Appointing Judges in Guatemala…From Prison
Guatemala is in the midst of a contentious legal battle, as networks of corrupt politicians and organized crime are trying to exploit the COVID-19 pandemic to attack the country’s courts. They are also disrupting over 100 cases against government officials and business leaders brought since 2015 by the Public Prosecutor’s Office and the International Commission Against Impunity in Guatemala (CICIG, a United Nations-backed entity that was expelled from the country in 2019). The battle began with accusations against political cronies of former president Otto Pérez Molina, who resigned three years into his term after months of demonstrations against his administration; he has been in prison since September 2015.
Pérez Molina’s resignation and imprisonment stirred expectations of a stronger democracy in Guatemala, but the presidential administrations that followed have just been more of the same. Nevertheless, the political-business links that were previously only suspected have since been exposed to public scrutiny. While this produced a greater awareness of how the country’s elites operate, it has also led to a direct attempt by implicated politicians to gain control over a judicial system that has been bogged down by maneuvers aimed at overturning a legal decision that gave Guatemala’s Congress authority to appoint judges.
The plot to take over the courts is led by a man who himself has six ongoing corruption cases against him: Gustavo Alejos. Two of these charges pertain to corruption in the public health system consisting of rigged purchases and public bids to benefit certain companies (some owned by Alejos and others linked to him). On February 18th, Alejos was also discovered by prosecutors attempting to manipulate court appointments. His criminal history commenced with his lobbying efforts to steer state contracts to pharmaceutical companies in exchange for financing the campaigns of two former presidents, Alvaro Colom (2008-2011), for whom he served as private secretary, and Otto Pérez Molina (2012-2015). Both have been prosecuted under the Guatemalan judicial system.
Gustavo Alejos is known as a linchpin for Guatemala’s criminal elite. He’s the type of power broker who connects everyone, and calls on the country’s most powerful businessmen. He can activate “net centers” (internet-based disinformation campaigns) to attack opponents, influence the appointments of presidents of Congress, and wring money from businessmen in exchange for government contracts. He has been a prominent figure throughout many power shifts, and pays little heed to political correctness. Many people like him − Gustavito, they call him.
Alejos started out as a pharmaceutical salesman and carefully built close relationships with Guatemala’s political elite. He understood and worked the machinery of illegal campaign financing: give money to political parties and get it back through government contracts. The first legal charges were brought against him in 2015. Alejos influenced officials from the Guatemalan Social Security Institute (Instituto Guatemalteco de Seguridad Social − IGSS) by bribing and funding the ruling party to award contracts worth millions to three of his pharmaceutical companies.
Investigations led over the past five years by CICIG have demonstrated that this pattern of corruption permeates virtually all of the country’s institutions, and continually weakens public services such as the health system. The COVID-19 crisis has clearly revealed the weakness of the health system, as hospitals collapse and doctors decry the lack of supplies such as stretchers, face masks, and other equipment. These resource shortages hold the public health system hostage while Alejos, operating from a hospital room because he supposedly has a medical condition that keeps him out of prison, negotiates the selection of new judges for the Supreme Court and the Appeals Courts.
The Special Prosecutor’s Office Against Impunity (Fiscalía Especial Contra la Impunidad − FECI), perhaps the only truly independent unit within the Public Prosecutor's Office, obtained photographs and messages from Alejos’ own phone documenting the meetings and calls that took place in this private hospital room to coordinate the appointments of judges. He spoke with at least 10 congressional representatives, dozens of candidates for public office, representatives of the judgeship nominating committee (which evaluates the candidates’ records and then passes recommendations to Congress), and with Constitutional Court judge Dina Ochoa, who was appointed by former president Jimmy Morales and always ruled in his favor and against CICIG. If Alejos’ activity had not been discovered, the selection of judges would have taken place without any appearance of irregularity.
Once they learned of this, the Public Prosecutor’s Office filed a legal motion to halt all congressional appointments of judges. The Constitutional Court reviewed the report prepared by the Public Prosecutor’s detailing Gustavo Alejos’ relationships, and decreed that the judges would instead be elected by vote. The Court’s decision established that any candidates deemed to be unsuitable would be excluded from the election. This clearly did not please the Congressional Board of Directors, chaired by Alan Rodríguez (of the ruling Vamos party) and his allies. On June 23, the day the vote was to be held, Rodriguez and his allies delayed the election until midnight, and rejected the request of a few congressmen who proposed that the official record should indicate that those appearing in the Public Prosecutor’s report would be excluded from the election.
