Judicial Independence Under Threat in Guatemala
By Emi MacLean
Guatemala’s justice system was praised around the world last year for the prosecution of a former dictator for atrocities carried out against his own people. Efraín Ríos Montt was put on trial and convicted of genocide and crimes against humanity, in a painful public examination of a brutal period in the country’s long armed conflict, during which tens of thousands of people were killed or “disappeared.”
What a difference a year makes.
The conviction of Ríos Montt has been followed by a severe backlash. Only days after the verdict, in a divided and controversial ruling, Guatemala’s constitutional court annulled the sentence and left the genocide trial in a state of uncertainty that continues until today.
The lead judge in the genocide trial, Yassmin Barrios, received international respect for presiding over the complex case. She was honored with an award from Michelle Obama, who cited her 18 years as judge in Guatemala, presiding over some of the country’s most high-profile cases, including massacres, political assassinations, and drug trafficking.
But in Guatemala, her career is in jeopardy. Early this year, the Guatemalan lawyers association sanctioned Judge Barrios for “ridiculing” the defense attorney during the trial. She appealed the specious ruling—believed to be only the second reprimand issued by the association in the past five years. The country’s constitutional court is now considering the case. (The Open Society Justice Initiative has joined eight other regional and international groups in calling for the lawyers association sanction to be rejected.)
Independent prosecutors have also been rebuked. In February, in a ruling relying on out-of-date transitional provisions of the decades-old constitution, the constitutional court ordered the premature end to the tenure of Claudia Paz y Paz, Guatemala’s celebrated attorney general. That Paz y Paz was responsible for successes in turning around a public prosecutors’ office known largely for turning a blind eye to serious crime was not enough to protect her from reprisal, and in fact may have played a large part in it.
Guatemala is now also in the midst of selecting the country’s entire slate of appellate and supreme court justices, a process that takes place every five years. Due to be resolved last month, the final selection of senior judges in Guatemala has been abruptly frozen after allegations of rampant corruption in the process were demonstrated unmistakably. Appeals court judge Claudia Escobar resigned and turned over an audiotape of a Guatemalan legislator seeking her support in a case implicating the vice president, in exchange for the legislator’s support in the nomination process. The leaked tape laid bare the crooked state of the judiciary in Guatemala. The constitutional court temporarily suspended all of the judicial nominations and is now considering how the process will proceed.
Amid all these judicial shenanigans, one of the strongest voices for reform has been the International Commission Against Impunity in Guatemala (CICIG), a United Nations-backed institution that was set up to fight organized crime and corruption in Guatemala. CICIG was the institution that Judge Escobar turned to with the tape of the legislator’s proposed tit-for-tat. Unfortunately, its current mandate will expire next year, unless renewed.
Recent events have shown that Guatemala’s justice system is still subject to powerful political and economic interests. An association of lawyers must not be permitted to admonish a judge, with legal consequences for her ability to practice. The impartiality of judicial actors must be respected, even if it means the delayed naming of a new slate of judges. As it is one of the best checks on malpractice, President Molina should renew the mandate of CICIG so it can work hand in hand with prosecutors and the interior ministry, beyond next year.
Some courageous judges, prosecutors and human rights defenders have demonstrated that genuine reform is possible. How the country deals with these current crises will determine whether there is still room in Guatemala for an independent judiciary, accountability, and a public reckoning with grave crimes.
Until April 2016, Emi MacLean was a legal officer for freedom of information and expression with the Open Society Justice Initiative.