Based on the findings of its recent assessment report on Guatemala, the International Legal Assistance Consortium (ILAC) expresses its concern that recent efforts to prosecute Constitutional Court justices for the legal opinions they have expressed in the exercise of their duties place the justice system and rule of law in Guatemala on the verge of collapse.
If guarantees of the independence and effectiveness of Guatemala’s justice system are not restored, a decade of hard-won progress in the struggle against impunity and corruption may be lost, throwing the country – and the region – into its deepest crisis since the internal conflict.
At the time of ILAC’s mission to Guatemala, tensions had already emerged between the country’s government under President Jimmy Morales, and the UN-backed International Commission Against Impunity in Guatemala (CICIG). These erupted once more at the end of 2018, forcing ILAC to cancel its planned launch of the report in Guatemala City.
However, during the last weeks, the Morales government has not only unilaterally ended the work of the CICIG eight months before the end of its mandate, but also opened up new attacks on the country’s justice system that threaten accountability, human rights, and core constitutional principles such as the separation of powers.
The most alarming development has involved efforts to lift the immunity of justices of the Constitutional Court of Guatemala that have played a decisive role in decisions blocking Government efforts to sideline the CICIG. The basis for these efforts are allegations that the judges’ majority opinions were “arbitrary and illegal.”
The request to lift the immunity of the judges was made by the Solicitor General of the country – who has no jurisidiction in criminal matters – and allowed to proceed to Congress by a majority of the Supreme Court, despite the fact that the complaint did not specify which Constitutional Court decisions were objectionable.
This development represents an escalation of an alarming trend observed by the ILAC mission whereby judges that acted with integrity faced administrative harassment, career disadvantages, denial of resources and security, and even apparent attempts to spy on them. Among numerous recommendations in the report relevant to these issues, ILAC made the following addressed to the Government of Guatemala:
- Take all necessary steps to 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.
- 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 current escalation from denial of resources and harassment to efforts to actually prosecute judges flies in the face of international standards and best practice. In a 2016 report on judicial accountability, ILAC member the International Commission of Jurists noted that, in order to protect judicial independence:
…judges should in principle be immune from criminal proceedings in relation to the content of their orders and judgements (i.e. the interpretation of the law, assessment of facts, or weighing of evidence), and the due discharge of their judicial duties more generally (26-7).
This idea is supported in the reports of UN Special Rapporteurs on the Independence of Judges and Lawyers, including Ms. Gabriela Knaul, who held this position from 2009-2015 and participated in the ILAC assessment on behalf of ILAC member the International Association of Women Judges.
Judges should be held accountable for conduct that renders them unfit to carry out their duties or complicit in gross violations of international law,” she said. “However, the threat of prosecution for simply interpreting the law makes it impossible for judges to fulfil the role expected of them in any ordinary legal system.
The dissenting justices on Guatemala’s Supreme Court have also argued that the prosecution of Constitutional Court justices for opinions expressed in the exercise of their duties is illegal under national law, and that the decisions of the Court are binding on all other public bodies.
The Inter-American Commission on Human Rights (IACHR) has also condemned this process as a violation of separation of powers, the independence of the judiciary and the rule of law, and expressed concerns regarding offensive statements regarding the Constitutional Court made by state agents and congressmen at a time when the atmosphere in the countryis extremely polarised.
ILAC and its member organisations will continue to monitor the situation and urge all actors in Guatemala to preserve and uphold the rule of law. As ILAC member the American Bar Association indicated in a recent press release:
There can be no rule of law, nor an effective democracy, without governmental compliance with court decisions and with the fundamental principle of international law that agreements are to be respected.
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 52 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.
The report of the mission, available both in English and in Spanish, identified severe ongoing rule of law challenges in Guatemala and recognised the crucial role the CICIG has played in supporting the institutional capacity of the judiciary and prosecution service to address them.