After being rocked by allegations of influence peddling in past selections of Supreme Court judges, Guatemala is about to repeat the same mistakes. With a month remaining before the lists of candidates for both the Supreme Court of Justice and Courts of Appeal are presented to the Guatemalan Congress, the schedule proposed by the Nominating Commissions does not allow adequate time to fully investigate candidates, including their potential connections with criminal networks. Given that nearly 1,000 candidates are vying for hundreds of seats, it is not feasible for either the commissions or civil society to conduct meaningful vetting of the candidates.
No Time for Vetting
As outlined in a previous blog, influence peddling was rampant during the last round of judicial selections in 2014. This year, there are reasons to believe that Congress, which will appoint judges from a list of candidates put forth by the Nominating Commissions, has no interest in appointing independent judges who might authorize investigations into allegations of corruption by its members. Even absent this concern, recent developments underscore how the commissions are not undertaking the basic steps necessary to investigate the candidates for the high courts.
Aspiring judicial candidates in Guatemala began submitting their applications the week of August 26. The two commissions charged with nominating candidates – one for the Supreme Court and one for the Courts of Appeal – are supposed to evaluate whether the candidates have the ethical qualifications necessary [pdf]. However, the commissions gave the candidates only seven days [pdf] to submit their applications, including a list of documents certifying a clean criminal and civil record [pdf].
According to the schedule established by the commissions, after all applications were received, the Nominating Commission discharged candidates who did not meet the formal requirements. Two of the most renowned judges who handled high-risk cases involving corruption were dismissed from the selection process based on technicalities.
On September 11 and 12, the public will have the opportunity to submit any information about aspiring candidates challenging their qualifications. By the end of this week, the commissions will then have two weeks to review this information as well as candidates’ applications to determine their eligibility, after which candidates who have been rejected will have an opportunity to appeal.
Scores Not Linked to Quality of Work
The commissioners will review the resumes and background of the aspiring candidates between September 17 to 23; giving a rating based on a table de gradación (grading table) that assigns a numerical value to the candidates’ qualifications, including professional experience.
This year’s grading system divides qualifications into three categories [pdf]: professional; academic; and “human projection” (i.e. candidates work in the promotion and defense of human rights), and each qualification receives a different weight on a 100-point scale. Seventy points are assigned for professional background, of which candidates who served as magistrates, judges, or law practitioners for more than 15 years receive an automatic 60 points and those who apply to the Supreme Court with more than 15 years as an appeals magistrate or lawyer [pdf] receive an automatic 50 points. Academic degrees and accomplishments, including faculty positions and publishing of legal articles, will secure a total of 25 points. A final five points will be assigned to those candidates that can demonstrate work in the non-profit field or in the advancement of human rights.
While professional and academic accolades are important, the Nominating Commissions should also consider the quality of the work as well as the character of the candidates. For example, the American Bar Association’s Standing Committee on the Federal Judiciary – the body charged with reviewing applications for federal judicial positions in the United States – evaluates candidates [pdf] based on “the quality of a candidate’s work, not just strictly on professional status and longevity. In evaluating a candidate’s integrity, the standing committee considers the nominee’s character and general reputation in the legal community, as well as, the nominee’s industry and diligence.”
The standing committee also assesses professional competence, including qualities such as intellectual capacity, judgment, analytical abilities, knowledge of the law, and breadth of professional experience. Finally, the standing committee considers judicial temperament, which includes a commitment to compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law. The standing committee assigns an evaluator who examines the nominee’s legal writings, conducts research about the nominee, and identifies and reviews reported and unreported court decisions, briefs, legal memoranda, publications, speeches for quality, clarity, knowledge of the law, and analytical ability.
In contrast, the Nominating Commissions in Guatemala automatically give a substantial number of points based on whether a judge served on the bench for a certain number of years. There is no requirement that the commissions take into consideration the quality of the legal reasoning in decisions or potential conflicts of interests.
