Guatemala’s procedures to select new Supreme Court and appellate court judges are in turmoil. How the situation is resolved is likely to have profound implications for the judiciary’s ability to handle cases involving historic grave crimes, grand corruption, and organized crime.
The Constitutional Court of Guatemala suspended the work of the Nominating Commissions to select the next judges of the country’s Supreme Court and appellate courts. This decision of September 16 followed two legal challenges to the procedure used to elect the members of one of the Nominating Commissions. A first lawsuit, filed by the Asociación Familiares y Amigos contra la Delincuencia y el Secuestro, alleged that the process for selecting members of one of the Nominating Commissions was not transparent. The second, filed by an appellate court judge with a record of independence, raised concerns that Commissions had used spurious arguments to block some appellate court judges from submitting applications for nomination to the Supreme Court.
As a remedy to concerns about the transparency of the process to select the members of the Supreme Court Nominating Commission, the Constitutional Court ordered the appeals court judges to elect their representatives to the corresponding Nominating Commission again. This reversed a June 27 election of representatives of the appeals courts judges to the Nominating Commission. Individuals linked to alleged criminal activity dominated the initial round of selections, so a more transparent process could help reduce influence peddling.
Regarding the concerns related to the application process, the court ordered the Judicial Career Council to comply with the Judicial Career Law and submit lists of sitting judges who received an outstanding grade in their performance review to the Nominating Commission.
While the Constitutional Court ruling did not cure the fundamental defects of the nomination process, such as the lack of investigation into candidates’ backgrounds and the limited time to evaluate the submission of more than 1,000 applications, it nonetheless presents an opportunity to ensure a more transparent and merit-based process.
In response to the court ruling, the appellate court judges amended the election procedure in October and proposed three rosters of applicants, the new vote reelected eight of the 12 initial judges that were target of the Constitutional Court ruling. The total 12 will be integrated into the Nominating Commission of the Supreme Court of Justice. However, the Nominating Commissions agreed to further suspension of their work in early November, and the timeframe for the selection of new judges remains unknown.
After the Nominating Commissions suspended their work on vetting candidates, the Myrna Mack Foundation (FMM) filed a constitutional action to urge the Judicial Career Council to comply with the Constitutional Court ruling by issuing a temporary regulation to assess the performance of sitting judges. The action is currently pending before the Constitutional Court, which now will have the last word on the vetting process of sitting judges aspiring to serve on the Supreme Court or appellate courts.
Congress Debating Suspension of Legal Norms Governing the Selection Procedure
The Constitutional Court order requires the Judicial Career Council to send a list of judges with a record of outstanding performance to the Nominating Commission. However, a week after the ruling, the Guatemalan Congress convened an extraordinary session to hold the first of three debates to approve legislative bill 5577. This bill seeks to amend the Judicial Career Law to alter the authority of Judicial Career Council, the body responsible for the management of the judiciary’s human resources. If enacted, the Judicial Career Council would be placed under the control of the Supreme Court of Justice, which could curb the Judicial Career Council’s ability to comply with the court order.
The Congress must hold two more public debates on the matter before it goes to a vote. However, with the Congress about to go on recess and the Nominating Commission suspending their hearings until further notice, the timeframe for a new law and the election of judges is uncertain.
Appeals Courts Judges Vote for Their Representatives Again
As ordered by the Constitutional Court, the appeals courts judges voted a second time on October 7 for their 12 representatives on the Nominating Commission for the Supreme Court of Justice. While the new selection process for members of the Supreme Court nominating body technically complied with the requirements of the court order, it did not resolve underlying concerns about influence peddling, as the majority of the members remain the same and have links with individuals accused of crimes.
The judges elected eight of the 12 judges previously elected as commissioners to be members of the Nominating Commission again. Appeals courts judges submitted three lists of applicants seeking to be commissioners of the Nominating Commission, with the same 12 previously elected commissioners distributed randomly among the three lists. During the previous process, only one list was submitted, and all of the members were selected, raising concerns about the process.
