust rulings, keepers of insalubrious animal homes and kennels where pets were held in unspeakable conditions do not even get fined, but a lady went to jail last week for keeping two cats in her apartment against the building’s regulations, and refusing to pay the resulting fine. An interesting aspect of Hamurabi legislation is about medical malpractice. Doctors were allowed to charge more to the richer patients (nothing wrong with that), but they had to give them their monies’ worth, as a botched operation on an “awilum” could result in a severed hand. In Chile, you have to be rich and powerful to win a medical malpractice case against a self-protecting medical profession where there is not even a collegiate association or register with compulsory membership.

Shoddy builders were punished under Hamurabi codes in a very straightforward fashion. If a defectively build construction collapses and kills the son of the owner, it is the son of the builder who is killed. In Chile, it takes years of expensive litigation (at the victim family’s expenses) to generally get nowhere. The death of the eldest son is interestingly one of the main consequences of the Armenian Curse, a phenomenon brought to my attention by an Australian friend, and I assure you in most cases it is pretty successful.

FALSE TESTIMONY There is one essential aspect of Hamurabi’s Code, which is also part of the Ten Commandments (actually the Ninth), and that applies to false testimony (“Thou shall not bear false testimony against thy neighbour”). Though laws against perjury might exist in Chilean codes, my experience is that anybody can accuse anyone of anything and set out a legal process for which the onus of innocence is on the accused rather than the proof on the accuser. Remember the story of the battered wife of general Lucar, who had to fight 12 years in the courts to ascertain her accusation and get rid of a counter-accusation by her husband for “an insult to his dignity”. I wrote about the case in a recent Monthly Defence Review.

False testimony, until a few years ago, was actually institutionalized in Chile. This was in relation with the civil annulment of a marriage, at the time when there was no divorce law. The only way to legally have your marriage declared null and void was to “prove” that the original marriage papers were incorrectly drawn. You therefore brought witnesses in who swore that at the time of obtaining the licence you actually lived at another address than the one you declared. Not only the divorcing parties, but the lawyers and the judges were all aware of the travesty and went along with it.

Nowadays, I have learnt the hard way that the very “neighbour” God mentions through Moses can put in totally preposterous accusations against you and they are received without batting an eyelid by the police and the procurator-fiscal, without a second’s thought about its veracity. Hamurabi was pretty drastic about such behaviour. If..anyone fails to prove his case, then that accuser shall be put to death”. As simple as that..

Further down that section (which is one of the first ones to be addressed in the Code), it is specified that any judge whose incompetence leads to a wrong decision is removed from the bench. In Chile they are promoted to the Supreme Court or Constitutional Tribunal, where they pontificate towards even larger iniquitous cock-ups.

CIVIL LAW Contrary to Chile, Hamurabic legislation made divorce easy, but also contrary to Chile, it was much stricter in codifying and applying aspects pertaining to the division of property and the welfare of small children. We know that to be able to receive alimony payments, even under court orders, is an ordeal for most ex-spouses in Chile.

To the extent that it was a polygamous society, it was more progressive than the Islamic principles that came into force some three thousand years later. You could not just get rid of a wife like that on acquiring a new one, particularly if she was ill. The protection even applied to slaves with whom the master had children. They could not be sold.

There is also plenty of coverage of financial arrangements, including non-responsibility for debts incurred by partners of a previous marriage . In Chile, you have to fight for years in order not to pay consumer debts incurred by the previous tenants living at your address.

TRIAL BY ORDEAL This attempt to leave to the Gods rather than to a jury the burden of ascertain guilt was taken up by the Inquisition department of the Catholic Church and civilian courts as well, and survived well into the Renaissance period. In Hamurabi’s Mesopotamia, if no concrete proof of a crime was not available, and they were strong presumptions, the suspect was thrown into a river, and if they could reach the other side without drowning, they were deemed innocent.

Though people were last thrown in rivers during the Chilean military government, thy were already dead by that time, so it was not exactly a way of establishing guilt or innocence. However, taking up or defending yourself in any court case in Chile is another type of ordeal. It is an ordeal of patience, because it takes years. It is an ordeal of money, because it costs a fortune, and it is an ordeal of immorality, because of the incompetence, partiality and corruption involved.

ELECTORAL IRREGULARITIES This last section has little to do with Hamurabi because there were no elections to speak of in his time. I would like to refer to the hysteria regarding the Iranian election results, and would like to ask on what grounds do foreigners sitting thousands of miles away have concluded that there was “massive fraud”? What are the sources? The protesters from the losing side (whose candidate by the way had a beautiful campaign song with a melody taken from an old Armenian song, Sirun Sari Yar “Beautiful Mountain Love”). The protests are huge? Well, 37 % of a big population is a lot of people, and life in Iran is hard. The accusations? Not enough voting bulletins in some polling offices (par for the course in many developing countries). Paying money for votes (ditto, Chilean candidates in recent years have been distributing bags of food and paying utility bills in their election districts. What is the difference?). Pressure on voters (Yeah, that is a good one, with several Chilean corporations regularly threatening their staff with dismissal if they did not vote for the bosse’s choice). Ubiquense!

HUEVADA DE LA SEMANA This week’s Huevada is almost tailor-made for the subject matter treated above. A long-established foreign businessman in Chile was moving out of a parked position in front of a bank branch. Unwittingly, he hit the mechanism that operates the entrance shutters (it was after closing time), hardly noticing anything apart from a slight bump he did not pay much attention to.

Fast forward to a few months later, when he attempts to leave the country on a business trip. He is arrested at the border for “evading justice”. That is the first time he heard that he had a legal case against him. The bank’s security camera recorded the incident and identified him through his number plate. At no time did the bank, its lawyers, the police or any court make any attempt to contact him. A court case obviously took place in abstentia, and he was ordered to be arrested, unbeknown to him (this is the “developed country which is applying to join the OECD). He had to spend some time in jail until his lawyer bailed him out. The bank was approached and an indemnisation settlement agreed upon and paid.

End of the matter, you might think. You would be wrong. When he next attempts to leave Chile, he is detained again and informed that as the matter “is still outstanding” (it was not), he was having his wrongly-named “indefinite” resident status cancelled. He could of course appeal, (“we are a legalistic country, you know”) but during the six months it takes for the appeal to be considered, he cannot leave the country (not very practical when you are a busy foreign businessman).