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10 Jul 2020 | Commentary

Behind the Fight to Hijack Guatemala’s Justice System

Guatemala is in the midst of renewing its Supreme Court and Court of Appeals. Ensuring impartial, professional, and honest officials in Guatemala’s highest courts is crucial to the rule of law, independence of the judiciary, and advancing the fight against corruption. 

Unfortunately, the process, which began in 2019, has been marred by irregularities and a renewed attempt by corrupt and illicit groups to manipulate the process and its outcome. By influencing the process by which justices are elected, criminal actors aim to find corrupt allies willing to ensure their protection and impunity for their misdeeds. 

Now, as part of their effort to co-opt the justice institutions, they are going after justices, prosecutors, and civil society actors who have protected the rule of law and supported the fight against corruption. 

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 like COVID-19 and climate change, and leaving many Guatemalans to feel as though their best shot at a life with economic opportunities and basic dignity is to migrate.

The election of high courts in Guatemala 

Pursuant to the Guatemalan constitution, 13 magistrates to the Supreme Court and all 135 magistrates to the Courts of Appeal are replaced every four years. The nomination process is entrusted to groups known as postulation commissions, made up of appellate judges, law school deans, and representatives of the Guatemalan Bar Association that submit a list of candidates to Congress. Congress is then responsible for selecting from among the list of nominees. 

A law was adopted in 2009 to make the selection process more transparent and regulated and to allow for greater civil society oversight. In practice, however, the process has been plagued by conflicts of interests and overrun by private, political, and criminal interests seeking to control membership of the commissions and, consequently, the makeup of the courts. Competition over who gets a seat on the commissions, for example, has resulted in the creation of an increasing number of law schools as vehicles for guaranteeing influence over how judges are selected. At the same time, the process has also resulted in judicial nominees themselves competing for political support in order to be elected or to maintain their positions. 

The manipulation of the appointment process was evident in the 2014 election of Supreme Court and Appellate Court judges, which was allegedly the result of a power-sharing agreement struck between Otto Pérez Molina’s Patriot Party (Partido Patriota, PP) and Manuel Baldizón’s Renewed Democratic Liberty Party (Libertad Democratica Renovada, LIDER). Pérez Molina was forced to resign in 2015 amid a major corruption scandal and is currently in pre-trial detention while cases make their way through the courts. In 2018, Baldizón was arrested in Miami for corruption in a case involving Brazilian construction company Odebrecht. He pleaded guilty and was sentenced to 50 months in prison. A year later, he was prosecuted in the United States on a separate case and accused of accepting campaign contributions from drug traffickers. 

The current selection process began in June 2019 but has faced numerous irregularities and procedural failures. For example, observers have noted that qualified judges were excluded from the process without cause and that the postulations commissions failed to implement basic procedures like interviewing and evaluating candidates. Basic information, such as past judicial decisions and financial information, was not made available to help assess the qualification of candidates.

The “parallel commissions 2020” case 

In February 2020, the Special Prosecutor’s Office against Impunity (FECI) unearthed one of the biggest scandals of interference in the justice system by illicit groups. 

According to the investigation, known as the “parallel commissions 2020” case, Gustavo Alejos Cámbara, a powerful political operator and businessman currently in pre-trial detention for corruption, had set up a scheme to influence the selection process. To do this, he held meetings and phone calls with potential judicial nominees, officials and legislators. Due to alleged health concerns, Alejos had obtained permission to continue serving pre-trial detention at a private clinic where many of the meetings took place. Cell phone records seized by investigators revealed that Alejos had contact with at least 41 people involved in the judicial selection process; including 10 legislators, two of whom are part of the current leadership. Investigators also found a refrigerator in the clinic well stocked with meats, beer, and fine liquor and with the names of all the deputies of the current legislature affixed with magnets

Alejos is a businessman who made his fortune by using his political connections to obtain government contracts. He has financed various political parties, including the National Progress Party (Partido de Avanzada Nacional, PAN), the Grand National Alliance Party (Gran Alianza Nacional, GANA), the National Unity of Hope Party (Unidad Nacional de la Esperanza, UNE), and the Patriot Party (Partido Patriota, PP). In 2008, he served as private secretary of former president Álvaro Colom (2008-2012). Alejos has been implicated in several cases of corruption (see the box for more details). On June 8, 2020, the State Department designated Alejos for his involvement in grand corruption and thus he was deemed ineligible to enter the U.S.

