GUATEMALA: Despite Flaws, Judge Selection Process Improved, Say NGOs

  • by Danilo Valladares (guatemala city)
  • Friday, October 30, 2009
  • Inter Press Service

A new law that created expert committees to nominate candidates for the Supreme Court and the appeals courts for the 2009-2014 period opened up the process to citizen oversight and participation.

Nevertheless, the legislature designated six candidates to the Supreme Court who had been rejected by the United Nations-sponsored International Commission against Impunity in Guatemala (CICIG) and local NGOs because they faced serious accusations of corruption.

Even U.N. Secretary General Ban Ki-moon, through his spokesperson Michèle Montas, urged the Guatemalan Congress to make sure that the new members of the Supreme Court were competent, independent and of unquestionable integrity.

In the end, Congress only replaced three of the six candidates opposed by CICIG, after the Constitutional Court ruled that the legislature had failed to take into account the observations against the candidates.

Three other candidates questioned by NGOs, but not CICIG, were also confirmed by Congress.

Thus, a total of six of the 13 new Supreme Court magistrates appointed on Oct. 13 were opposed by local NGOs or CICIG: Thelma Aldana (the only woman on the Court), Dimas Bonilla, Mynor Franco, César Barrientos, Luis Arturo Archila and José Arturo Sierra.

Civil society groups plan to closely monitor the magistrates during their five-year stints on the Supreme Court.

In the selection of 90 appeals court judges, legislators ruled out 30 candidates who were questioned, 20 of them by CICIG and 10 by the U.S. embassy with the support of social organisations.

NGOs complained that two of the appeals court judges who were selected were related to members of the nominating committees - comprised of university presidents, law school deans, and delegates from the bar association and the Instituto de Magistrados (which represents judges) - that drew up short-lists of nominees from more than 1,000 candidates.

The short-lists were submitted last month to Congress, which selected 13 Supreme Court magistrates and 90 appeals court judges.

But despite the fact that some candidates rejected by CICIG and NGOs were designated in the end, activists say the process was a positive experience because for the first time, there was some oversight and transparency in the selection of judges.

'This process was very positive, because for the first time in the history of this country, civil society participated actively in the debate on the administration of justice and the need to take a close look at a candidate's professional qualifications and ethics,' Carmen Aída Ibarra of the Myrna Mack Foundation, a local human rights group, told IPS.

The activist said the new law that created the nominating committees allowed NGOs to actively take part in overseeing and monitoring the process, by making information available to the public and taking legal action, for example. 'More than 50 organisations got involved, and we were able to go directly to the place where the decisions on the candidates were reached,' she said.

Social organisations like the Movimiento Cívico Nacional, Pro Justicia, and Convocatoria Ciudadana submitted formal written complaints rejecting around 300 candidates (mainly to the appeals courts) with a murky past, such as involvement in illegal adoptions or other corrupt activities, or a track record of defending drug traffickers in court.

Ibarra also recognised the role played by the Constitutional Court and CICIG in helping to guarantee the transparency of the process, 'because we all knew there were dark forces behind the selection' of judges.

The worst role was played by the legislature, she said. Its reluctance to make the debate and vote on the candidates open, rather than secret, and its decision to select candidates opposed by CICIG and civil society, showed the legislators' lack of interest in fighting impunity and corruption in the country, she argued.

The administration of justice is a serious problem in this impoverished Central American country, which has one of the highest rates of non-political violence in the world.

According to the United Nations Development Programme (UNDP) human development report on Central America, released this month, Guatemala is the only country in the region where the murder rate is steadily climbing.

The report says the homicide rate soared from 28 per 100,000 population in 2000 to 48 per 100,000 today.

That situation is especially serious given that 98 percent of all murders go unresolved in this country, according to CICIG, which began to operate in January 2008 with the aim of restoring trust in corruption-riddled institutions like the police and the justice system. One of its key focuses is to help identify illegal, clandestine armed security groups, so they can be dismantled.

Eleonora Muralles, an activist with Relatives and Friends against Crime and Kidnapping (FADS), another local NGO, told IPS that 'independently of whether or not the result was 100 percent good, on the balance, the new judge selection process was positive.

'We demonstrated that by coming together behind a common objective, different groups with different ideologies could show the public how the judges were selected, how the nominating committees were created, and how each one of the committee members acted,' she said.

The new process also made it possible to shed some light on the obscure interests and powers behind the process - an aspect in which CICIG's involvement was decisive, said Muralles.

The public found out, for instance, that the governing party, the social democratic National Union of Hope (UNE), held negotiations with Roberto López Villatoro, a former member of the right-wing Guatemalan Republican Front (FRG), to gain control over the courts, the activist said.

But while Muralles said the new process for the selection of judges was a step forward in fighting impunity, she added that 'the Supreme Court is just one part of the justice system. Salvaging it is not sufficient; there are also the attorney general's office, the police, and the prison system: the entire chain has to function in order to reduce impunity to acceptable levels.'

Ramón Cadena of the International Commission of Jurists told IPS that the new process for selecting Supreme Court and appeals court judges was 'a partial step forward in the fight against impunity.'

The lawyer said civil society 'rescued' the process of the designation of judges thanks to its oversight. But he said he was concerned that six of the 13 designated members of the Supreme Court had been questioned.

That 'disturbing' situation compromises the actions of the Court, he stated.

'The selection process showed the political wheeling and dealing that occurred in the nominating committees and in Congress,' Cadena said.

For his part, Daniel Pascual, one of the leaders of the Committee for Campesino (Peasant) Unity, told IPS that his movement has witnessed the high level of influences in the justice system, which he said has been infiltrated by different drug trafficking, political and military groups.

Pascual was pessimistic with respect to the prospect of improving the administration of justice. 'This selection process was flawed, so we don't expect things to change,' he said.

He pointed out that Guatemala's indigenous peasant farmers - Amerindians represent a majority of the country's population - have suffered heavily from impunity, to the point that instead of being treated as victims in cases in which activists and local leaders are murdered, they are accused and persecuted by the justice system.

© Inter Press Service (2009) — All Rights ReservedOriginal source: Inter Press Service

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