Katharine Valencia

DPLF Program Officer

Versión en español aquí

An ambitious Constitutional reform project convoked by the Government of Guatemala has been underway over the past few months. Known as the “National Dialogue for Justice Sector Reform” (Diálogo Nacional: Hacia la reforma de la Justicia en Guatemala), this project has been led by a Secretariat composed of the Attorney General’s Office, the Human Rights Ombudsman, and the International Commission against Impunity in Guatemala (CICIG, in accordance with its mandate to propose legal reforms). These entities joined forces to draft a proposed set of Constitutional reforms, focusing on a relatively narrow set of specific issues: judicial independence, legal aid, and indigenous justice systems, among others.

The proposed reforms attempt to tackle some of the most glaring problems with the Guatemalan justice sector in recent years. For example, the proposals regarding judicial independence focused on Constitutional Court and Supreme Court selection processes, which in Guatemala have generally not been up to international standards regarding merit, transparency, and objectivity – despite the incorporation of formal mechanisms for citizen participation – thereby undermining public faith in the courts themselves. (DPLF has reported extensively on these processes in Guatemala in recent years and advocated for their improvement.)

Additionally, one of the Constitutional reform proposals sought to recognize “judicial pluralism” (pluralism jurídico) – that is, the complementarity and validity of indigenous communities’ justice systems with the “ordinary” Guatemalan justice system. As a country with a majority indigenous population, the lack of official recognition of judicial pluralism puts Guatemala out of step and behind the times compared to other countries in the region, including Colombia, Bolivia, and Peru. The text of the proposed reform would correct this (and would also ensure that any procedures under indigenous law must comply with international human rights law and the Constitution to be considered valid).

Upon the publication of the proposed reforms, an unprecedented process of public consultations took place throughout the country over the course of several months. It was reported that these consultations were constructive and that respectful dialogue took place among diverse groups with divergent views. While the sessions were not without tension at times, the general consensus seems to be that the consultations in and of themselves were a positive exercise for Guatemalan civil society.

Stakeholders were also invited to present their written comments on the proposed reforms. In our formal submission, DPLF honed in on the high court judicial selection processes. We supported these proposed reforms in general, agreeing that the process for selecting the Supreme Court should be simplified by eliminating the role of the certain selecting entities (unfortunately, such “Postulation Commissions” arising out of earlier legal reforms have become corrupted and led to unforeseen consequences). DPLF emphasized that there must be a transparent merit-based process for selecting the Constitutional Court justices, the lack of which is a major weakness of the current Constitution. We also emphasized the need to specify a clear, detailed profile that lays out the qualities and qualifications that are expected of judges. (For further information on our critiques of the Constitutional Court selection process, see our recent report recent report.) We also suggested that the reforms be more clearly in support of gender parity and diverse representation in the judiciary.

As the various proposed reforms were discussed in detail over the summer, some points of consensus were reached – including that changes to high court selection processes were indeed required to strengthen judicial independence in Guatemala. The National Dialogue Secretariat reports that the civil society working groups on the whole endorsed the following: eliminating the postulation commissions in selection processes, in turn strengthening the role of an independent Judicial Career Council; increasing the number of Constitutional Court justices (currently at 5; the proposal document suggested raising this to 9 justices); and considering gender and ethnic diversity in the composition of the judiciary.

However, the issue of judicial pluralism was a major point of contention in this process and a consensus was not reached on this matter. Many indigenous groups and their allies participated in the consultations and advocated for judicial pluralism. However, there was a strong contingent opposed to the proposed reform on this topic, including representatives of the business sector. Their arguments demonstrated concerns about whether judicial pluralism would amount to the unequal application of the law. However, a factor that cannot be ignored in this debate is the context of social conflict around megaprojects (such as mining) that are often undertaken in lands claimed by indigenous peoples but without their free, prior and informed consent as required by international law. It is therefore unfortunate but not surprising that businesses with actual or potential operations in indigenous communities might oppose strengthening the rights of these communities.

One of the most sensitive tasks of the National Dialogue Secretariat is thus how to formulate its final proposal regarding judicial pluralism. On the basis of the public consultations, it is due to revise its initial package of reforms and send a draft to Congress for its consideration. If Congress can then agree on those reforms (something that is far from guaranteed), it will then fall to the people of Guatemala to ratify the reforms via a plebiscite. (This would not be the first time that Guatemalans were asked to vote on Constitutional reforms; in 1999 a set of reforms primarily related to the 1996 Peace Accords were put to a public vote and the people voted “No,” although it is worth noting that there was extremely low turnout.)

The National Dialogue process has a real chance of improving the justice system in Guatemala, including for historically marginalized groups such as indigenous peoples. However, advocacy and information campaigns by Guatemalan and international civil society will be necessary to ensure that the proposed reforms do not stagnate in Congress and subsequently, that there is broad public support for the adoption of such reforms.