Gustavo Alejos and top-level corruption 

Before the parallel commissions 2020 case was revealed, businessman Gustavo Alejos had been implicated in five separate cases of grand corruption:

In 2015, the Guatemalan Public Prosecutor’s Office accused Alejos Cámbara of being the chief architect of a corruption network operating within the Guatemalan Social Security Institute (Instituto Guatemalteco de Seguridad Social, IGGS), which provides health services, pensions, income protection benefits, and employment counseling for salaried employees. According to the investigation, the ring manipulated the medical contracting system to favor certain distributors which in turn earned millions in profits.
In 2016, in another case involving illegal campaign financing and government contracting, Alejos Cámbara was indicted for bribery. The investigation carried out by the Public Prosecutor’s Office uncovered a network run by former President Otto Pérez Molina and Vice President Roxana Baldetti. They received illicit funds from several state contractors, including Gustavo Alejos, to help finance Molina and Baldetti’s 2011 presidential campaign in exchange for preferential treatment in winning state contracts.
In 2018, Alejos Cámbara was implicated in a case involving the misuse of funds allocated to a public transportation system in Guatemala City, known as the Transurbano. In a deal approved by the Colom administration without proper legal oversight, $35 million in state funds were paid to a consortium of private bus companies who had won the contract to manage the bus system. Almost a third of the money was spent on equipment that was never used. Alejos Cámbara was accused of receiving some of the funds.
In 2019, Alejos Cámbara was implicated in a second case of illegal campaign financing. According to investigators, during the 2015 presidential campaign, the National Unity of Hope Party (Unidad Nacional de la Esperanza, UNE) received campaign contributions of over Q19.5 million ($2.5 million) that were never recorded by the Supreme Electoral Tribunal. An arrest warrant was issued against Alejos Cámbara for illicit association and non-registered election financing.
That same year, he was accused of receiving USD$7,297,650 in bribes from businessman José Maynor Palacios Guerra as part of a corruption network involving money laundering and bribery in government construction contracts. To conceal the origins of these funds, Alejos Cámbara purchased offshore assets in Panama and Belize. Then, using fictitious loan contracts with national and international banks, he bought houses and apartments that were later gifted to officials in exchange for political favors. The FECI issued an arrest warrant against Alejos Cámbara for illicit association, laundering of money or other assets, active bribery, and passive bribery.

Among the legislators who had contact with Gustavo Alejos, and one of his key allies, was congressman Felipe Alejos Lorenzana, a powerful dealmaker who has served in the legislature since 2011 (from 2016 to 2020 he served as the vice president and is currently the first secretary of the Congress). The two are not related; however, their relationship dates back years. In 2012, he joined Gustavo Alejos’ brother in founding the Todos political party; Felipe Alejos would eventually snatch control of the party. 

Felipe Alejos helped lead Guatemala’s Congress during a time period rocked by several corruption scandals. Not only was he one of the most fierce opponents of the International Commission against Impunity in Guatemala (CICIG), a UN-backed independent body set up to help fight corruption, he helped support a regressive legislative agenda to favor those accused of graft. 

Felipe Alejos himself was implicated in a corruption scandal involving the payment of some Q19 million (US$2.6 million) in bribes to a criminal network, in exchange for speeding up the process of receiving tax refunds. The Public Prosecutor’s Office asked the Supreme Court to lift Felipe Alejos’ congressional immunity, but in a series of controversial rulings (most recently on June 29) the court repeatedly declined to do so. (In response to each of these rulings, the Constitutional Court has ordered the Supreme Court to reconsider the case).

The Constitutional Court’s ruling on the election of Guatemala’s High Courts 

In mid-February, as a result of the FECI’s investigation, the attorney general requested an amparo protection (a legal measure similar to an injunction in the United States) around the judicial election process. The Public Prosecutor’s Office argued that the rosters of candidates submitted by the postulation commissions had been manipulated and influenced by individuals facing criminal charges, who were seeking to exert influence over the process. In response, and amid concerns over influence peddling, the Constitutional Court suspended Guatemala’s  judicial election process for a third time since late 2019. 

