On February 11, the Guatemalan Congress, with the support of the governing party and conservative lawmakers, passed a controversial bill that increases government control over non-government organizations (NGOs) operating in the country. In general terms, the law gives the government the ability to unregister an NGO without having to go through a legal procedure or provide a mechanism for defense, and allows for more control over internationally provided funds. Despite calls from civil society and international organizations to veto the bill, President Giammattei signed it into law on February 27.
On March 2, Guatemala’s highest court provisionally suspended enactment of the law; after some conflicting statements, the executive branch agreed that it would respect the court’s decision. President Giammattei has since told the press that his administration will present reforms to the law, pending a final ruling by the Constitutional Court on whether or not the law is constitutional.
Given the contents of the law and the widespread criticism that it attracted, it’s significant that Giammattei ignored these many valid concerns and instead approved restrictions that would have gravely impacted the ability of civil society groups to advance human rights, support anti-corruption efforts, and advocate for stronger rule of law. Past experiences suggest that legislators and Giammattei may work together to get a similar version of the law on the president’s desk again in the near future.
The government’s insistence on approving this law, despite criticism, shows a serious attempt to attack and undermine civil society. This makes it critical to understand what the NGO law purports to do, who it would affect, and the urgent need for Guatemalan civil society and international partners to remain vigilant of, and to push back against, efforts to restrict civil society.
Decree 4-2020 amends legislation commonly referred to as Guatemala’s “NGO Law,” by imposing new executive controls on the day-to-day financial and administrative activities of non-governmental organizations operating in the country. The previous Guatemalan Congress attempted to pass similar legislation on many occasions, but civil society and the international community strongly objected each time, citing concerns that the legislation violates freedoms of expression and association outlined in the Guatemalan Constitution and upheld in international standards.
The law seeks to:
1) Give the Interior Ministry the ability to unregister an NGO if it considers this organization to have violated the public order. The NGO in question is not subject to a trial and there is no mechanism to defend itself in light of the government’s accusations and actions.
2) Increase financial control of NGOs. Guatemala has various norms that ensure NGO accountability. All must register before the official tax administration and report to this institution. Non-profit organizations submit annual reports to this same tax entity. The State already has the mechanisms in place for sufficient oversight. With this law the government would have control over funds provided by international donors to support NGO efforts.
Other worrisome elements of the law give the government the authority to :
By these measures, the law opens the possibility that civil society organizations could be subjected to the government’s arbitrary interpretations of “public order.” The potential repercussions outlined in the law could have a chilling effect on citizen participation. By narrowing the space for criticism, the law could gravely impact citizen participation in Guatemala’s democratic institutions over the long term.
Another concern is that the law could be used as a tool for targeting and criminalizing specific civil society groups and leaders who do not align with the goals and priorities of the Giammattei administration and future presidencies.
Supporters of the law argue that one of the objectives is to increase supervision of NGOs, arguing that there have been irregularities in the management of public and international funds, and that in some cases these groups work to destabilize governments, obeying an international agenda.(This discourse was the same one used to remove CICIG).
However, Guatemala already has multiple legal mechanisms in place to ensure that entities receiving public funds use them accordingly. Moreover, non-governmental organizations, religious entities, unions, and other associations must complete a multi-step process to register with the country’s tax authorities. Other legal mechanisms include sophisticated criminal legislation aimed at preventing activities like money laundering to common finance laws on the books. Because the NGO law requires organizations to undergo an additional, onerous registration process, this could dissuade associations from forming in the first place. The more exacting registration process could also create situations in which powerful special interest groups could discredit or even move to abolish civil society groups for having failed to fully comply with the regulations.
Corruption is a deep-rooted problem in Guatemala. Various investigations have exposed widespread bribery networks, made up of public officials who trade in embezzled funds, public contracts, and key positions in government institutions. Over the last decade, the Guatemalan justice system, with the help of the UN-backed anti-corruption mission the International Commission Against Impunity in Guatemala (CICIG by its Spanish acronym) opened multiple investigations that helped reveal much of this endemic corruption to the general public.
