Rule of Law Backsliding and a Rapidly Closing Space for the Justice System in Guatemala

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The rule of law has rapidly continued to backslide in Guatemala since my last post on ILAC’s report on the Guatemalan judiciary and our call for support to the United Nations-backed International Commission Against Impunity in Guatemala (CICIG). I had originally planned to discuss in this post how the current situation in Guatemala reflects the challenges and opportunities for promoting justice globally in the context of the United Nations 2030 Agenda for Sustainable Development. But, with such significant rule of law backsliding, the more pressing question is if it is possible to push back against this rapidly closing space for the justice system in Guatemala without CICIG?

Rule of law backsliding

In 2018, Guatemala’s Constitutional Court ruled against President Morales’s attempts to bar CICIG’s Commissioner from reentering the country, and since the beginning of the new year President Morales has retaliated against the Guatemalan justice system.

On January 7, President Morales declared that he was unilaterally and immediately terminating the agreement establishing CICIG even though its mandate does not expire until September. He also demanded that all CICIG officials leave the country within 24 hours. In his declaration he stated that CICIG had severely violated national and international laws and that it put the security, public order, governance, human rights, and above all the sovereignty of Guatemala at risk. This type of authoritarian overreaching to attack and dismantle the rule of law follows the pattern of authoritarian trends globally, as evidenced by V-Dem Institute’s 2018 Annual Democracy Report.

Two days after President Morales’s declaration, Guatemala’s Constitutional Court ruled that his unilateral decision was unconstitutional. This was a step forward for the rule of law in Guatemala and it appeared that the justice system was pushing back against a closing space. Nevertheless, this positive momentum was short lived. Later that same day, Guatemala’s Supreme Court accepted a request from Congress to begin impeachment hearings against three Constitutional Court magistrates and to lift their immunity. The magistrates subject to that request are those who have consistently ruled in favor of CICIG. The impeachment proceedings are currently pending before Congress, and the ultimate decision on whether to lift the magistrates’ immunity and possibly remove them from the bench now lies with a Congress which is heavily aligned with President Morales.

In addition to President Morales’s unconstitutional unilateral decision to terminate CICIG’s mandate, another recent alarming indicator of rule of law backsliding is that Guatemala’s Congress is considering an amendment to its National Reconciliation Law which would grant amnesty to those convicted of serious human rights violations within 24 hours of the amendment’s ratification. This would result in the freeing of more than 30 convicts, most of whom are former military officers, and end any ongoing or future trials for crimes which occurred during Guatemala’s 30-year internal conflict.

Rule of law without CICIG?

CICIG, as a hybrid of international experts and authorities working with national criminal investigative institutions, has provided a mechanism for “accomplished and courageous leaders and prosecutors to emerge” in Guatemala’s attorney general’s office. The result was the prosecution of high-level government officials, including former presidents, ministers, and army officers, the breakup of over 60 criminal networks and 310 related convictions, fighting corruption throughout the judiciary and government, and strengthening the rule of law through programs, projects, and legislation. It is estimated that CICIG has contributed to a net reduction of more than 4,500 homicides from 2007 to 2017. CICIG thus brought Guatemala closer to achieving the targets of Sustainable Development Goal 16 (SDG 16) of the United Nations 2030 Agenda by: significantly reducing all forms of violence and related death rates (Target 16.1); promoting the rule of law at the national level and ensuring equal access to justice for all (Target 16.3); significantly reducing illicit financial and arms flows, strengthening the recovery and return of stolen assets, and combating all forms of organized crime (Target 16.4); and substantially reducing corruption and bribery (Target 16.5).

In ILAC’s recent report on the Guatemalan judiciary, we recommended to the government of Guatemala that in order to guarantee the rule of law for all persons (relating to SDG 16, Target 16.3) it must: support the independence of justice operators, including ensuring adequate resources are made available to the justice sector to ensure that it can perform its vital function, and guaranteeing the safety of justice operators, in particular judges in jurisdictions such as the High Risk Courts; confirm state support for the rule of law and the independence of the judiciary; and ensure that the state complies with court judgements and provides adequate resources for the enforcement of judgements, such as those by the Constitutional Court.

The continuance of Guatemala’s rule of law achievements and the support and oversight for implementing our recommendations, however, relied on CICIG’s existence.

Pushing back

Given the significant rule of law backsliding, is it possible to push back against the rapidly closing space for the justice system in Guatemala? First, it is important to note that Guatemala will hold presidential and congressional elections this summer. The elections, if conducted in a free and fair way, could bring about significant change to the current political climate. And, although the international community could not prevent an abrupt end to CICIG’s mandate, there is resistance to the closing space on the national level. Guatemalans have openly protested against the rule of law backsliding, and just last week Guatemala’s Attorney General opened an investigation into first lady Patricia Marroquin de Morales’s alleged cashing of unreported campaign checks made out to President Morales during his election bid.

This push back by civil society and justice sector actors on the national level against the closing space is hopefully a signal that the change brought about by CICIG’s work will have a lasting effect on the Guatemalan justice system. The international networks of judges, lawyers, and human rights organizations must support and encourage civil society and legal professionals in Guatemala and raise awareness of the dangers of the current rule of law backsliding. With such support, Guatemala’s civil society and the justice system’s actors and institutions can hopefully withstand the executive and legislature’s attacks on the rule of law.

ILAC was established in 2002, to facilitate cooperation by international and regional actors involved in rebuilding justice systems and the rule of law in conflict-affected countries. In 2017, ILAC selected a delegation of experts from candidates put forward by its 50+ member organisations to carry out an assessment of the justice sector in Guatemala. The delegation traveled to Guatemala in October 2017, meeting with over 150 Guatemalans, including judges, prosecutors, lawyers, human rights defenders and business leaders. Follow the latest ILAC news at www.ilacnet.org and on Twitter @ILAC_Rebuild.

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