Note: This piece originally appeared in Spanish in the Due Process of law Foundation’s blog. To read the original piece, click here.
Amid the coronavirus crisis, some countries are also facing an epidemic in their judicial systems. Criminal groups are taking advantage of the current situation to foment corruption and guarantee impunity for their misdeeds. One of the likeliest risks of the pandemic is that white-collar thieves and corrupt politicians will use the crisis to appropriate money destined for humanitarian aid and thus fill their pockets. For this and other reasons, criminals have an interest in controlling justice systems.
In Guatemala, the justice system is increasingly losing credibility, as evidence emerges that the courts have been co-opted by organized crime, drug trafficking, and corruption networks. For decades, the process of electing the highest authorities in the justice system has been riddled with illegalities, weakening the institutions that comprise it.
The start of the COVID-19 epidemic coincided with one of the biggest scandals regarding interference in the justice system by criminal groups. In mid-February of this year it was revealed that the Attorney General’s office (AG) had begun an investigation into how a powerful politician in preventative detention awaiting trial on five separate corruption charges—and known for his use of public funds to become a millionaire—was able to get a judge to grant him permission to carry out his preventative detention in a private hospital, from where he was able to manipulate the selection of high court magistrates.
In the hospital—which served as his cover—Gustavo Alejos, the former private secretary to ex-president Álvaro Colom, set up a headquarters to meet with deputies, commissioners and potential magistrate candidates. Those who attended meetings with Alejos were received with delicate meats and fine spirits, in an area with a full bar set up for those meetings.
It should not be forgotten that in recent years important battles against corruption have been waged in Guatemala. With the support of the International Commission against Impunity in Guatemala (CICIG), the office of the Attorney General managed to investigate and prosecute public officials in all branches of the State, including two presidents, multiple ministers of state, congresspersons, judges, etc. Many of them were imprisoned with Gustavo Alejos and today, likely support his efforts to influence the election of the courts.
As a result of this investigation, known as “Parallel Commissions 2020,” on February 24, the Attorney General requested regulatory amparo protection against the election of magistrates for the Supreme Court and Court of Appeals for the 2019-2024 period. Accepting the request for provisional protection, the Constitutional Court suspended—for the third time—the selection process that began in June 2019 and to date has not been completed due to various anomalies.
In Guatemala, all positions of the highest courts are renewed every five years. Congress elects 13 magistrates for the Supreme Court of Justice and almost 150 judges for the Courts of Appeals across the country. The formal qualifications required by the Constitution to access these positions are minimal: any lawyer with five years of professional experience can be an appeals judge and any lawyer with 10 years of experience, and who meets other basic conditions established by law, can be a Supreme Court magistrate. Although the judicial career is constitutionally recognized, politicians—gathered in congress—retain the right to appoint the members of the highest ranks of the judicial system, and in this way, maintain influence over them.
The selection process is very complex. First, two Nominations Commissions are formed: one to elect the members of the Supreme Court and the other for the Courts of Appeals. The commissions are made up of three groups: (i) magistrates, (ii) deans of law, and (iii) representatives of the Bar Association, elected via a vote by all union members. As established in the Nominations Commissions Law, these bodies determine the profile for candidates, and approve an evaluation mechanism and a grading table. This means that in many instances, unnecessary requirements for fulfilling the judicial function are established, or a profile different from that of a career judge is given priority, thus prioritizing the entrance of people from outside of the judiciary.
Then, applicants submit their applications, together with the required documents. After that, a list of applicants is published in the media, and a period is opened during which the general population can speak out and present any objections to the list. Applicants whose candidacies are objected to are allowed to present a defense to said objections. Next, the Commissions study the objections and, if appropriate, they dismiss the applicants, or reject the claims presented. Subsequently, they proceed to evaluate the candidates, assign a grade to each file, and make a list with the names of those who have obtained the most votes. Finally, the Commissions send Congress a roster with twice as many candidates as needed to fill the vacant positions.
This selection mechanism, established in the Constitution since 1993, instead of raising the quality of those elected, led to the politicization of universities and lawyers’ unions. In addition, organized crime and other groups with an interest in controlling the justice system have been developing different strategies to influence the election.
Returning to the regulatory amparo protection presented by the Attorney General, it denounces—claiming as fact—the imminent threat that Congress will elect magistrates for the 2019-2024 period who do not meet the requirements of capacity, suitability and honesty established in the Constitution. It also invokes the violation of judicial independence and the legal principles of legality, security and legal certainty. The AG argues that: “[t]he rosters submitted by the Nominations Commissions had been manipulated and influenced by people facing criminal charges, which indicates that there was a co-optation by certain groups to exert influence over the election of various candidates who engaged [with them] and who subsequently were included in the respective rosters.” It indicates directly that: “there is interest, on the part of Gustavo Alejos, in manipulating the election process of magistrates.”