On May 6, 2020, the Constitutional Court issued its final ruling on the election process, which included clear guidelines for Guatemala’s Congress to select capable, suitable, honest, and honorable people to make up the courts as required by the Constitution. In its resolution, the court ordered the Public Prosecutor’s Office to submit a report to Congress on the investigation, explaining the possible crimes committed and possible conflicts of interests of some candidates. The Constitutional Court also ordered Congress to take the report into account in order to exclude those who do not meet conditions of suitability and honorability. 

On May 28, 2020, the Public Prosecutor’s Office submitted its report to Congress. The report contains information on 22 candidates involved in the so-called “parallel commissions 2020” case—five candidates to the Supreme Court of Justice and 17 candidates to the Courts of Appeal. The report also described how another 109 candidates have been implicated in other investigations carried out by the Public Prosecutor’s Office.

Attacks against Constitutional Court magistrates

In mid-May 2020, a lawyer and candidate for a judgeship on the Courts of Appeal filed a legal motion asking the Supreme Court to lift the judicial immunity of four Constitutional Court magistrates: Boanerge Mejía, Gloria Porras, Neftaly Aldana, and José de Mata Vela. The motion alleged that the magistrates acted outside the limits of the Constitutional Court’s authority in their ruling on the judicial election process. He argued that the act of excluding judgeship nominees – due to alleged meetings with Gustavo Alejos or for being under investigation – violates the Constitution. This is at least the fourth time that efforts have been made to remove current magistrates of the Constitutional Courts, in what civil society groups view as retaliation for the court’s ruling in defense of the rule of law. 

On June 26, a special tribunal of the Supreme Court granted the request to lift the magistrates’ immunity and gave the green light for Congress to move forward with impeachment proceedings. Interestingly, five of the 13 judges who signed the judgement are candidates to occupy a judgeship and four were named in the February 2020 corruption probe carried out by FECI- indicating that they have a personal interest in the case before them.

Judges who approved impeachment proceedings and their conflicts of interest

Wilber Estuardo Castellanos Venegas Candidate to the Courts of Appeal. Castellanos was mentioned in the Public Prosecutor Office investigation for having held communications with Gustavo Alejos. He filed a complaint against judge Ericka Aifan and prosecutor Francisco Sandoval in relation to that investigation.
Edgar José López Espaillat Candidate to the Courts of Appeal. Recordings unearthed by the radio show ConCriterio reportedly show Espaillat negotiating with Gustavo Alejos about his release from prison. In the recording, Alejos is heard mentioning that he is coordinating Lopez’s transfer with Gustavo Herrera, a critical power broker in judicial selection processes. In addition to allegations of financial crimes, Herrera has been accused of involvement in drug trafficking. While serving in the Femicide Court, López Espaillat issued a ruling favorable to Gustavo Alejos.
Franc Armando Martínez Ruiz Candidate to the Courts of Appeal. Martinez was among the candidates who was in touch with Gustavo Alejos. When he served as judge in the First Instance Court of Appeals, he prepared a draft of an amnesty law that would have benefitted former dictator Efraín Ríos Montt.
Rosamaría de León Cano Candidate to the Courts of Appeal and implicated in the so-called “parallel commissions 2020” case. De Leon is the apprentice of former magistrate and Attorney General Hector Hugo Perez Aguilar, who was involved in the decision to overturn the conviction of genocide against Montt, reduce the mandate of Attorney General Claudia Paz y Paz by seven months, and approve the 2014 election of judges despite evidence of corruption.
Henry Alejandro Elías Wilson Accused of obstruction of justice. However, his judicial immunity was never lifted. The prosecutor in charge of his case has a child with Elíias Wilson. The most recent Public Prosecutor’s Office investigation revealed that his brother, Manuel José Elías Wilson, was among those who visited Gustavo Alejos at the private clinic.
Roaldo Isaías Chávez Pérez Brother of Luis Chávez, ex-member of the Renewed Democratic Freedom Party (LIDER), accused and convicted for influence peddling. Roaldo Chávez voted against removing the judicial immunity of Adrian Rodriguez, implicated in the so-called “influence traffickers” (traficantes de influencia) case, in which officials from the tax administration body (SAT, by its Spanish acronym) and others operated a network of corruption that involved the collection of illicit commissions of around Q19 million to expedite processing of tax credit refunds.
Leonnel Rodrigo Sáenz Bojórquez Accused in a case of irregular adoption that also implicated former Minister of Foreign Affairs Sandra Jovel.
Artemio Rodolfo Tánchez Mérida Accused by the Transparency International chapter in Guatemala of improperly issuing protections to candidates for public office so that they could obtain the required certificate of having no convictions or conflicts of interest from the Court of Accounts, a supervisory body.
Horacio Enríquez Sánchez Candidate to the Courts of Appeal. According to media reports, he participated in negotiations with corrupt power broker Roberto López Villatoro (the so-called “Tennis Shoe King”) regarding nominees for the 2014 court election process.
Alberto Mis Ávila Avila is said to be one of former Vice President’s Roxana Baldetti’s operators within the judiciary.
Karina Gonzalez Escobar Candidate to the Courts of Appeal
Nicolas Cuxil Guitz Member of a postulation commission and candidate to the Courts of Appeal

