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Author: Mirte Postema* for Americas Quarterly
This year has been important for Guatemala’s judicial system. A number of judicial posts are due to be filled in 2014, and so far this year, a new electoral tribunal and attorney general have already taken office.
In July, the selection process for Supreme Court and appeals court magistrates began. However, these two selection processes were rife with irregularities and controversy. On October 9, Guatemala’s Constitution Court (CC) issued a provisional ruling suspending the results of the two selection processes, thus taking an important step towards compliance with international standards and national law.
Although Congress generally appoints judges in Guatemala, the selection process for judges and magistrates involves special comisiones de postulación(selection commissions), which provide Congress with a shortlist of possible candidates. The commissions are made up of representatives from various areas of the legal community: law school deans, judges and lawyers.
This mechanism—which is unique to Guatemala—was designed to depoliticize the selection process. However, it is clear that the model is no longer working as intended. The commissions have been influenced by special interests—including deans from new, privately-owned universities —and there are currently no tools to adequately counteract them. Meanwhile, national and international organizations, such as DPLF, CEJIL and the Open Society Justice Initiative, have reported that Guatemala’s judicial selection process violates national and international norms.
Guatemala’s 2014 judicial selection processes demonstrate that a profound modification of the proceedings is overdue. The more robust selection criteria developed by the CC in judgment 2143-2014—which requires commissions to research the candidates’ qualifications, interview the candidates, and explain their votes—were largely ignored by the commission to select appeals court judges, and only marginally adhered to by the Supreme Court selection commission. The selection processes were also compromised by conflicts of interest, because some commission members were candidates in the other selection process.
To make matters worse, the commissions privileged seniority over merit when considering judicial candidates. The qualification tables that commissioners used focused almost exclusively on candidates’ seniority: 75 of 100 points were awarded to candidates with more than 20 years of experience as a judge, prosecutor or lawyer, regardless of the quality of the candidates’ work.
Moreover, these processes have lacked any real transparency. Each selection commissionclosed one of its sessions to the media and the public, and it remains unclear whether—and how—the information provided on the candidates’ applications was verified by the commissions. It is also unclear on what grounds public objections against certain candidates were dismissed. Lastly, during the voting process, some commissioners reportedly received instructions by phone from outside sources about who to vote for, and convinced other commissioners to follow suit.
Following a political deal between the ruling Partido Patriota (Patriot Party—PP) and Líder, the main opposition party, that gave the PP eight new Supreme Court judges and Líder five new Supreme Court judges, Congress appointed the new judges before the period for public comment had ended. Despite public indignation and legal challenges—or amparos—to the appointments, these initial objections were rejected by the CC.
On October 5, a judge who was re-elected to the court of appeals, Claudia Escobar Mejía, denounced the irregularities in the selection processes and declared that she would not take office. She called upon her fellow judges to do the same, and requested that the authorities address complaints about the judicial selection process. A wave of support from national and international authorities followed: the Procuraduria de Derechos Humanos (Ombudsman) expressed its concern about the selection process, as did the UN Special Rapporteur for the Independence of Judges and Lawyers. TheInter-American Commission on Human Rights had already spoken out on the matter. Following these events, a number of citizens felt empowered to file new amparochallenges to the selection processes.
Then, on October 9, the CC, presided over by Justice Gloria Porras, issued a provisional ruling suspending the results of both selection processes. This means that the swearing-in ceremony of the newly-selected judges, set for October 13, has been suspended and that the current Supreme Court and appeals court judges will remain in their posts until the matter is resolved. A request to revoke this provisional ruling, presented by the Plenary of the Supreme Court, was rejected by the CC on October 11.
The CC’s actions, which protect the Constitution and uphold the integrity of the country’s judicial institutions, are extremely important and provide some hope that Guatemala is slowly advancing towards respecting the rule of law. The CC is expected to issue a final ruling next month, and it is likely that the selection processes will have to be repeated. This would be good news for judicial independence.
However, given the numerous violations identified in the selection processes, it will be a considerable challenge to conduct selection processes that are really transparent and merit-based. A more profound reflection on Guatemala’s judicial selection processes—and the corresponding constitutional and legal reforms needed to improve them—are essential to strengthening Guatemala’s judicial institutions. The Comisión Internacional contra la Impunidad en Guatemala (The International Commission Against Impunity in Guatemala—CICIG) announced that it will be taking the lead in formulating proposals to ensure that future selection processes are transparent, merit-based and independent.
Guatemala still has a long way to go in implementing a fair judicial selection process. But there are certainly some new opportunities on the horizon to strengthen the rule of law—opportunities that the country can’t afford to miss.
*Mirte Postema is senior program officer of the Judicial Independence Program at the Due Process of Law Foundation.