Lawmakers vote in Congress, in Guatemala City, Guatemala, on September 11, 2017. © REUTERS/Luis Echeverria

(Washington, DC) – The Guatemalan Congress’s efforts to press criminal charges against Constitutional Court judges over a recent court ruling are a flagrant assault on judicial independence, Human Rights Watch said today.

In May 2020, the Constitutional Court ruled that to select suitable candidates, Congress should ensure that its process for selecting high court judges meets basic requirements. The ruling responded to a complaint that the list for Congress to select magistrates for the Supreme Court of Justice and Courts of Appeals included 15 candidates alleged in a criminal investigation to have engaged in influence peddling to fill judicial vacancies. Instead of complying with the court order, the permanent commission of Congress – charged with carrying out legislative functions when the full body is not in session – accused three of the five constitutional justices of crimes punishable with up to 10 years in prison.

“Congress’ efforts to orchestrate criminal proceedings against the constitutional magistrates are a direct assault on judicial independence, seeking to punish them for doing their job,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Judicial independence is essential to rule of law in any society and instead of attacking the Constitutional Court, Congress should follow its order and address the corruption allegations in its own judicial appointment process.”

The 13 vacancies on the Supreme Court and 135 vacancies in the Courts of Appeals for the period 2019-2024 should have been filled in October 2019. On February 26, 2020, the Constitutional Court temporarily suspended the process in response to a petition by the Attorney General’s Office based on an investigation by the Special Prosecutor Against Impunity (FECI) that revealed evidence of possible influence peddling in the selection of judicial nominees.

On May 6, the court ordered Congress to move forward with the selection and appointment process on the condition that the Attorney General’s office present its criminal investigation to Congress. The court ordered the legislators to assess whether candidates were suitable and were cited in the Special Prosecutor’s Office’s criminal investigation.

The Attorney General’s Office presented its findings to Congress on May 28. The report concluded that 15 candidates from the Nominating Commissions list were implicated in improperly influencing their own selection process.

Congress has not yet filled any of the vacancies. Instead, on June 26, Congress, with the Supreme Court of Justice’s support, initiated a preliminary proceeding to investigate the alleged responsibility of four Constitutional Court magistrates for ruling on the process for selection of judges. Congress immediately formed a special commission to investigate the magistrates. Under Guatemalan law, after the investigation ends, the full Congress must vote on whether the magistrates lose their immunity. The Constitutional Court blocked this effort, however, ruling in response to a petition by the Ombudsperson’s Office and human rights organizations that magistrates could not be prosecuted for opinions expressed in their rulings.

The permanent commission of Congress then asked the Attorney General’s office to investigate three Constitutional Court magistrates for malfeasance, obstruction of justice, violating the Constitution, adopting resolutions that contravene the Constitution, and abuse of authority – crimes punishable by up to 10 years in prison. All charges would be based solely on the magistrates’ rulings issued in May.

Judicial selection processes in Guatemala have been marred by irregularities in the past. In 2014, Human Rights Watch questioned the selection processes for Supreme Court magistrates given their arbitrariness and conflicts of interest among Nomination Commission members and candidates.

An independent judiciary is essential to the protection of human rights and respect for the rule of law, Human Rights Watch said. According to the Inter-American Commission on Human Rights, selection and appointment procedures that meet minimum criteria, such as selection based on merit and qualifications, and transparency are necessary to “ensure that those selected have the qualifications that will make for a truly independent system that affords access to justice.”

International standards also require safeguards for judicial selection methods to prevent judicial appointments for improper motives. The UN Basic Principles on the independence of the judiciary note that an independent judiciary should be able to issue their opinions “without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

“Judges should only be subject to suspension or removal for incapacity or behavior that leaves them unfit to discharge their duties,” Vivanco said. “They should never fear sanctions or dismissal for issuing rulings that may not please the executive or legislative powers.”