On June 26, the Human Rights Ombudsman and several private individuals filed an appeal before the Constitutional Court against the decision of the Supreme Court. According to the appeal, Article 167 of Guatemala’s Injunction Law establishes that Constitutional Court magistrates cannot be criminally charged or penalized for their rulings.

The Constitutional Court accepted the petition and granted provisional protection in favor of the judges. The court also suspended impeachment proceedings.

Congress defies the Constitutional Court  

Within hours of the Supreme Court’s decision and at an unprecedented speed, the leadership in Congress created a special legislative commission tasked with examining the case and issuing recommendations on whether or not to impeach the magistrates. The commission is composed of members who have a clear conflict of interest (see box).

Despite the provisional protection granted to the Constitutional Court magistrates, Congress defied the court’s ruling in a clear violation of the rule of law and has moved forward with the impeachment proceedings. The legislative commission has said that it expects to present its report to the Congress within weeks. According to local media outlets, the official bloc in Congress is trying to muster the 107 votes needed to remove the magistrates.

Who’s in the congressional commission leading the constitutional court impeachment inquiry? 

Allan Estuardo Rodríguez Reyes President of Congress. Allan Rodríguez hails from the Vamos Party, infamous for supporting initiatives with little benefit to the Guatemalan public. He has been informally accused of buying his election in January 2020 and was recently called out for spending Q14 million of public funds for remodeling projects, including a personal shower and garden upgrades, in the midst of the pandemic.
Sofía Jeaneth Hernández Herrera First vice president of Congress and a member of the National Change Union Party (Unidad del Cambio Nacional, UCN). The UCN party was founded by Mario Estrada who was arrested in Miami in 2019 and accused of seeking between $10 million to $12 million from the Sinaloa Cartel to fund his presidential campaign, attempting to arrange the assassination of two of his political rivals, and transporting cocaine into the United States. Hernández was one of the deputies who visited Gustavo Alejos at his private clinic. In 2016, she was accused of influence peddling, after being denounced by the governor of Huehuetenango for pressuring him to use resources for unfinished and nonexistent projects (involving some Q45 million or $5.8 million). Based on these accounts, a request to lift her legislative immunity was finally granted in March 2017.
Luis Alfonso Rosales Marroquín Member of the Valor party. Previous lawyer for Ríos Montt. Rosales heads the congressional commission leading the impeachment proceedings against the Constitutional Court magistrates. Rosales’ wife was a candidate to the Courts of Appeal. She currently serves as an alternate in the Court of Appeals in the Department of Jalapa, where another key player in the postulation commissions scandal, Romeo Monterrosa, serves as magistrate. Romeo Monterrosa is a member of the postulation committee charged with selecting candidates for the Supreme Court. Before taking office in the Court of Appeals, Monterrosa was a defense attorney for drug traffickers and in 2018 was denounced for having rejected a preliminary hearing against two people, one of whom was sentenced in the United States to 15 years in prison for drug trafficking in February of this year. The FECI found evidence of telephone conversations between Alejos and Romeo Monterrosa as part of its parallel commissions 2020 investigation.
Armando Damián Castillo Alvarado Third vice President of Congress and a member of the VIVA party. According to online outlet Nómada, while serving as director of the national roads maintenance agency (COVIAL by its Spanish acronym) in 2016, there were seven findings against him from the Comptroller’s Office and a complaint before the Public Prosecutor’s Office concerning a possible act of corruption. The Comptroller’s report demonstrated many instances in which Castillo Alvarado failed to provide necessary documentation for public spending, adhere to proper norms and procedures for contracts, and justify quotes on up to 10 public works projects, among other issues.
Carlos Santiago Nájera Sagastume Treasurer of Congress and a member of the UNE party. Nájera was accused of influence peddling in a massive corruption case involving the Health Ministry. The Public Prosecutor’s Office requested that his legislative immunity be lifted but the Supreme Court rejected the request in June 2020. He is currently in the process of being expelled from the party for having accepted money in exchange for supporting the election of the current congressional leadership.
Rudy Werner Pereira Delgado Second secretary and representative of the FCN-Nación party. Pereira is currently under investigation for a case of discrimination against the former governor of the department of Alta Verapaz.
Douglas Rivero Mérida Member of the Humanista Party, noted for its support of the controversial NGO law. Rivero is said to be linked to Rudio Lecsan Mérida, secretary general of the Humanista Party and the former head of the Guatemalan National Civil Police at a time when the Ministry of the Interior (which oversees the police) saw scandals involving forced disappearances and embezzlement