After analyzing the case, the Constitutional Court issued a ruling on May 6, 2020, in which it considered that, although during the selection process for magistrates it is the Commissions who are responsible—in the first round—for judging candidates on the requirements of suitability and honesty, Congress—in the second phase of the proceedings—must also carry out an analysis of the qualities of those aspiring for office, so that the selection guarantees independence in the administration of justice.
The Court emphasized that citizens have the right to have a judicial branch directed by authorities who act objectively, impartially and independently. In addition, it recognized that the constitutionally established model for the election of magistrates “has been worn out.” The Court also affirmed that, for judicial independence to materialize, the conformation of the Judicial Power must be carried out based on the highest standards of probity, suitability, honesty, responsibility, integrity, and capacity in professional performance. The Court additionally indicated that it is imperative that those who administer justice are removed from any interference so that the justice system is truly independent.
In the operative part of the order, the highest Constitutional Court granted the protection requested by the AG and ordered: a) that the AG submit to Congress, within a period of 10 days, a detailed report of all the candidates on the rosters submitted to Congress and their connections to criminal proceedings or ongoing investigations; b) that, once that report is received, the Board of Directors of Congress make it available to all members of Congress within 24 hours, so that they can analyze them and within a period of 20 days, determine whether there are circumstances that call into question the suitability and honorability of the candidates; c) that, at the end of this period, the Board of Directors convene, within five days, a plenary session to proceed with the selection; d) that the selection comply with the principles of transparency and publicity; e) that the appointments obey the standards established in the Constitution regarding capacity, suitability and honesty. Lastly, the Court urged Congress to enact a constitutional reform that would make possible a process for the selection and appointment of magistrates in which the above mentioned constitutional standards can be guaranteed.
Although the Constitutional Court granted the protections requested by the Attorney General’s office and has presented certain guidelines on the selection process to Congress, there are two situations that make it difficult for this body to carry out an election of magistrates that complies with constitutional principles and international standards.
First, it is no secret that drug trafficking and international organized crime have already infiltrated Guatemalan institutions, and that Congress is no exception. The leaders of the strongest parties or parties with greatest representation in Congress have been implicated in different cases of corruption or in connection to drug trafficking networks. Sandra Torres, the presidential candidate in the last election from the UNE party (Unidad Nacional de la Esperanza) is implicated in a corruption case for illegal campaign financing. In fact, the UNE party is the political party that allowed Gustavo Alejos to become private secretary to former president Colom, and in the Parallel Commissions 2020 scandal, it was established that current lawmakers met with Alejos “in the hospital.” In another case, the leader of the UCN party (Unión de Cambio Nacional)—the third-largest party in Congress—and 2018 presidential candidate was convicted in the United States for drug trafficking.
Second, if the Constitutional Court recognizes that the election model has been “worn out,” then it is not possible to correct in Congress the errors that have been dragging the process. There is sufficient evidence of interference by different sectors during the review stage by the Nomination Commissions. The composition of the rosters was manipulated from the beginning of the process, and the fact that a candidate is not involved in a criminal case does not ensure their suitability or integrity, nor does it imply that they have the competencies needed to perform in the judiciary. The parameters set by the Court are not sufficient to guarantee the capacity, suitability and honesty of the nominees.
To guarantee that Guatemala continues to be a paradise for criminals, with levels of impunity greater than 90 percent, criminals need to control the justice system. Allowing Congress to carry out the selection of magistrates in this context, without guaranteeing an objective and deep evaluation of the candidates, is equivalent to condemning the country to become a state without justice, a failed state, where the law remains in the hands of criminal groups.
Under the current circumstances in which the justice system is required to act with complete independence and impartiality, it is imperative that those who evaluate the candidates are tried and tested individuals, exempt from any political bias or sectoral interests. For this reason it is necessary for Congress to seek the support of national and international legal experts capable of carrying out a true process of evaluation of those who make up the candidate rosters.
There are examples of other countries that, when facing similar extraordinary circumstances, turned to the international community for support in the selection of their courts. In Ukraine, a panel of experts was formed to accompany the appointment of judges for their anti-corruption courts. In Colombia as well, the members of the Special Peace Tribunal were appointed through a process in which Colombian and foreign jurists participated, who themselves had been appointed by figures with international recognition and prestige.
Congress has the authority to appoint advisers and establish an international oversight mechanism for the process of electing the members of its highest courts. International human rights watchdog organizations should support Guatemala in rescuing its institutions and provide the tools that would allow them to objectively determine the candidates that meet the highest international standards to be magistrates in the country’s highest courts.
Relying on the impartiality and independence of judges is an essential requirement for the justice system to operate effectively and, therefore, be able to solve the grave problems we face in this new era.
Claudia Escobar Mejía is a Centennial Fellow at Georgetown University. She is an expert in the topics of justice and anti-corruption.