High Stakes in Guatemala’s Judicial Elections

On October 12, 2019, elections will be held for judges on the Supreme Court of Justice and all appeals courts in Guatemala. In the past, the elections have been plagued by corruption by those seeking to influence the decision-making process. This year, the results could be dire for the rule of law in Guatemala because of the absence of the International Commission Against Impunity in Guatemala (CICIG), whose mandate ends on September 3.

Special interests have challenged the fight for stable, democratic institutions and long-lasting peace since the end of Guatemala’s 36-year armed conflict in 1996. The creation of CICIG in 2009 and ongoing work by civil society served as a counterbalance against criminal structures that want to gain control over Guatemala’s fragile institutions.

It was only four years ago when Guatemalans took to the streets calling for the resignation of then-president Otto Perez Molina for an alleged kickback scheme uncovered by CICIG and the Attorney General of Guatemala, in which he offered high level government positions in exchange for expensive gifts such as helicopters and beach houses. As a result of the protests, Perez Molina resigned and has been held in pretrial detention since 2015. Meanwhile, criminal structures continued efforts to control the judiciary and thereby the ability to block prosecutions against those involved in corruption. 

A Legal Framework that Can be Manipulated

Guatemala’s constitution established Nominating Commissions (Comisiónes de Postulación) in order to guard against the politicization of judicial appointments to the Supreme Court of Justice, Courts of Appeal, and other collegiate tribunals. The constitution mandated that the Nominating Commissions include academics and the national bar association in order to promote a merit-based and transparent process. This initially appeared to be a promising approach to encouraging a strong and independent appointment process. Guatemala’s Congress passed a law in 1999 to define the Nominating Commissions’ responsibilities in detail.

There is one nominating commission for the Supreme Court and another for the appellate courts.  Both have 37 members.  Each Nominating Commission includes 12 representatives of the bar association and 12 law school deans.  The Nominating Commission for the Supreme Court is composed of 12 appellate court judges selected by their peers. Both commissions are chaired by the chancellor of a university selected by the vote of the chancellors of the country, this year both commission chairs were elected by unanimity of vote.

With its heavy reliance on academic institutions in the process, however, this system has incentivized the creation of fake law schools with the sole objective of obtaining the right to vote in the selection of judges.

Collectively, the commissioners will have to review the files of more than 1,000 candidates who are expected to submit their applications before the October 12 elections. This task is monumental given the volume of files and the limited amount of time the commissioners will have to vet each candidate. This is insufficient to conduct a proper analysis of the candidates’ background, legal work, and potential conflicts of interests.

International standards recommend that an independent group of experts be part of the election process for judges and other high-level public officials. The nominating commissions fulfill this role by vetting the candidates during the pre–appointment review stage; however, as investigations of past proceedings have shown, the nominating commissions have been characterized by procedural irregularities and compromised by criminal activity. There is no reason to believe that 2019 will be an exception.

In 2018, an investigation led by the office of the Attorney General and CICIG ended with the arrest of a lawyer, Roberto López Villatoro, a.k.a. the “Tennis Shoe King,” who made his name by allegedly selling knock-off tennis shoes. López Villatoro created his own law firm, financed courses in Spain for lawyers aspiring to be judges, paid for the studies of young lawyers, and then placed them in positions in the judiciary. At the same time, he was attempting to gain control over the Guatemalan bar association, whose members are elected by popular vote from licensed Guatemalan attorneys and have direct influence in the election of judges and magistrates. He invested more than $130,000 in campaign events to ensure the election of his loyalists because the bar association has 12 votes in the selection of judges to both the Supreme Court of Justice and appeals court, as well as other institutions, including the Attorney General of Guatemala.

Investigators found that López Villatoro bought a luxury apartment for an appeals court judge who served as a member of the 2014 nominating commission for the Supreme Court in an apparent attempt to guarantee support for López Villatoro’s protégés in the Supreme Court. In raids conducted by prosecutors, a list was found with names of judges and meetings he had in 2014 looking to secure spots for his own candidates on the appeals and Supreme Court. This was known as the “parallel commissions” case. Three of the 13 sitting judges in the Supreme Court were on Lopez Villatoro’s list, and those same judges will be part of this year’s nominating commission.

In 2019, the selection of judges represents an opportunity for politicians, public officials, and businessmen, who are being investigated and prosecuted by the Attorney General’s Office, and their family members, to influence the election of the members of the courts. This year, the corrupt scheme led by López Villatoro seems to have strengthened even though he is currently in pretrial detention. Political changes and an increase in illegal activities by drug cartels in Guatemala have made the judiciary a ripe target for co-optation.

Another operator linked to López Villatoro is Gustavo Alejos, a businessman who made his fortune selling overpriced medications to the Guatemalan government. Alejos was recorded in audio, later leaked to the public, having a conversation from jail with the Edgar Jose Lopez Espaillat – a former lawyer at López Villatoro’s law firm. The audio recording revealed Alejos’s intentions to influence the election of judges and to pay bribes to delay criminal investigations.

Monitoring the Process

The Center for Human Rights of the American Bar Association will be monitoring the election process as it has done in the past. Without the presence of CICIG investigators to deter further meddling in the process, there are grounds for concern that attempts to co-opt the proceedings will intensify.  Given that there are currently 117 alleged criminals at-large in cases targeting powerful elites and corrupt networks, long term efforts to curtail rampant impunity may well turn on this round of selection proceedings.

Historically, the Constitutional Court has also played a role in overseeing the integrity of the proceedings. However, due to the current constitutional crisis driven by the intentional disregard of Constitutional Court decisions by President Jimmy Morales, it remains unclear whether the Constitutional Court will be able to play a moderating role this time around.

In addition to criminal networks trying to influence the elections, there are also likely to be attempts by those charged with grave human rights abuses to influence the proceedings as many of these abuses are the subject of pending litigation. Independent judges are therefore important to ensure that these cases are not unduly dismissed.

Last week, Guatemala’s Congress swore in the 74 commissioners for both nominating commissions. International organizations, governments, and civil society must be vigilant and stand prepared to call out corruption and defend the rule of law in Guatemala.

Juan Ramirez-Franco is a staff attorney with the Center for Human Rights of the ABA. The views and opinions expressed here do not necessarily reflect the views and opinions of the Center for Human Rights of the ABA or of the Open Society Justice Initiative.

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