The lack of investigation of the candidates’ backgrounds and the limited time to evaluate the submission of more than 1,000 applications is a grave flaw in the process. It may allow criminal networks to secure influence in the highest courts of the country.
It is also important to highlight that the Nominating Commissions voted not to conduct any interviews or administer psychometric tests, which was a common practice in previous processes. Furthermore, there are no plans to review the personal financial records of the candidates. If done properly, these practices could help ascertain whether candidates have been involved in corrupt activities.
Irregularities in the Election of Commissioners
Even if the Nominating Commissions had sufficient time to conduct meaningful vetting, the process would still be marred by serious concerns about the impartiality of the commission members. Twelve of the 36 members of the commission charged with selecting candidates for the Supreme Court are the subject of two legal challenges by the Asociación Familiares y Amigos contra la Delincuencia y el Secuestro and an appeals court judge, alleging that the call for the election was not public and was only distributed by WhatsApp messages. All 12 commissioners were included on a single list, which was later adopted by the association of appellate court judges, with 117 out of 123 members of the association supporting their election.
Individuals linked with Mario Amilcar Estrada Orellana, a politician currently detained in the United States on allegations of drug trafficking, put forward the list of the 12 commissioners. The judge who proposed the list, Gilma Valladares Orellana, has two siblings who ran for office in local legislatures representing the Nationalist Change Union (Unión del Cambio Nacionalista) party, the same party whose executive director was Mario Estrada. Two of the new commissioners have ties with Estrada. Judge Edwin Ruano, for example, worked in 2017 as legal counsel for the city of Jalapa while Mario Alejandro Estrada Ruano, Estrada Orellana’s son, was the mayor of the city. Judge Romeo Monterrosa’s election as commissioner was also challenged [pdf] because he reportedly rejected a request to lift the immunity of Estrada Ruano for alleged corrupt activities while he served as mayor of Jalapa.
Four of the five judges who allegedly proposed the list of 12 commissioners, have also applied to become members of the Supreme Court. This may represent a conflict of interest given that the Nominating Commission for the Supreme Court is composed of 12 appellate court judges selected by their peers, selection over which they had an alleged direct influence.
New Information on Corrupt Influence in the Judicial Selection Process
Last week, the Office of the Prosecutor Against Impunity in Guatemala (FECI) and the International Commission Against Impunity in Guatemala (CICIG) made public an investigation describing alleged negotiations to vote for lists of preselected candidates in the 2014 judicial selection process.
The investigation revealed [pdf] that on the same day Congress voted to confirm the Supreme Court judges – September 25, 2014 – a breakfast meeting took place at a Guatemala City hotel. Former presidential candidates Manuel Baldizón and Alejandro Sinibaldi hosted the breakfast, and in attendance were most of the 13 Supreme Court candidates who Congress elected later that day. A company linked to Gustavo Adolfo Herrera Castillo, who was also present during the meeting, booked the hotel room. It was reported that the judicial candidates were asked to swear allegiance to Baldizón and Sinibaldi as well as to their respective political parties.
Herrera Castillo has since fled to Nicaragua and was granted asylum there in 2018 after being investigated for alleged acts of corruption in Guatemala. It has been reported that a group of 33 judges, including Supreme Court judges, visited Nicaragua between June 22 and 26 of this year. The day after returning to Guatemala, the association of judges voted for 12 representatives who are current members of the Nominating Commission for the Supreme Court. However, Judge Valladares Orellana, who participated in the trip, denied any wrongdoing and said that the purpose of the trip was to visit the Central American Court of Justice.
With a month remaining before the Nominating Commissions must submit judicial candidates to Congress, the prospects for credible and merit-based selection proceedings appear limited. Absent a decision by the Constitutional Court to stay the proceedings of the commissions pending a credible investigation by the Attorney General into the irregularities in the election of the commissioners, the international community will have little reason to trust that the Guatemalan judiciary is independent enough to adjudicate cases of grand corruption, narcotics trafficking, or grave human rights abuses.
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.