Onward and upward, or moving backwards? What’s next for Guatemala and the Human Rights Ombudsperson’s Office

Katharine Valencia

Program  Officer DPLF

Versión en español

Flag of Guatemala

Today, the Human Rights Commission of the Guatemalan Congress will begin reviewing the qualifications of candidates who applied to be the next Procurador(a) de Derechos Humanos, or the Human Rights Ombudsperson.

The Guatemalan Ombudsperson, who serves for a five-year term, is charged with investigating and publicizing human rights violations, and promoting judicial or administrative actions or remedies as needed. The current Ombudsperson has done this by, for example, submitting amicus briefs to the Constitutional Court in favor of indigenous peoples’ rights, and requesting precautionary measures from the Inter-American Commission on Human Rights for protection in urgent situations. The position has been referred to as the representative of the public conscience (“magistratura de consciencia”). Currently the Ombudsperson’s office (PDH) also includes over a dozen specialized departments (Defensorías) tasked with defending the rights of particularly vulnerable populations, including women, children, the elderly, and indigenous peoples.

Why is the Human Rights Ombudsperson so important in Guatemala?

Many countries have this type of official, but given Guatemala’s recent history of armed conflict, the role of the Human Rights Ombudsperson is especially significant. Moreover, Guatemala is at a turning point in its history. Huge strides have been made in the country in a short period of time. Last week marked the two-year anniversary of massive, peaceful citizen marches against corruption, in response to revelations made public by CICIG (the International Commission Against Impunity in Guatemala). These protests led to the resignation and arrest of the sitting President and Vice-President. In recent years, the nation’s courts have also adjudicated important cases of human rights crimes related to the internal armed conflict. Furthermore, Guatemala’s Congress is in the process of considering Constitutional reforms that would, among other things, seek to limit the influence of organized crime and economic power groups on judicial selection processes. While many celebrate this progress, there are strong and vocal sectors of society that vehemently oppose trials for historic crimes, the presence and role of CICIG, and the proposed Constitutional reforms. In this divided context, there is real concern that groups which seek a return to the prior status quo are negotiating behind the scenes to promote their favored candidates in order to co-opt the PDH.

Therefore, a transparent and merit-based process which seeks to identify and elect the most qualified candidate is more crucial than ever to ensure that the new Ombudsperson is genuinely committed and has the experience to effectively promote and defend human rights in Guatemala.

Process

According to the Constitution and applicable law, the Ombudsperson is elected by Congress from a roster of three candidates, which is submitted by the Congressional Human Rights Commission. (One representative of each political party sits on this Commission.) Throughout the course of the month of May, the Commission will evaluate the 31 candidates to arrive at their three finalists to present to Congress.

 Civil society and independent media should play an active role in ensuring that only the very best candidates are named as finalists, and that any “anti-rights” individuals do not advance in the selection process. One way to do so is by closely monitoring the work of the Human Rights Commission and demanding transparency. Some civil society groups are already hard at work at this, but wider engagement by a broad range of human rights and pro-transparency NGOs would be welcome. Specifically, civil society will have the opportunity to submit complaints (“inculpatory evidence”) against candidates to the Commission from May 11-17. Therefore, activists, lawyers, and independent journalists should be prepared to present well-founded complaints against any unqualified candidates.

 Profile

The applicable legal framework only specifies that the Ombudsperson should have the same qualifications as a Supreme Court Justice, i.e. he or she must be a lawyer and a native-born Guatemalan citizen “of recognized honorability.” These elements must be understood as minimum requirements (negative controls) rather than a description of the ideal profile of a highly qualified candidate (positive controls). Elements of an ideal profile for the Ombudsperson include, for example, strong moral character, in addition to significant experience defending or promoting human rights in Guatemala and a strong knowledge of international human rights law. The Ombudsperson, like all high judicial or semi-judicial officials, should be independent at both the personal and institutional levels. That is, he or she must be willing able to speak truth to power and able to avoid and resist pressures to overlook human rights violations, impunity, and structural violence.

This means that evidence which indicates that PDH candidates have ties to illicit groups or power structures that work against human rights; allegations of corruption (or conflicts of interest that would be ripe for corruption); or any other factors that strongly suggest a candidate would be unwilling or unable to defend the human rights of all Guatemalans, should be submitted by civil society and, if well-founded, lead to disqualification by the Commission. In contrast, candidates with a demonstrated track record of defending human rights, a commitment to independence and the fight against corruption, and the ability to represent all Guatemalans, especially marginalized groups, should be held up and promoted by civil society.

Conclusion

The next Ombudsperson will take up the post in August 2017. May that moment be a time to celebrate and move forward in the protection and promotion of human rights in Guatemala, rather than a setback that will have negative repercussions for the next five years and beyond.

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