The NGO law is a major threat to civil society organizations working to promote greater government accountability and defend citizens’ rights, from the right to live free from violence, the right to an accountable police force, or the right to access to basic medical and educational services. More specifically, civil society groups that were strong critics of the previous administration’s efforts to curb anti-corruption initiatives—including organizations that have filed legal complaints against official policies— would be particularly vulnerable should the law enter into force.
The NGO law also represented a threat to associations working in defense of indigenous land rights and other social and/or ethnic groups, given that these organizations are already operating in particularly challenging environments, at risk for criminalization of their work and acts of violence.
Legislation that restrict civil society’s ability to organize and find support for their work is increasingly common around the globe.
Egypt passed a law in 2017 that allows the government to dissolve NGOs on vague terms such as “harming national unity and disturbing public order,” language that is echoed in the Guatemalan NGO law. According to an NGO representing victims of torture interviewed by Amnesty International, hundreds of Egyptian associations have been shut down without evidence and are facing criminal charges. While the law was reformed last year due to international pressure, it still asserts many of the same controls.
An organization was shut down in Pakistan for providing information to the United Nations Human Rights Council, thanks to a new law that empowered the government to disband organizations on the grounds of “involvement in any activity inconsistent with Pakistan’s national interests, or contrary to government policy.” Similarly to the Guatemalan NGO law, the legislation in Pakistan also placed stricter administrative and financial monitoring.
Russia has been successful in severely limiting the work of civil society through restrictive legislation. A 2012 law requires organizations involved in vaguely defined “political activities” who receive international funding to register as foreign agents. On the basis of this law, the country raided and investigated hundreds of organizations that were then placed on a “foreign agent” list. The Russian government has also passed an “undesirable organizations” law, banning international organizations’ support for local NGOs if engaged in activity that threatens Russia’s “security or constitutional order.”
In response to constitutional complaints filed by several associations, individuals, and political parties, the Constitutional Court provisionally suspended the enactment of the NGO law, supporting the parties’ claims of unconstitutional restrictions to freedoms of associations, expression, and protest. In its decision, the court stated that the legislation poses possible human rights violations and could lead to disregard for international standards.
President Giammattei responded that because he had already signed the bill into law, and because it was officially published prior to the court’s decision, the law must go into effect. On March 5, and in response to a request for clarification presented by Congress, the Court clarified that the suspension of the approval of the bill also suspends the sanction, enactment, publication and entry into force of said law. In later remarks from the executive, the president rolled back his statement and agreed to respect the court’s decision. He later announced the president’s office would present a new law to Congress with reforms to certain articles. The question of what reforms will end up being presented is an essential one—Congress should not consider a law that imposes any of the arduous and unnecessary controls included in Decree 4-2020.
The Constitutional Court’s final ruling on the law is pending.
The NGO law drew strong criticism from both Guatemalan and international organizations. In a statement by the UN High Commissioner’s Office for Human Rights, a group of experts stated that the law opens the door to discretional limitation of the right to assemble, the right to peaceful process, and the right to free expression; it also could lead to the criminalization of other human rights, the group of experts said. The Inter-American Human Rights Commission also denounced the law, as did the U.S. State Department and U.S. Members of Congress.
This criticism was based on the recognition of the invaluable role played by civil society organizations in a democratic society. An active civil society allows for more transparent decision-making processes, more accountable institutions, and narrows the gap between the electorate and those in positions of power. All this helps fend off autocratic trends towards overly concentrated networks of power.
Given how Guatemala’s NGO law attempts to restrict important freedoms enshrined in many international human rights instruments, the international community should continue to monitor and condemn efforts to restrict civil society and limit anti-corruption efforts in Guatemala. Moving forward, international partners must be on high alert for any actions taken by the Guatemalan government to further penalize civil society organizations that engage in peaceful civic participation.