Guatemala is facing yet another assault on democracy and the rule of law. Last week, the country’s Congress and Supreme Court launched dubious proceedings to remove and potentially prosecute four judges from the Constitutional Court for alleged abuse of authority. If the move succeeds, it could put the final nail in the coffin for the country’s fight against corruption.
The attack on the Court follows months of tension between two key players in Guatemalan politics: on one side, an alliance of powerful lawmakers and judges with links to organized crime; on the other, a dwindling number of anti-corruption reformers. Since the United Nations-backed International Commission Against Impunity in Guatemala (CICIG) shut its doors last September, the former group has clearly gained the upper hand. However, the reformers managed to hold onto at least a few institutional spaces, including the Attorney General’s Office anti-impunity unit (FECI) and the Constitutional Court. Soon, they may be completely shut out of the state.
For the time being, Guatemala is facing its most severe constitutional crisis in years. Unlike neighboring El Salvador, where interbranch conflict pits a power-hungry executive against the legislature and courts, Guatemala’s current crisis is closer to an intrabranch conflict, with one part of the judiciary attacking the other. The crisis erupted last week, when the Supreme Court, backed by Congress, opened investigations into four magistrates on the Constitutional Court who have generally supported the fight against corruption. Although the OAS, UN, and U.S. Senator Patrick Leahy have all sounded notes of alarm, Guatemala’s President, Alejandro Giammattei, and Attorney General Consuelo Porras have for now stepped aside.
A court under attack
The latest crisis was set off by what might seem like an unlikely catalyst: a long-running debate over the supposedly depoliticized commissions that pick judicial nominees for Guatemala’s Supreme Court and Appellate Courts. In fact, these “postulation commissions”—made up of judges, law school deans, and lawyers—are very consequential. They have a key hand in selecting the Supreme Court and Appellate Courts, who in turn rule on corruption and organized crime cases. In practice, these commissions are far from neutral gatekeepers. Instead, they have long remained under the de facto control of Guatemala’s powerful business and political elite, inventing fake credentials, bending procedural rules, and accepting bribes to make sure elites’ hand-picked nominees control the bench. For that reason, the commissions have been a key obstacle to strengthening the rule of law in Guatemala.
Last September, however, the well-oiled machine nearly ground to a halt. That month, the Constitutional Court suspended the ongoing selection process for new Supreme Court and Appellate Court judges, citing alleged corruption within the commissions. Then, in February, prosecutors with the FECI revealed even more troubling findings: the commissions weren’t just being controlled behind the scenes, they were being controlled from behind bars. Gustavo Alejos Cámbara, a powerful businessman and political broker currently in jail for corruption, had been secretly meeting with Congressional deputies, businessmen, and commission members to decide on the next slate of judicial nominees. The Attorney General joined the Constitutional Court in condemning these “parallel commissions,” but Congress dug in its heels.
By May, the stage was set for open interbranch conflict. Late that month, the Attorney General’s Office published a report requested by the Constitutional Court on the parallel commissions. Legally obtained wiretaps of Alejos’ and his cronies’ cell phones revealed a vast scheme to capture the judiciary. The Attorney General strongly advised Congress to discard the nominees who had met with Alejos or who had been denounced for corruption—not an impossibly high bar. Regardless, on June 24, Congress met in a marathon, overnight session that kicked off the current crisis. The deputies decided to ignore the Constitutional Court and Attorney General and consider the dubious nominees anyway.
Then the real attacks on judicial independence started. On June 26, one of the nominees, José Roberto Hernández Gúzman, denounced the members of the Constitutional Court who had recommended a restart of the process, arguing they had violated the constitution by interfering in judicial appointments. Thirteen Supreme Court judges quickly opened an investigation into the Constitutional Court judges, four in total, on the same grounds. Within hours, Congress was weighing a vote to strip the judges of their immunity. When the Constitutional Court attempted to stop the attacks, President of Congress Allan Rodríguez and his allies doubled down, presented their own denunciation of the four judges for supposedly obstructing justice and abusing their authorities. Now, the fate of the Constitutional Court and Guatemala’s anti-corruption fight hangs in the balance.
The outlook isn’t promising. While a small coalition of opposition parties has come out in support of the Court’s integrity, Guatemala’s most powerful business and professional associations and the nationwide Evangelical Alliance have thrown their weight behind Congress. President Giammattei and AG Porras might be able to break the institutional deadlock, but neither reliably supported the last rule of law institution to come under attack—the CICIG. Meanwhile, proceedings to lift the four judges’ immunity press on. And while the hashtag #CortesNoMafias began trending on Twitter—showing Guatemalans are certainly paying attention—a repeat of the mass protests of 2015 is unlikely. The “Guatemalan Spring,” which saw tens of thousands take to the streets to defend prosecutors and judges from pressure, is now becoming a distant memory.
Rule of law backsliding in the Northern Triangle
The latest crisis shows that the “Guatemalan spring” has given way to winter, but this hardly makes Guatemala unique. Across the Northern Triangle, progress in fighting corruption and strengthening the rule of law has not just been put on pause—it’s now actively being rolled back.
Political scientists use the term “democratic backsliding” to describe the gradual erosion of the institutions that sustain competitive elections. What Guatemala, El Salvador, and Honduras have experienced over the past year might be better described as “rule of law backsliding”: the often not-so-gradual undermining of the institutions that enforce anti-corruption laws. Despite not all being competitive democracies, each country made advances in building a stronger legal system and punishing corruption over the past ten years—no small feat given the Northern Triangle’s history of impunity.
Guatemala and El Salvador put ex-presidents behind bars for corruption, while prosecutors in Honduras went after several high-ranking bureaucrats. Under pressure from their own citizens, all three states set up international anti-corruption commissions, admittedly with more teeth in Guatemala than in Honduras or El Salvador. Yet over the past year, elites—many under investigation—have banded together to undo the progress. Last September, the CICIG shut its doors and remaining prosecutors came under pressure in Guatemala. Honduras followed suit in January, letting the mandate of its own international commission expire and reducing penalties for corruption just this month. Meanwhile, El Salvador’s Attorney General only investigates President Nayib Bukele’s rivals, even as the president refuses to provide any public information on contracts awarded during the COVID-19 response.
We may not know much about how to fight episodes of democratic backsliding, but we at least know how they end. After power-hungry presidents like Alberto Fujimori, Rafael Correa, and Álvaro Uribe leave office, institutional checks and balances tend to come back to life. This is because the worst excesses of democratic backsliding often come down to a particular leader and his or her clique. With rule of law backsliding, however, it may be a different story. Campaigns to weaken courts and prosecutors unite such a broad array of elites that they can outlast the fall of individual figureheads. Guatemalan ex-President Jimmy Morales—who led the charge against the CICIG—left office swamped in corruption scandals, but that hardly put a dent in his allies’ momentum. By that point, his campaign to weaken the rule of law had taken on a life of its own. For this reason, while Guatemala’s present is uncertain, it’s future looks far from optimistic. The challenge for anti-corruption reformers—in the Northern Triangle and elsewhere—is to find strategies to stop the rule of law backsliding before it’s too late.
Will Freeman is a Ph.D. candidate in Politics at Princeton University. You can follow him on Twitter @WillGFreeman
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