Guatemala and Covid-19: Justice Postponed

Photo courtesy of Alexey Hulsov

This blog piece was co-authored by Jaime Chávez Alor, Latin America Policy Manager at the Cyrus R. Vance Center for International Justice of the New York City Bar, and was originally posted on the website of the International Legal Assistance Consortium (ILAC).

Guatemala is just one of the slew of countries like Brazil, Nicaragua and Hungary that was already experiencing rule of law backsliding long before Covid-19. However, as highlighted in ILAC’s most recent rule of law assessment report, there was a window of opportunity to return to combating corruption and strengthening the rule of law in Guatemala with the ushering in of a new executive in January 2020. Guatemala’s new president, Alejandro Giammattei, even took early steps to show he was serious about fighting corruption by signing an inter-institutional cooperation agreement and establishing a presidential commission against corruption. Even though there were initial signs of hope, there are already unfortunately several reasons to fear that the rule of law will continue to backslide and that the chance for justice will be postponed during the pandemic.

Further rule of law backsliding during Covid-19 is already happening

We have already seen Guatemala’s Congress use a Covid-19 discussion to pass a bill that amends the NGO law. The amendment restricts development NGOs and has been heavily criticized since it was first introduced in March 2017 as being inconsistent with the right of association and freedom of expression. Yet, on February 11, it was “surreptitiously approved after being introduced by three congressmen during a discussion of emergency measures to confront the coronavirus, thus deceiving all transparency and debate in the parliamentary process”.[1] Guatemala’s Constitutional Court provisionally suspended enactment of the law, but its final ruling is on hold as the Court is not in session due to Covid-19.

Added challenges to judicial nominations

More than six months have passed since Congress should have elected judges to Guatemala’s highest benches, including the Supreme Court and Court of Appeals. What was already a nominations process plagued by technical failures and corruption scandals has been further delayed and is likely to become even less transparent due to the pandemic. In the midst of the national quarantine, Guatemala’s Congress met on March 17, and elected judges to the Supreme Electoral Tribunal. The Congressional session to elect the judges was closed to the media as a measure to apparently prevent spreading of the virus. In response, many sectors within Guatemala expressed concern over the lack of transparency in the election process. Despite these concerns, the nine newly elected judges took the bench on March 27. 

Almost as worrying is the fact that the first order issued by the new judges suspended the annulment of six different political parties, economic sanctions against former political candidates, advertising companies and political organisations, several of whom had allegedly illicitly financed past elections. The judges justified their order by stating that the affected parties were unable to appear in their defense due to the public health crisis. This begs the question of whether the judges used Covid-19 as a pretext to justify their ruling after being influenced to suspend the annulments and sanctions. If the answer is yes, this is not a good start for the legitimacy of the newly formed Tribunal which is meant to administer justice and root out corruption in electoral matters.

Covid-19 as a pretext for limiting civil liberties

Not only was the media excluded from the Congressional session to elect new judges to the Supreme Electoral Tribunal, but the government has placed further restrictions on journalists seeking to access and cover other Congressional sessions. On April 4, in response to the limitations, the Human Rights Ombudsman filed an amparo[2] with the Constitutional Court claiming that the restrictions violated Guatemala’s constitution. Similarly, about a week later, more than a hundred journalists, columnists, activists and civil society organizations demanded that President Giammattei and his government stop threatening their freedom of expression and independent journalism. The demand arises from the fact that the government has attempted to silence media outlets critical of the government’s response to the pandemic by using intimidation tactics and excluding journalists from official WhatsApp groups where the government disseminates Covid-19 information.

Can the Constitutional Court continue to resist?

The Constitutional Court has remained a pocket of resistance throughout the attacks on the justice sector and the rule of law in Guatemala, and hopefully this will remain true in spite of the pandemic. In addition to the amparos pending before the Constitutional Court regarding the NGO law and the restrictions placed on journalists, the Court continues to receive amparos during the pandemic. This includes amparos filed by the Human Rights Ombudsman to decentralise Covid-19 testing and for President Giammattei’s failure to appoint a head of the Presidential Secretariat for Women which works to protect the rights of women and children, an amparo requiring President Giammattei to guarantee water and electricity services throughout the health emergency and an amparo to guarantee that the conditions of employees are not modified during the pandemic. It is unclear how these pressing constitutional questions will be resolved while the Court is not in session and how much of a backlog the institution can manage once it is up and running again. How long can justice be postponed during a public health crisis?


Sources

[1] WOLA, “Guatemala: National and International Organizations Condemn Approval of NGO Law,” https://www.wola.org/2020/02/organizations-condemn-approval-of-ngo-law/ (18 Feb. 2020).

[2] An amparo is a remedy to protect constitutional rights and is common to many legal systems in Latin America.

ICC Assembly of States Parties Symposium: Day 2

Voting filled the second day of the 16th International Criminal Court (ICC) Assembly of States Parties in New York. The voting procedures for the ICC are intentionally complex – see the explanation by Stefan Barriga over at EJILTalk! – and are designed to result in a Court with a fair representation of female and male judges, as well as a collection of judges with the depth of experience necessary to try serious international crimes.

On the first day of the Assembly, two judges were elected during two rounds of voting: Ms. Tomoko Akane (Japan) and Ms. Luz del Carmen Ibañez del Carmen (Peru). Today saw three more judges elected, from Benin, Uganda and Canada.

Before the third round of voting began, Mr. Dragomir Vukoje (Bosnia) withdrew his candidacy. While no candidates emerged with the required 2/3 majority of states present and voting in the third round of voting, the fourth round resulted in the election of Ms. Reine Alapini-Gansou (Benin) and Ms. Solomy Balungi Bossa (Uganda).

The fifth round was inconclusive. At the end of that round, the candidates from Lesotho and Uruguay withdrew. Canadian candidate Ms. Kimberly Post successful garnered the required 2/3 majority in the sixth round and was elected.

KimProst

Kimberly Prost Photo Credit: Thomas Fricke

The candidate from Croatia withdrew prior to the seventh round, which then involved only the candidate from Italy, Mr. Rosario Salvatore Aitala, and the candidate from Ghana, Ms. Henrietta Joy Abena Nyarko Mensa-Bonsu. That round was inconclusive. The eighth, and likely final, round of voting will take place tomorrow morning.

After the elections, ICC member states participated in an informal consultation on the activation of the Court’s jurisdiction over the crime of aggression.

With this post, I am pleased to welcome Catherine Savard, who is attending the Assembly. She is contributing a post today on the role of the nongovernmental Coalition for an ICC within the Assembly.Catherine

Catherine is currently completing her Bachelor in Law at Laval University (Canada). She is the assistant coordinator of the Canadian Partnership for International Justice and is a member of the Partnership delegation for the 16th Assembly of the ICC. Her research interests are international criminal and humanitarian law and human rights. She recently completed a year of schooling at Åbo Akademi University’s Institute for Human Rights in Finland. At Laval University, she is involved in the International Criminal and Humanitarian Law Clinic and has undertaken research concerning the crime of aggression and the Special Tribunal for Lebanon.

Heartfelt welcome to Catherine!