Washington, D.C., February 14, 2014
President Otto Pérez Molina
President of the Republic of Guatemala
Guatemala City, GUATEMALA
Dear President Pérez Molina:
We are writing to follow up on the discussion we had with you in Guatemala City last week. We appreciated your openness to dialogue and felt the exchange of ideas was useful. We would now like to share further concerns regarding the upcoming selection of an attorney general and members of the Supreme Court, based on our review of the nominating procedures that are currently in place.
As you know, we were very disappointed by the Constitutional Court’s decision to cut short the term of Attorney General Claudia Paz y Paz. The Guatemalan Constitution clearly states that the attorney general’s term lasts four years, and the executive order appointing Paz y Paz in December 2010 explicitly said that she was to serve a four-year term. Yet the Constitutional Court ruled—with no explanation—that her term would expire in May, after only three years and five months in office.
We believe the Court’s ruling has done serious damage to the credibility of Guatemala’s justice system. Whether this damage can be undone will now depend in large measure on how the nomination processes for the attorney general and judicial posts are carried out. Unfortunately, there is good reason to fear that they will not go well. The stakes for Guatemala could not be higher.
The Future of Justice in Guatemala
In recent years, Guatemala has made important strides toward reducing impunity and strengthening the rule of law. For decades, Guatemala was known as a country where terrible acts of violence and corruption were committed with near total impunity. The lack of accountability was so severe that, in 2007, the Guatemalan government and the United Nations came together to form the Commission against Impunity in Guatemala (CICIG) as an extraordinary measure for supporting local efforts to prosecute criminal organizations.
Since that time, the Guatemalan justice system has made advances that many once thought were impossible. It has successfully investigated and prosecuted important cases involving high level corruptionand organized crime, as well as reduced impunity for violent crime—endemic problems that not only threaten the country’s democratic institutions, but also the everyday security and well-being of its people. And the justice system has advanced long-overdue accountability for human rights abuses and mass atrocities committed during the country’s armed conflict, ending years of impunity for heinous crimes that shocked the conscience of the world.
There are some in Guatemala who fear that this push for accountability—and in particular high profile cases such as the prosecution of General Efrain Ríos Montt—has damaged the country’s image internationally. In fact, the opposite is true. For the international community, the fact that Guatemala has been plagued by terrible violence and widespread impunity is not news. What is news is that the country’s justice system has finally proved itself capable of beginning to tackle these critically important cases. And this is very good news indeed, not only for victims of abuses but also for everyone who would like to see a Guatemala with more transparent and effective governing institutions, which are capable of improving public security and providing greater stability for its citizens.
These important advances havebeen made possible by the efforts of a range of actors within Guatemala. Chief among these has been an Attorney General’s Office that has—under the leadership of the current attorney general—been willing to pursue these difficult cases. Also crucial have been the members of the judiciary who have sought to apply the law impartially in the face of intense pressure not to do so. In addition, the national police and the Interior Ministry have provided critical support for the work of the Attorney General’s Office, as have civil society organizations and victims of abuse who have pressed for accountability.
These efforts, if sustained, could go a long way towards advancing Guatemala’s ongoing struggle to overcome years of chronic violence, corruption and impunity. They could help instill new faith—among Guatemalans and members of the international community—in the country’s democratic institutions. But if, instead, the current attorney general and members of the Supreme Court are replaced by individuals who lack the competence, independence, and credibility needed to fulfill their responsibilities, the recent advances in promoting accountability and the rule of law could be halted or even reversed.
Flawed Nomination Procedures
The nominating processes to fill these posts are governed by the Ley de Comisiones de Postulación. This 2009 law contains important provisions aimed at promoting the transparency of the proceedings and ensuring that the nominees possess the professional and ethical qualities necessary to carry out their responsibilities. Yet the law also suffers from serious shortcomings that could easily frustrate these aims.
One major shortcoming is the failure to require greater transparency regarding the backgrounds of the candidates and the members of the nominating commissions. These individuals are not required to disclose the identities of their business associates, employers, and clients, nor information regarding their personal finances, nor the sources of their campaign funds (in the case of those commission members who have been elected to the position). Without such disclosure, it can be very difficult to detect serious conflicts of interest that could arise, such as commission members evaluating candidates with whom they have close professional or financial ties. International standards on independence of the judiciary underline that it is not simply enough that judges are independent but that they are also seen to be independent. To this end, transparency regarding not only the selection procedures but also the background of all participants in the process is vital.
Other shortcomings involve the evaluation procedures themselves. One is the lack of a consistent system for ranking candidates. Under the current procedure, each commission develops its own criteria and ranking formula, opening the possibility for commission members to establish ad hoc systems designed to favor particular candidates rather than ensure the most qualified are chosen. Another shortcoming of the law is that it does not require the commissions to provide full explanations for their choices of nominees when those choices, other than a numerical grade.
As a result of these shortcomings, there is significant risk that the nomination processes could be marred by arbitrariness and conflicts of interest, which would lead to the selection of candidates who do not possess the qualities needed to fulfill these critical posts.
Such an outcome is not a foregone conclusion, however. The nomination processes could still work well. But this will require the commissions doing everything possible to ensure maximum transparency in their proceedings (as is stipulated by article 9 of the Ley de Comisiones de Postulación). They will need to establish reasonable criteria for evaluating candidates, apply them in an objective and rigorous manner, and allow for the active participation of civil society.
We recently had the pleasure of meeting with the president of the Supreme Court, José Arturo Sierra, who now presides over the nominating commission for candidates for attorney general. We were encouraged by the firm commitment he expressed toward maximizing the transparency of the selection process. We hope the other members of the commissions share this commitment.
In the case of the attorney general, you as president will also have a decisive role to play, as you will choose between the six nominees selected by the commission. We hope that you will exercise this responsibility with utmost care. It is a choice that will not only mark your presidency, but could determine the future of the rule of law and democracy in Guatemala.
Thank you for your attention to this urgent matter.
José Miguel Vivanco Daniel Wilkinson
Executive Director Managing Director
In August 2013, for example, Víctor Hugo Soto Diéguez, the former head of Criminal Investigation of the National Civil Police, was convicted for participating in the execution of 10 prisoners from Pavón and El Infiernito prisons in 2005 and 2006, and sentenced to 33 years in prison. In addition, 116 officials, including 17 mayors, were convicted of corruption charges in 2013, a dramatic increase from the previous year, in which 23 officials were sentenced.
In July 2013 killing of nine police agents in Salcajá, for example, law enforcement officials and prosecutors demonstrated a greater capacity to collaborate to solve high-impact crimes. Eighteen people have been charged in the crime, which was allegedly perpetrated by members of an organized crime group, and are awaiting trial.
According to an in-depth analysis by an independent NGO (the Myrna Mack Foundation), the proportion of unresolved homicides fell from 21 percent in 2009 to 12 percent in 2012. In 2009, approximately 5 percent of the homicides surveyed had been resolved through suspects being charged, a penalty being decided through reconciliation or remuneration, or proceedings being fast-tracked after the accused confessed to the crime. By 2012, that percentage increased to 28 percent, in large part because of a new faculty allowing prosecutors to bring together related crimes in a single investigation.
Former head of state Efraín Ríos Montt was found guilty in May 2013 of genocide and crimes against humanity, the first time that any head of state has been convicted of genocide in a national court. While the ruling was overturned on procedural grounds 10 days later, and will not be taken up by new judges until 2015, the conviction sent a powerful message that nobody is above the law in Guatemala. In September 2013, former National Police Chief Hector Bol de la Cruz was convicted to 40 years in prison for ordering the disappearance of a student activist in 1984.