WOLA: Advocacy for Human Rights in the Americas

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12 Dec 2016 | Commentary

Guatemala at a Crossroads: Reinforce the Fight Against Corruption or Reinstate the Hidden Powers?

One year after Guatemala was shaken by massive public protests demanding an end to widespread impunity and corruption, the country embarked on an unprecedented process to carry out fundamental justice reforms. In October 2016, after months of regional discussions among a wide range of sectors, a draft constitutional reform bill was presented to the Guatemalan Congress for consideration. The amendments aim to solidify the progress achieved thus far in the fight against impunity and create the conditions for the consolidation of the rule of law. Regrettably, securing passage of these necessary reforms has proven problematic. Despite the support of many within Guatemalan civil society, the Congress failed to gather the votes necessary to pass the reforms before the end of the regular session. To move forward, the bill would have to be taken-up when the Congress reconvenes next year—under new leadership viewed by many as antagonistic to a reform agenda. Guatemala must now decide between deepening its efforts against impunity and corruption, or the reinstatement of control by the “Hidden Powers,” profit-orientated criminal groups with influence or entrenched in the country’s institutions.

Combating Impunity Requires Independent Judges and Prosecutors

2015 opened up an enormous opportunity for a profound political transformation of the machinery that has allowed corrupt and criminal structures to operate unimpeded in Guatemala for decades. The string of investigations carried out by the International Commission against Impunity in Guatemala (Comisión Internacional contra la Impunidad en Guatemala, CICIG) and the Guatemalan Attorney General’s Office laid bare the deep-rooted, structural corruption and impunity at the root of the continued fragility of Guatemala’s institutions.

Yet, as impressive as these victories have been, the investigations alone cannot ensure the demise of the criminal structures deeply embedded in the state. As CICIG Commissioner Iván Velásquez has repeatedly warned, without deep political reforms, criminal structures and their allies will regroup and seek to undermine the progress achieved thus far.

These reforms must include measures to ensure the independence of judges and prosecutors and to safeguard the judiciary from political and inappropriate interference, essential for the respect for the rule of law. Only an impartial, independent judiciary is able to guarantee that justice will not be tilted by special or powerful interests, but rather based on the evidence presented and in accordance with the law. Respect for the rule of law also requires strong and independent prosecutors willing and able to investigate and prosecute cases, regardless of who committed the crime.

The Path toward Reform

On April 25, 2016, the heads of the three branches of government launched the “National Dialogue toward Justice Reform in Guatemala” (Diálogo Nacional: Hacia la reforma de la Justicia en Guatemala) to strengthen the country’s justice system by carrying out a series of reforms of the Constitution and ordinary laws. Under the guidance of a technical secretariat comprised of the CICIG, the Attorney General, and the Human Rights Ombudsman, and with the support of the Office of the United Nations High Commissioner for Human Rights, an unprecedented series of regional dialogues and working groups were held over the course of several months to gather input and debate the proposed reforms with a wide range of sectors.

At the national level, more than 1,500 people, including civil society representatives, experts, and members of the private sector, participated in the dialogues, and nearly 250 concrete reform proposals were submitted. From June to August 2016, nearly 80 participants held weekly working group meetings to discuss the proposed reforms in an effort to reach consensus.

On October 5, the final proposed reform package, comprised of 25 amendments to the Constitution, was presented to the Guatemalan Congress for consideration. Passage of the proposed constitutional reforms would first require the support of two-thirds of the 158 members of Congress, and subsequently the ratification by the Guatemalan citizenry via a referendum.

Key Areas of Reform

Among the reforms being contemplated is the strengthening of the judicial career system and creation of a National Council of Justice (Consejo Nacional de Justicia) to oversee judicial careers, promotions, disciplinary matters, and the administration of the court system. The amendment would separate the administrative and jurisdictional functions of the Guatemalan Supreme Court, thereby limiting the risk of corruption and improper influence of judges. The separation would help guarantee the internal independence of the judiciary by disallowing Supreme Court magistrates from exerting control over the selection, appointment, or promotion of lower-level judges or judicial support staff, and in so doing seeking to influence a legal decision.

