Judicial reforms alone are not enough to strengthen the judiciary. Lessons for MACCIH and the Alliance for Prosperity°

Mirte Postema

Mirte Postema headed DPLF’s Judicial Independence Program from 2009 to 2015. She is currently Fellow for Human Rights, Criminal Justice and Prison Reform in the Americas at the Stanford Human Rights Center at Stanford Law School.

Versión en español

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Foto: Lesther Castillo

There has been no shortage of efforts to strengthen judicial institutions in Central America. Hundreds of millions of dollars have been invested in judicial reform alone in recent decades. And although these initiatives have had certain tangible effects—for instance, new laws and courts were created—public trust in the judiciary has only diminished in the countries of the Northern Triangle.

 

Everything indicates that the coming years will see another large-scale investment to, amongst other things, strengthen governance, justice, and the rule of law in the Northern Triangle: the Alliance for Prosperity. Will it have an impact this time? That will depend on a number of variables, including on the willingness of the respective governments to implement reforms and on the existence public pressure calling for them to do so (the public manifestations in Guatemala and Honduras certainly suggest that citizen oversight will continue); but it will also depend, of course, on the proposed reforms.

In past decades, judicial reforms were mostly focused on creating new infrastructure and laws (Hammergren, Envisioning Reform, 2007), in the hopes that these improvements would bolster the judiciary. However, their impact has been limited. The reason could be, as Thomas Carrothers suggested in 1999 (Aiding Democracy Abroad), that those who implemented these reforms did generally not ask themselves why the judiciary was so weak and which interests benefitted from that situation. The failure to ask these questions allowed the underlying problems to persist.

The events surrounding the judicial selection processes in Guatemala in 2014—actively monitored by DPLF—demonstrate as much. During the past decade, Guatemala has enacted a detailed body of law (much more advanced than in other countries in the region), with provisions that should guarantee transparency and the merit-based selection of judges by a group of experts.

Nevertheless, in spite of these legal developments, the processes for the selection of the Attorney General, the Supreme Court justices, and all of the judges of the Court of Appeals in Guatemala were characterized by their manipulation by special interests. For instance, the criteria for assessing the candidates favored seniority over professional qualities, the merits of the candidates were not evaluated, and objections made to candidacies were not properly considered. In spite of these obvious violations, the Guatemalan Constitutional Court validated these selection processes.

What lesson can be drawn for the Alliance for Prosperity, the large, U.S. funded aid package for the Northern Triangle, and for other (judicial) reform efforts? Essentially, that “just” implementing judicial reforms is not enough to change reality and strengthen the judiciary and the rule of law. In other words, if the underlying reasons for the weakness of the judiciary—its dependence on political forces and organized crime—are not addressed, the hundreds of millions of dollars budgeted will not have any meaningful impact.

Nevertheless, Guatemala can provide a useful example for how to address some of these structural problems: with an body like the International Commission against Impunity in Guatemala (CICIG), a hybrid entity (composed of national and international members) tasked with investigating and dismantling the organized crime that coopts and threatens the State.

Although this entity has had its ups and downs over the course of its eight years in operation, it has recently shown impressive results. Undoubtedly, its most relevant contribution has been in the investigation of cases. In recent years, CICIG has unearthed the existence of organized crime networks in which notorious criminals were involved, as well as senior government officials—including the President, the Vice President, and previous chairmen of the Bank of Guatemala. These cases also brought to light the influence of these networks over the judiciary: the CICIG discovered that a judge granted unsupervised house arrest (instead of pre-trial detention) to several criminal defendants in exchange for bribes.

As a result of these investigations, then-President Otto Pérez Molina and his Vice President, Roxana Baldetti, were forced to resign from office and are now in custody. These events provoked manifestations on a scale not seen in decades. Although these cases have not yet gone to trial, they have already had an unprecedented impact.

Indeed, this could even usher the end of impunity for other authorities previously considered untouchable: in January 2016, the Public Ministry arrested and indicted 18 retired members of the military for human rights violations committed during the armed conflict. It is difficult to imagine that this would have been possible without CICIG’s work in 2014 and 2015.

From this, one can conclude that it is essential to dismantle the criminal networks that have co-opted the State, and that this should be the first step in strengthening the judiciary, and the subsequent consolidation of the rule of law. The success of CICIG suggests that other countries facing similar challenges should consider the establishment of such entities, too.

In El Salvador, the government has rejected repeated requests to create an entity similar to CICIG. But in Honduras, the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH), another hybrid mechanism composed of national and international experts, will begin operating soon. It will receive complaints, investigate corruption cases, and, together with civil society, monitor the Honduran justice system. The success of this mechanism will largely depend on the technical capacity of its team, and the ability of its leadership to build bridges. It will also depend on the public support the mechanism is able to garner, as well as on the support from national and international political actors.

It bears noting that the creation of such mechanisms is not a panacea; CICIG Commissioner Iván Velásquez has stated that Guatemala still has a long way to go on the road to combating impunity, and that this will require significant political will and capacity-building. Nevertheless, if one compares the outcomes of the fight against impunity in Guatemala in the past two years with those of the last two decades of reforms, it is undeniable that the work of the CICIG has had a major impact.

In order for the Alliance for Prosperity to have the desired impact in the Northern Triangle, its efforts must address the core, underlying reasons for the weakness of the judiciary: its cooptation by parallel powers (connected to politics and organized crime). It is essential that CICIG continues its efforts, for MACCIH to start solid and independent investigations, and for El Salvador to seriously contemplate the creation of a mechanism similar to CICIG. Otherwise, the Alliance for Prosperity will, unfortunately, amount to nothing more than very expensive “occupational therapy.”

° This article is based on: Mirte Postema, Why Reforms Alone Are Insufficient to Strengthen the Judiciary: A Case Study of Guatemala´s Judicial Selection Processes, Hastings International and Comparative Law Review, Vol. 39, No. 1 (Winter 2016), pp. 237-266.

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