A Whole Lotta Law, Not A Lotta Justice

Today I attended a Teach In with my Poli 332 Latin American Governments class at the Liu Institute for Human Rights at UBC about the case of Jose Figueroa, an El Salvadorian man facing deportation from Canada for his involvement with the "Frente Farabundo Marti para la Liberacion Nacional" (FMLN) organization. After being upfront about his involvement with this group when he came to Canada in 1997, the Canadian Boarder Services Agency (CBSA) served Mr. Figueroa with a notice for an ‘inadmissibility hearing’ in December 2009 that alleged his affiliation with the FMLN during the El Salvadorian civil war made him a threat to Canadian society. That the FMLN is not on Canada’s official list of Terrorist Groups is apparently irrelevant to being assessed a national security threat in this case, although I do not see how. While the old adage says that one man’s freedom fighter is another man’s terrorist, this saying hardly applies to Mr. Figueroa’s case.

Mr. Peter Engelmann, Mr. Figueroa’s laywer, described the Canadian security legislation as being aimed broadly at terrorist groups generally and defines 'membership' in a terrorist group loosely, rather than based upon a well-defined account of what constitutes a terrorist organization and membership in it. Canada’s security legislation adopted post-9/11 defined membership in such a way as to include anyone who is a part of an affiliated organization. Whether or not that group actually participated in any terrorist attacks or not is irrelevant to the Canadian legislation. While it was expected that government officials would be able to use their discretion in the judicial use of these broadly defined security powers, this has clearly not been the case for Mr. Figueroa.

Mr. Figueroa was indeed a member of the FMLN, but he was only a recruiter at the University of El Salvador working through the Student Union. His job was not to knowingly recruit students for clandestine operations bombing government forces as one might have reasonably guessed for someone facing deportation for terrorism allegations. Beginning in 1985 he simply raised awareness of the worsening abuses that the Arena government was perpetrating on the Salvadorian people, and tried to get students to join up. He bears no special responsibility for what these members did or did not do after joining.

Canadian law describes a terrorist act as one that knowingly and willingly targets civilian non-combatants to achieve the groups desired end state. During the civil war, atrocities were being committed on both sides. A faction of the FMLN certainly undertook a systematic and organized campaign to intimidate and kill elected civilian mayors in parts of El Salvador. The perpetrators of these murders, and all others, need to be brought for justice so that El Salvador can recover from its past and move on towards a better future. But to arrive at a proper understanding of the complex phenomenon that was the El Salvadorian civil war, one must also take into account the context within which the FMLN was active. The UN Truth Commission found that 85% of the violence was undertaken by agents of the states, often paramilitary death squads who persecuted suspected subversive elements of society.

Today, FMLN enjoy widespread support in El Salvador. This is a picture of the party's national convention in 2009.

Sadly, Mr. Figueroa has been determined by the CBSA to be inadmissible to Canada despite the fact that the FMLN is not on any state’s list of terrorist groups, and is in fact at the head of the legitimately elected government of El Salvador. As has been mentioned, he was a student recruiter and the case against him does not involve any allegation that he was a combatant. Mr. Figueroa never harmed anybody directly, and has been upfront with the Canadian government the entire time he has been here.

 But Mr. Figueroa bears no responsibility for the actions of these persons. The decisions for this assassination campaign were made by higher-ups, so it does not make sense to find Mr. Figueroa inadmissible to Canada on that basis.

The UN Truth Commission report, in a section called "Phenomenology of Violence", argued that every member of an organization cannot be held responsible for the actions of other members, unless it was evident that the entire organization was engaged in said activities in a systemic matter. The FMLN was founded upon a desire to end the intense repression perpetrated by the state government through peaceful protest, not through illegal killings. Therefore it makes no sense to lump together those members engaged in honest awareness raising of an objective reality with those few who committed atrocities.

Perhaps even more unjust than the deportation itself will be the effect it has on his family. He has an autistic son who will be faced with two possible realities: a future without a father but with proper education for someone with his condition in Canada, or a future with a father but with inadequate education facilities in El Salvador. Either way, his son will be missing something very important in his life.

The final decision on Mr. Figueroa’s case now rests with the Minister of Public Safety and the Minister of Immigration, who could both individually give him special exemption from the finding of his inadmissibility hearing. That his future hangs in the balance waiting for a politician in Ottawa to wake up one morning with the answer to this complex issue is perhaps the topic for another blog post, but here I will say it reflects poorly on the democratic accountability and transparency of our government’s security policies.

If you are interested in learning more about Mr. Figueroa’s case, please check out his own blog at http://josefigueroaimmigrationordeal.blogspot.com/ .