Very High Stakes – Elections to the Constitutional Court

By the 23rd March, the five individuals who will serve the next 5-year term on the Guatemala Constitutional Court must be named in order to be sworn in and to take office on the 14th April. This is the date that their mandate is due to begin. If the Constitutional Court falls into the hands of corrupt Congress members and corrupt business interests, it could do untold damage to any chance of Guatemala being a functioning democracy. The stakes are incredibly high.

Jonathan Menkos Zeissig puts it bluntly, in Gato Encerrado, “looters have managed to illegally finance political parties to form majorities in Congress in order to pass laws that lower taxes in their economic sectors: exports, real estate and financial services, among others. They also managed, in an opaque way, to enrich themselves through the privatization of the telephone network, electricity distribution, the national airline, granaries and roads…. Corruption is rampant in municipalities, central government, and autonomous entities”. It would be wrong to place all the corruption at the feet of politicians as powerful business elites also have their noses in the trough.

The lack of transparency, noted above, erodes a major pillar of democracy. Citizens should be able to know what is going on and so be able to make informed decisions. This openness should improve participation and also improve accountability.

Transparency International asks, ‘What is corruption?’ They define it as ‘the abuse of entrusted power for private gain. Corruption erodes trust, weakens democracy, hampers economic development and further exacerbates inequality, poverty, social division and the environmental crisis’.

For the business elites, for CACIF, for example, the fact that it hampers economic development, is of little interest, for as long as it doesn’t hamper personal enrichment. CACIF were quite happy to see the back of CICIG and we do know that Guatemala business interests invested considerable sums in currying the favour of the Trump administration allowing the work of CICIG to be undermined. Francisco Goldman, in The New Yorker magazine, describes this and the manoeuverings of some of those involved in undermining the rule of law in Guatemala and hoping that the new administration will seek ways to rectify this.

Guatemala is on the brink and one feels that the Constitutional Court is the last bastion of legality in a stink of corruption. That is what makes this upcoming selection so key for the future of the country.

The UN Office of the High Commissioner on Human Rights placed the situation of the Constitutional Court, and attacks upon it, in context so: ‘the Constitutional Court and its judges have faced attacks from the Supreme Court of Justice, the Office of the Prosecutor and from Congress. Decisions rendered by the Constitutional Court……have not been complied with by Congress or the Supreme Court’. Effectively, the highest court in the land is being willfully ignored by the Supreme Court, the Attorney General and the government. Why? Because the Constitutional Court has been able to put a brake on some of the most egregious attempts at corruption and continues to challenge impunity.

Héctor Silva Ávalos wrote, last year, in Insight Crime, that, ‘Attorney General Consuelo Porras approved nine new administrative complaints against Juan Franciso Sandoval and two other prosecutors within the unit he directs, the Special Prosecutor’s Office Against Impunity (Fiscalía Especial Contra la Impunidad – FECI)’. The fact that the Attorney General does not support FECI, is telling in itself. In fact, she is continuously seeking to undermine it. FECI is one of the few institutions left in the country to be continuing the mission of CICIG, in investigating corruption.

Adriana Beltrán writes in WOLA, that ‘The battle for control over Guatemala’s justice system will determine the country’s ability to fight the corruption that is weakening its institutions, draining state coffers, impacting the government’s ability to confront crises…..and leaving many Guatemalans to feel as though their best shot at a life with economic opportunities and basic dignity is to migrate’.

The separation of powers is an important element in maintaining a strong rule of law, and this separation requires that the nominations of judges does not fall prey to politicization. In Global Americans, Will Freeman writes that the nominating, or ‘postulation’ commissions, are made up of judges, law school deans and lawyers, and have a key role in selecting the courts for the Supreme Court. Though needing to be neutral, the commissions have long remained under the de facto control of Guatemala’s powerful business and political elites, inventing fake credentials, bending procedural rules, and accepting bribes to make sure the elites’ hand-picked nominees control the bench. In late 2019, the Constitutional Court suspended the selection process for the new Supreme Court, citing alleged corruption within the commissions. This earned the Constitutional Court the enmity of those seeking to corrupt the rule of law.

This is to provide some background to the importance of the Constitutional Court in the fight against corruption and impunity and why members of Congress and business elites are keen to wrest control of it. Published on the Vance Center website, last month, The Lawyers Council for Civil and Economic Rights, put out a paper on the upcoming selection process and included four key recommendations for transparency and for maintaining the rule of law in Guatemala:

  1. Conduct an open, transparent, and participatory process to avoid politicization and close spaces for corruption, and allow the legal community and the public to contribute to the assessment of candidate
  2. Political decision-making entails the exercise of discretion, but not arbitrariness; political bodies must justify and give reasons for their decisions
  3. It is essential that the legal community and the private sector in Guatemala get involved and participate in the selection process
  4. The evaluation of the candidates must be guided by criteria that underscore professional capacity and integrity

Francisco Goldman makes the point that, ‘Biden’s election to the Presidency has raised hopes among Guatemalans that he will help revive the anti-corruption work once done by the commission [CICIG]’.

It could start by, tacitly, keeping a watchful eye on the upcoming process of electing the new Constitutional Court.

You can read Jonathan Menkos Zeissig’s piece in, in Spanish, in Gato Encerrado, here: Memoria del saqueo

You can learn more about how Transparency International defines corruption, here: What is corruption?

Francisco Goldman’s piece in The New Yorker can be read here: Biden Can Revive Latin America’s Most Successful Anti-Corruption Project.

You can read read the full comment from UN Office of the High Commissioner on Human Rights here: Guatemala: Attacks against Constitutional Court and delays in appointment of judges to high courts must stop.

You can read the full article by Héctor Silva Ávalos, in Insight Crime, here: Guatemala’s Attorney General Lashes Out Against Anti-Corruption Prosecutor’s Office

You can read Adriana Beltrán’s piece, in WOLA, here: Behind the Fight to Hijack Guatemala’s Justice System

Will Freeman’s piece in Global Americans, can be read here: #CortesNoMafias: Guatemala’s Constitutional Court under attack

The Lawyers Council for Civil and Economic Rights’ paper can be read on the Vance Center website, here: 2021 Selection Proceedings for Guatemala’s Constitutional Court. Key to Protecting the Country’s Rule of Law. The Vance Center also organised a series of virtual engagements with the Guatemalan Association of Judges for Integrity, here, Vance Center Implements Support for the Guatemalan Association of Judges for Integrity

Categories: Corruption, Culture, Guatemala, Human Rights, Justice, Legal, Lobbying, Migration, Poverty, Presidential Elections, Report, Solidarity in Action, Violence

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