International Justice Monitor

A project of the Open Society Justice Initiative

Guatemala’s Constitutional Court Calls for Pioneering Attorney General to Step Down Early

In Guatemala yesterday, the Constitutional Court ruled that the country’s top lawyer must step down earlier than planned. Attorney General Claudia Paz y Paz is a champion reformer, and has been a bright light in the violence-plagued country notorious for impunity.

The question about the date at which Paz y Paz’ term appropriately ends has been contentious in Guatemala. She has made notable reforms, strengthening the Public Ministry to enhance successful prosecutions, including for violent crime, narco-trafficking, corruption and human rights violations. In doing so, she has also created enemies, even more so after the prosecutor’s short-lived success in convicting former military head of state José Efraín Ríos Montt for genocide and crimes against humanity last year.

The Constitutional Court’s decision shifts the landscape markedly. It was unanimous, and is apparently not subject to appeal, but only “clarification” or “amplification.” Nonetheless, in a statement to EFE, Paz y Paz has announced her intention to file a legal challenge. In doing so, she asserted: “Altering the constitutional terms of officials who must be autonomous in the exercise of their office weakens the rule of law.”

The court’s decision yesterday provisionally endorsed a constitutional challenge earlier filed by Ricardo Sagastume, a prominent Guatemalan businessman seeking to bring the current attorney general’s term to an end in May, seven months before the completion of what is constitutionally obliged to be a four-year term. (An initial challenge filed by Sagustame was rejected, but he filed a separate challenge which resulted in yesterday’s decision.)

Guatemala’s Constitution (Article 251) states that the attorney general’s term will last for four years and that she can only be removed from office by the president for “duly established cause.” However, the constitutional court relied partly on “transitional” provisions of the constitution (conditional articles 24 and 25) which identified as May the date at which the attorney general would assume his position following 1993 constitutional reforms. The constitutional court decision does not elaborate why these provisions are relevant here, beyond that initial transition period.

The term issue has arisen because Paz y Paz was appointed to head the Public Ministry in December 2010, after the constitutional court disqualified the lawyer previously appointed to the position in May of that year. Paz y Paz has argued that she was appointed in December 2010 for a full period of four years, and her term should thus appropriately end in December 2014.

In its three-page decision, the court “determine[d] that the process for selecting and designating the Attorney General of the Republic and head of the Public Ministry should begin immediately, with the aim that the naming [of the next Attorney General] by the President be done … in May.” It called on Congress to act to initiate the process to establish a nominating commission without delay.

In Guatemala, the attorney general is appointed through a nominating commission which shortlists six potential candidates to pass on to the president for an eventual final decision which must then be endorsed by the legislature. If her term concludes in December, a nominating commission would convene only in August.

The end date of Paz y Paz’s term has been contentious since last year. Immediately following the Ríos Montt verdict, prominent representatives of the business community highlighted the importance of galvanizing around the election of the next attorney general. Late last year, two legal analysts for the country’s Supreme Court were fired after they issued an internal opinion confirming that the attorney general’s term should through the year.

Guatemala’s Bar Association, which plays a prominent role in the process of nominating judicial actors, also last year asked the legislature to seek a constitutional ruling on the length of the Attorney General’s term. The country’s congress did not do so, but in statements as recent as this week, congressional leaders did not rule out the option.

In Paz y Paz’ first three years in office, the number of reported crimes that went unprosecuted dropped from 95% to 70% in one of the deadliest countries in the world, with an increase in the number of prosecutions for homicide and organized crime, and a higher conviction rate.

Under her watch, the Public Ministry worked with the UN supported International Commission against Impunity in Guatemala (CICIG) to create “high risk courts” composed of vetted judges who have some protections and specialized resources; specialized units of prosecutors to handle complex or politically challenging cases; and streamlined management and oversight of prosecutions. These reforms ultimately allowed the groundbreaking Ríos Montt genocide conviction, a conviction that the Constitutional Court subsequently annulled in a divisive, and divided, decision.

The shortening of Paz y Paz’ term would limit the ability of the Public Ministry to institutionalize important reforms. Further, it would raise questions about the independence of the nominating process for both Paz y Paz as well as for other key judicial actors in a year in which Guatemala is also slated to select new judges for the country’s highest courts.

Jose Miguel Vivanco, Americas Director for Human Rights Watch, said yesterday from Guatemala that the court’s decision “creates the perception of undermining the independence and credibility” of the Public Ministry.

In an interview with El Periodico today, Claudia Paz y Paz said: “Those who have been affected by the advancement of justice [in Guatemala] are in a hurry for me to leave office.”