In response to the legislative commission’s actions, a group of 50 legislators from several political parties sent a letter to the Secretary General of the Organization of American States (OAS), requesting his support in helping to resolve the present constitutional crisis.

In the letter, the legislators describe how in an attempt to counteract efforts by corruption networks to co-opt Guatemala’s institutions, this has led to conflict between the branches of government that is now threatening judicial independence. The letter also underscores that the legislative commission is engaged in a political persecution of the Constitutional Court, which threatens the constitutional order, the rule of law, and the democratic governance of Guatemala’s institutions.

Weakening the anti-corruption movement 

Beyond the Constitutional Court justices, there have been increased attempts to discredit the head of FECI, Juan Francisco Sandoval. In addition to defamation campaigns on social media, more than 26 malicious lawsuits have been filed against him in an attempt to close down FECI-led investigations.

Independent judges have also been the target of attacks. On July 3, the Supreme Court announced that it had voted in favor of removing the judicial immunity of judge Erika Aifán. Aifán oversees multiple cases involving Gustavo Alejos and other high-profile politicians and businessmen.

Attempts to encroach on Human Rights Ombudsman Jordán Rodas Andrade and his influence in the country have surged as well. Most recently, the Congressional Commission on Human Rights approved the decision to subpoena Rodas Andrade in light of his solidarity with the LGBT+ movement. Various organizations have published a joint statement demonstrating their disapproval of attacks on the ombudsman for his public support of LGBT+ rights, particularly their attempt to draw attention to this issue and take eyes off of corruption in the courts.

What’s at stake? 

After a decade of historic progress in tackling high-level corruption, the risk of Guatemala’s justice system falling under the control of criminal groups is extremely high. Since the beginning of the process to elect the new Supreme Court and Courts of Appeal, corrupt and criminal groups have sought to rig the election. As major cases of corruption make their way through the system, these groups have an interest in ensuring the release of those implicated and a halt to any future probes. As part of their strategy, they have initiated malicious criminal proceedings against the Constitutional Court, independent judges, prosecutors, and activists in what appears to be retribution for their commitment to fighting corruption and impunity.  

Next in line is ensuring the outcome of the 2021 election of the Constitutional Court. Magistrates to the Constitutional Court are elected every five years. By law, Congress, the Supreme Court, the main public university, the bar association, and the president with his cabinet are each required to appoint a justice and a substitute. 

From their actions, it is clear that the aim of these corrupt networks is to impose and uphold a system that would benefit the illicit activities of corruption networks and organized crime in Guatemala. Such an outcome would have serious repercussions for the security and stability of Guatemala and the region.