The eight individuals elected again as commissioners in the October 7 re-vote are the same members of the single list that was proposed by a group of five judges that traveled to Managua, Nicaragua, to participate in a meeting at the Central American Court of Justice. Media reported that at least 20 of the 32 judges who traveled to Nicaragua met with a Guatemalan fugitive, Gustavo Herrera, who allegedly dictated guidelines on how they should choose the judges this year.
It was also those eight commissioners who were previously questioned over their fairness and links to special interest groups in the process before the Constitutional Court ruling. This raise concerns over the impartiality and procedure they will follow to appoint judges to the Supreme Court.
Alleged Influence Peddling in Anti-Corruption Courts
The appellate court judge, whose application for the Supreme Court was originally rejected on spurious grounds, alleged that anti-corruption cases in her court have been compromised by misconduct of judicial personnel. Her efforts to ensure that these concerns are properly investigated have met with mixed results, further demonstrating how influence peddling in the judiciary is a direct threat to efforts to curb corruption plaguing the Guatemalan government.
On October 5, police arrested a clerk at the High Risk Court “D” for the alleged leak of information and illegal recordings inside Judge Erika Aifán’s office. The clerk is allegedly responsible for the leak, as well as altering judicial documents and recordings that allegedly contain official conversations between prosecutors and court personnel. This same clerk allegedly lost a piece of the case file in a corruption investigation that ended up with the arrest of the son of Gustavo Herrera.
A police search of the clerk’s bag found several copies of documents from Judge Aifán’s office and an original document that had an altered seal. The original document contained a report by the clerk and a complaint that Judge Aifán filed against her. However, a judge decided that there was no merit to the charges against the clerk, deeming the matter a labor dispute. On October 7, staff from Judge Aifán’s office did not show up to work but instead went on TV to accuse the judge of torture and mistreatment.
This is not the first time that leaks and sabotage have allegedly occurred in Judge Aifán’s court. In July, Judge Aifán submitted a complaint to the disciplinary unit of the judiciary branch against Pedro Luis Hernández Debroy, a judicial assistant in the court, because he allegedly distributed the judge’s decisions by WhatsApp before they were sent to the parties.
The disciplinary unit did not process the complaint filed by Judge Aifán, arguing that, after an investigation, insufficient elements were found to establish that the conduct of the judicial assistant violated labor laws. It made this decision even though the judge attached to the complaint photographs of text messages that the judicial assistant exchanged with lawyers involved in criminal proceedings.
Prior to this, in December 2018, Lázaro Ramírez Rivera, an audio technician in charge of recording a hearing of a grand corruption case, did not record half of the hearing. This led Judge Aifán to file a complaint against the technician. After the Inspector General of the Judiciary conducted an investigation, it was concluded that the defendant influenced the judicial process and may have committed a serious offense because there was an incomplete recording of the defendant’s first declaration proceeding. The case to be recorded was against José Mynor Palacios Guerra, a businessman on trial for an alleged kickback scheme with Gustavo Alejos and Alejandro Sinibaldi, two political operators with a direct interest in the selection of judges.
Guatemala’s capacity to select independent and impartial Supreme Court and appeals court judges remains vulnerable to influence peddling in the selection process. This could severely impact the country’s ability to fight corruption, drug trafficking, and mass human rights violations. The American Bar Association Center for Human Rights has recommended a number of reforms that would reduce corruption in the judicial selection process, including the publication of the candidates’ responses to basic questions about their past cases, as well as a background investigation of the candidates’ finances conducted by an independent institution. The candidates who face allegations of wrongdoing should answer questions in public hearings, and these hearings should address any concerns arising from background investigations or allegations of wrongdoing.
The Nominating Commissions must collect relevant information and address allegations of serious wrongdoing, or at least comport itself in a manner that ensures independence and impartiality. This is necessary to ensure that the new high court judges meet the highest ethical standards and are not compromised by associations with organized crime.
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.