Social security expert stunned by Ortega’s seizing pensions

 Confiscating retirement pensions, as the Ortega regime has decreed against the 316 citizens they stripped of their Nicaraguan nationality, is “a legal infraction,” a violation of a human right, a “strange” and “arbitrary” decision that constitutes a violation of the fundamental constitutional right. As such, it can be appealed internationally, according to four experts on the subject consulted by Confidencial.

On February 9, 222 political prisoners were loaded onto a plane bound for the United States. Before the aircraft touched down at an airport in Washington, judges loyal to Ortega and Murillo expatriated them. Six days later, a list of 94 other citizens was published. These too were declared stateless, their property was confiscated, and the pensions of those already retired were cancelled.

“That not only runs contrary to the existing Pension Law in Nicaragua and to the right established in the Constitution, but it’s also a human rights violation, because they’re denying the pensioners their principal source of income, condemning them to abject poverty. In my 65 years of working on the topic [of social security] all over the world, I’ve never seen a legal infraction like that,” assured exiled Cuban economist Carmelo Mesa-Lago, an international expert on pension systems now living in the U.S. Mesa-Lagos is a Professor Emeritus at the University of Pittsburg and a consultant for numerous international institutions, as well as a member of the US National Social Security Academy and the Latin American Academy of Science.

In addition to speaking with Mesa-Lagos, Confidencial  also interviewed three Costa Rican specialists – Juan Manuel Cordero, Vice Minister of Work and Social Security; Seidy Alvarez, president of the board of directors of the National Teachers’ Pension Board, and Attorney Miguel Ortiz, a professor who specializes in Public Law. The three explained not only the impossibility of their own country’s committing a similar violation, but also the international mechanisms and instruments that protect those affected.

In referring to those legal instruments, Deputy Minister Cordero noted that the regime’s decision, “could come up against some parameters of the accords signed with the International Labor Organization, as well as some of the protective agreements in the Ibero-American System of Human Rights. As a result, in Costa Rica such a unilateral government decision to cancel a pension right earned under the precepts of the law would be unthinkable.”

Legal options

In discussing more broadly the regulatory framework of the right to Social Security, Attorney Miguel Ortiz mentioned in the first place the American Convention on Human Rights, which contains the positive norms that are used in such cases. “All rights are protected there, including that of Social Security,” which includes pensions. “There are regulations protecting those rights,” he stipulated.

His recommendation — based on a legal practice in which States must abide with the law — is: “first exhaust the channels within the country, even if the courts reject it. The process must begin with the Judicial Branch.” That means exhausting the legal route, in accordance with Constitutional precepts that protect the human right to a pension or Social Security.

Ortiz explained that once the national avenue has been exhausted, the case must be brought to the site of the Human Rights Commission that the Inter-American Court of Human Rights (IACHR) maintains in each country. However, since it’s the government’s role to raise the issue, and “Nicaragua will never raise it, the Commission has already accepted that other existing organizations can file the complaint,” he continued.

The attorney was referring to citizens’ organizations, be it ones dedicated to defending freedom of expression (including journalists’ organizations) or civil associations that defend any of the rights. Once the complaint has been put before the Commission, there’s an initial procedure to see if the case being denounced classifies as a human right. If the Commission determines that it does, the case moves on to the Inter-American Court.

Ortiz recognized the impossibility of initiating this complaint within Nicaragua, given the legal and political insecurity there. As a result, he proposed presenting the case directly to the International Human Rights Court site located in San Jose. The attorney is convinced that “the Inter-American Commission here could be a bridge to presenting it.”

Legally impossible

The concept of Social Security implies enjoying a pension after fulfilling the conditions for earning the right. “It can’t be taken away, according to the national legislation. Extrapolating from this concept, it also clearly relates to the topic of human rights,” the public official added.

For her part, Seidy Alvarez also confirmed that no part of the Costa Rican legislation would allow the confiscation of a pension that has already been approved, for any reason. “Once the right is acquired, it’s a lifetime right. Some plans even permit the pensions to pass on to a survivor,” she added.

“It feels strange to me to even think that could happen, seeing that the pension is a right acquired through work, years of service, of for a service,” she stated, referring to the fact that in Costa Rica there are war pensions, although the country’s last armed conflict was in 1948. “However, in general, the pensions represent compensation for years of work,” she noted.

In addition to being a human right, as Attorney Ortiz emphasized, the topic of pensions is framed within the issue of legal security, and of the rights acquired under the Law. For this reason, Deputy Minister Cordero finds “unthinkable” the idea of an “arbitrary suppression at an administrative level of a pension benefit.”

Failing to protect that income for an elder is inexcusable, because “the pension is a person’s lifeline, once their working years are over. So, it seems to me that it’s of the highest importance. It represents years of service while depending on a salary, and once their working life is over, a person’s pension becomes their way of subsistence,” Alvarez concluded.  

This article was originally published in Spanish in Confidencial and translated by Havana Times.