A Final Blow to Guatemala's Justice System

Álvaro Montenegro / Publicado el 31 de March de 2021

On March 10, Guatemalan president Alejandro Giammattei named Leyla Lemus, his current chief of staff, as a magistrate to the Constitutional Court, the country’s top constitutional authority. With this move, Giammattei dealt the final blow to Guatemala's justice system. In recent years, the courts presided over a wave of prosecutions which, more than in any other Central America nation, put the country’s most powerful political and business elites up against the ropes.

Guatemala’s Constitutional Court is composed of five titular or permanent magistrates, and five alternate magistrates. Of the five titular magistrates-elect who begin their five-year terms on the court on April 14, four have connections to corrupt interests and were appointed under heavy pressure from the president. The selection of Constitutional Court judges is managed by the Office of the President, Congress, Supreme Court, Guatemalan Bar Association, and University of San Carlos — all tasked with appointing one judge each. 

The University of San Carlos, however, was the only institution to select an independent judge, Gloria Porra. The other four are aligned with the government and big business, and their interests center on maintaining impunity and securing the approval of various mining and hydroelectric projects suspended by the current court, which ruled that the projects violate international agreements on the rights of Indigenous people to prior consultation. Among these are the La Puya, Fénix, and El Escobal mining projects, as well as the Oxec hydroelectric dam.

The Constitutional Court has enormous power in Guatemala. It arbitrates disputes within the political system and is authorized by constitutional mandate to intervene in the illegal activity of state agencies. Throughout the last 35 years of democratic rule, the court has issued numerous decisive rulings, including the deposition of former president Jorge Serrano for attempting to stage a coup, overturning the sentence of ex-dictator Efraín Ríos Montt, and preventing the expulsion of Iván Velásquez, former head of the International Commission Against Impunity in Guatemala, or CICIG. 

The country’s legal framework is designed in such a way that all cases involving questions of constitutionality, whether they’re of the public interest or not, end up at the court. This is why in legal circles, it is known as “the celestial court.” There is a significant risk that the new court, loyal to the corrupt, will undo more than a decade of transformative work to advance the cause of justice in Guatemala.

In a rare turn of events in recent years, Attorneys General Claudia Paz y Paz (2010-2014) and Themla Aldana (2014-2018) oversaw exhaustive investigations into human rights violations — massacres, torture, dissapearances, and genocide — committed during Guatemala’s internal armed conflict. These investigations resulted in the prosecution of the military’s high command for acts committed during the bloodiest period of the war (1978-1984), as well as members of the police and those who carried out the atrocities. 

The CICIG also oversaw the dismantling of the extremely powerful networks of corruption that involved three presidents and a slew of campaign financiers, private contractors, and judicial election operators. This crackdown bolstered the current power of the courts and provoked a reactionary attempt to take back control of the country’s justice system.

The streak of prosecutions ended in 2018, when current Attorney General Consuelo Porras took charge of the Guatemala’s Public Ministry and began to dismantle the progress that had been made and to weaken the Special Prosecutor's Office Against Impunity (Fiscalía Especial contra la Impunidad, or FECI), the office that was left in charge of the CICIG cases after the commission was disbanded in 2019. 

Porras has obstructed investigations and often manipulates case scheduling to favor her allies. For example, Porras is currently refusing to allow the FECI to disclose the details of an accusation against Néster Vásquez, a Supreme Court magistrate-elect, who, according to recent documents, was allegedly involved in the rigging of the judicial selection process. Making this accusation public would have jeopardized his appointment.

These efforts on the part of the prosecutor’s office and some honest judges have garnered political and technical support from the U.S. government. During the Trump administration, which negotiated agreements on asylum with former President Jimmy Morales, this support waned, with the United States favoring the 2019 departure of the CICIG. With Joe Biden now in the White House, the United States is sending clear messages of support for an independent Constitutional Court—not only from the embassy, but from Biden himself, who spoke personally with President Giammattei to express concerns about the judicial selection process. 

Calls from the United States and civil society, however, have not been echoed by the president or the country’s business elites, who want a justice system that rules in their favor, so that they can get cases against them dismissed and build up a defensive wall in preparation for the potential emergence of a regional prosecutor's office with teeth — such as CICIG.

To counter these new actions on the part of the United States, forces are already coalescing to bolster the sort of Manichean nationalism that, in the past, has been successful at preventing change. Recently, the president of the Guatemalan Congress, Alan Rodríguez, invited a speaker — ironically, a foreigner — to rail against the “international globalism” and civil society organizations that are supposedly working to impose a pro-abortion agenda and socialist governance on Guatemala. 

This is how certain interests are able to spread fear among conservative sectors of society and people who believe such speeches — some naively, others because they have a vested interest — in order to justify potential repression, which will also be accompanied by an expulsion of NGOs as well as prosecutions targeting the judges, prosecutors, journalists and activists who have supported the fight against impunity.

Acts of intimidation are escalating, with the goal of enforcing social death. Family members of government opponents who work in state agencies, even those with technical or career positions, as well as individuals employed by private companies linked to the state, have been fired under threatening circumstances. Attacks on social media continue to escalate, as spurious accusations against citizens are echoed by an Attorney General’s Office that supports the regressive assault. The union between the state, organized crime, and traditional business interests is as alive as ever, and now, after standing accused before court and society, these forces are out for revenge. 

The situation is troubling. These groups are well aware that social unrest is the only thing standing in the way of arbitrary government action — of their ability to pass repressive laws or grant amnesty to the corrupt — and so they hope to criminalize protest in order to spread fear and prevent citizens from taking action.

The greatest stumbling block the president and his allies face at the moment is the firm position of the Biden administration, which knows that a strictly diplomatic path has failed to sway Guatemalan officials and has indicated the possibility of future sanctions. A new development in the fight against corruption was scheduled for this week: a visit by a senior U.S. delegation, led by Special Assistant to the White House Juan Gonzalez and Biden’s pick to head southern border affairs for the National Security Council, Roberta Jacobson, who were expected to speak frankly with Giammattei, the architect of the country’s current regression. But the visit was cancelled at noon on Wednesday, March 24, the same day the delegation was scheduled to arrive, due to the eruption of the Pacaya volcano.

The most substantial challenge facing civil society and opposition political parties will be to form alliances that can rescue democracy by developing serious political programs that offer the people real solutions. For its part, the international community needs to recognize that many of the oldest and most powerful business interests in Guatemala — the companies that own the monopolies — are also part of these networks, benefit from the weakening of institutions, and are untrustworthy stakeholders

It is crucial that in the coming years, new coalitions coalesce between businesses, civil society, Indigenous peoples, and international allies, to promote a democratization of the country. Otherwise, the only path forward will be the one that leads to authoritarianism.

Álvaro Montenegro is a journalist and one of the seven Guatemalans that founded the #RenunciaYa movement, which was later renamed #JusticiaYa. The movement played a central role in the protests that led to the resignation of Guatemalan President Otto Pérez Molina.
Álvaro Montenegro is a journalist and one of the seven Guatemalans that founded the #RenunciaYa movement, which was later renamed #JusticiaYa. The movement played a central role in the protests that led to the resignation of Guatemalan President Otto Pérez Molina.