One of the legislators who spearheaded this scheme is Felipe Alejos. Though he supposedly is not related to Gustavo, they seem to work in close coordination, as evidenced by Gustavo’s cell phone communications. Felipe is a congressional representative in his late thirties who was the vice president of the past Congress for four years, and is currently on its Board of Directors. He is viewed as the de facto president of Congress, and has a direct link to Gustavo and to different corruption networks, including the business sector.
Felipe has been accused of influence peddling on behalf of large companies, including sugar mills, due to his attempts to secure government tax credits for them. Because of his closeness with the Supreme Court, Felipe has been shielded from prosecution four times. These Supreme Court rulings always use questionable procedural arguments to rescue him at key political junctures, such as last June 29th when the election of judges ground to a standstill.
In order to stop the court appointments, Gustavo Alejos and Felipe Alejos created a plan to thwart the election of judges, with the backing of Giammattei’s supporters and the business sector. The Supreme Court controlled by Alejos accepted a case to censure the Constitutional Court for ordering Congress to consider the Public Prosecutor’s report when electing judges. This is contrary to the case law that protects Constitutional Court judges from being prosecuted as a result of their legal decisions. As they did on other occasions, the Constitutional Court stopped the case from proceeding, but the Congress ignored this order and initiated a commission to investigate the Constitutional Court judges. In turn, the Constitutional Court ruled that Congress was in noncompliance with its ruling, and ordered the Public Prosecutor’s Office to pursue criminal proceedings against the congressional representatives.
In response, the Congress censured the Constitutional Court, and in doing so garnered the support from all those who have an interest in impunity: the business associations, members of the military accused of human rights violations, and lawyers defending those accused of corruption. They are pursuing the dismantling of the Constitutional Court, which has been a steadfast obstacle to dozens of arbitrary actions by the different branches of government, and which has managed to keep the existing corruption cases alive. Businessmen dislike this Court because it does not protect them, and because it has halted resource extraction projects that do not meet legal requirements. Just as they did with the CICIG, the business sector has activated their million dollar lobby in Washington, D.C., claiming that the Constitutional Court is full of communists and that its decisions adversely affect the country’s economy.
This election is now in limbo, as is common in Guatemala—where crises do not explode but instead slowly fade away without any resolution. The election of judges to the Supreme Court and the Appeals Courts has been halted, and the congressional commission to investigate the Constitutional Court judges is still moving forward, despite having been officially suspended. Consuelo Porras, the Attorney General, has not acted on the order to take legal action on the congressional noncompliance issue, and President Alejandro Giammattei has said that none of this is his problem, although his supporters in Congress are part of the whole scheme. In an attempt to instigate diplomatic efforts to avoid an institutional breakdown, Guatemala’s national ombudsman for human rights and 50 congressional representatives have asked the president to invoke the Inter-American Democratic Charter with the Organization of American States (OAS), because government officials are trying to violate the constitution by disobeying legal decisions issued by the nation’s highest court. The Inter-American Commission on Human Rights, Diego García-Sayán (the United Nations Special Rapporteur on the Independence of Judges and Lawyers), the US Embassy, and several European embassies have all expressed their concern, especially since an accusation was filed on July 4 against Judge Erika Aifán, currently presiding over cases against Alejos.
It is clear that “Los Alejos” intend to delay this process until April 2021 when the Constitutional Court judges will change. The way things stand now, they are confident that they can gain control over this court, the most powerful institution in the country. By controlling this court, all the corruption cases brought over the past five years (which resulted in the dismantling of more than 100 political-economic-criminal networks) could be thrown out. This may also lead to the persecution of judges, prosecutors, journalists, and activists who have supported the struggle for justice.
Gustavo Alejos is not your run-of-the-mill criminal. On June 10, 2020, the US State Department revoked his visa, prohibiting him and his entire family from entering the United States. His influence in a Congress that will appoint new judges to the courts is clear evidence of the regressive forces that continue to operate from prison to protect hundreds of people accused of corruption, people who look forward to the impunity they will gain from new, loyal judges. If they are successful, they will effectively legalize impunity, making it look as if the fight against corruption that held the mafias in check had never existed.
FI name: July 2020