The Council would also replace the questionable selection commissions (comisiones de postulación) and assume responsibility for appointing magistrates to the appellate courts and compiling the list of candidates for election to the Supreme Court. Currently, Supreme Court and appellate court magistrates are elected by Congress every five years from a list of candidates selected by the Guatemalan Bar Association, deans of law schools, a university rector, and appellate judges. The current process was adopted by law in 2009 in an effort to make selections more transparent and regulated. In practice, however, the process has been fraught by conflicts of interest and the influence of external actors seeking control of the commissions, and ultimately the make-up of the courts.

Reforms to the laws on political immunity (derecho de antejuicio) were also included in the bill. The application or interpretation of the existing law on political immunity has granted government officials protection from being detained or investigated unless the Supreme Court first approves a preliminary hearing to determine whether an official’s immunity from prosecution should be lifted. In the case of Guatemala, the benefit is given to a wide range public officials, including the president, vice president, ministers, members of Congress, judges, magistrates, mayors, and even candidates for elected office, among others. The law was meant to protect government officials from politically-motivated attacks or external pressures that could interfere with their work. However, due to the lack of clear regulations and the broad gamut of beneficiaries, it has more commonly been utilized to shield corrupt officials from justice. Often, the process to lift official immunity can take an average of 18 months and in many instances cases are closed or never resolved.

The proposed reforms would not end the right to political immunity, but would rather enable the Public Prosecutor’s Office to initiate an investigation of a public official who committed a crime. If sufficient evidence is found, a judge could then revoke official immunity, and if indicted, the public official would be suspended from office.

Another key and controversial component of the bill is the recognition of indigenous jurisdiction in the national legal system. The reform would allow indigenous communities to exercise judicial functions in accordance with their own rules, procedures, uses, and customs provided that they are not contrary to rights protected by the Constitution and international human rights law. If approved, the reform would remedy a historical debt, particularly given that indigenous peoples constitute a majority of the population, and continue to be victims of discrimination and a lack of access to the justice system.

A Vote in Favor of Impunity

Congressional approval of draft legislation is carried out in three debates. In the first and second debates, the importance and constitutionality of the draft bill is discussed in general terms. In the third debate, members vote on whether to consider and vote on each proposed amendment separately.

In late November, the justice reform bill was dealt a serious blow. After having obtained a favorable vote in the first and second debates, albeit not without delays, the session was suspended due to a lack of consensus during the debate of the first three of the twenty-five proposed amendments.

Less than half of the Legislature voted in favor of the first two reforms restricting official immunity, a move that was viewed by many analysts as an obstruction to the anti-corruption efforts of the Attorney General’s Office and CICIG and an attempt to protect the privileges of the political class. It is worth noting that there are currently around 12 cases regarding the official immunity of legislators pending before the court.

The reform bill’s approval was then brought to a halt following a lack of agreement on the third amendment, which would recognize the indigenous justice system, and deferred until Congress reconvenes next year. The future of the remaining reforms is now in the hands of new Congressional leadership whose commitment to advancing these much needed reforms is highly questioned, as are their relationships to officials and individuals currently under investigation on corruption charges. In the end, the interests of a powerful few prevailed over the Congress’ responsibility to legislate in favor of the needs of the citizenry.

Support for Anti-Corruption Reforms is Crucial

Guatemala has made remarkable strides in the fight against impunity, and has shown Guatemalans as well as others across the region that the justice system can function, even when confronting corruption at the highest levels of government. Still, the country has yet to cross the point of no return. As CICIG Commissioner Velásquez has cautioned, though the investigations have shaken the country’s mafias, old behaviors have been able to continue due to the inability of the state to institutionally occupy the spaces temporarily cleared by the investigations carried out by the Attorney General and the Commission. Reforms to guarantee the independence and impartiality of the justice system are crucial to the sustainability of the successes achieved thus far.

Fighting against corruption and strengthening justice systems in Central America remain high on the agenda of many U.S. lawmakers. Continued U.S. support is contingent, among several measures, on addressing the endemic levels of corruption, improving transparency, and strengthening public institutions, including the courts and Offices of the Public Prosecutor. In Guatemala, the future of these constitutional justice reforms should serve as an indicator of the country’s commitment to strengthening the rule of law.