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After being rocked by allegations of influence peddling in past selections of Supreme Court judges, Guatemala is about to
repeat the same mistakes. With a month remaining before the lists of candidates
for both the Supreme Court of Justice and Courts of Appeal are presented to the
Guatemalan Congress, the schedule proposed by the Nominating Commissions does
not allow adequate time to fully investigate candidates, including their potential
connections with criminal networks. 
Given that nearly 1,000 candidates are vying for hundreds of seats, it
is not feasible for either the commissions or civil society to conduct
meaningful vetting of the candidates. 

No Time for Vetting

As outlined in a previous blog, influence
peddling was rampant during the last round of judicial selections in 2014. This
year, there are reasons to believe that Congress, which will appoint judges
from a list of candidates put forth by the Nominating Commissions, has no
interest in appointing independent judges who might authorize investigations
into allegations of corruption by its members. 
Even absent this concern, recent developments underscore how the
commissions are not undertaking the basic steps necessary to investigate the
candidates for the high courts.

Aspiring judicial candidates in Guatemala began submitting
their applications the week of August 26. The two commissions charged with
nominating candidates – one for the Supreme Court and one for the Courts of
Appeal – are supposed to evaluate whether the candidates have the ethical qualifications necessary [pdf]. However, the commissions gave the candidates only seven days [pdf] to submit their applications, including a list of documents certifying a clean criminal and civil record [pdf].

According to the schedule established by the
commissions, after all applications were received, the Nominating Commission discharged
candidates who did not meet the formal requirements. Two of the most renowned judges
who handled high-risk cases involving corruption were dismissed from the selection process based on technicalities.

On September 11 and 12, the public will have the
opportunity to submit any information about aspiring candidates challenging
their qualifications. By the end of this week, the commissions will then have
two weeks to review this information as well as candidates’ applications to
determine their eligibility, after which candidates who have been rejected will
have an opportunity to appeal.

Scores Not Linked to Quality of Work

The commissioners will review the resumes and
background of the aspiring candidates between September 17 to 23; giving a
rating based on a table de gradación (grading
table) that assigns a numerical value to the candidates’ qualifications,
including professional experience.   

This year’s grading system divides qualifications into three categories [pdf]: professional; academic; and “human projection” (i.e. candidates work in the promotion and defense of human rights), and each
qualification receives a different weight on a 100-point scale. Seventy points are
assigned for professional background, of which candidates who served as
magistrates, judges, or law practitioners for more than 15 years receive an
automatic 60 points and those who apply to the Supreme Court with more than 15
years as an appeals magistrate or lawyer [pdf] receive an automatic 50 points. Academic degrees and
accomplishments, including faculty positions and publishing of legal articles,
will secure a total of 25 points. A final five points will be assigned to those
candidates that can demonstrate work in the non-profit field or in the
advancement of human rights.

While professional and academic accolades are
important, the Nominating Commissions should also consider the quality of the
work as well as the character of the candidates. For example, the American Bar Association’s
Standing Committee on the Federal Judiciary – the body charged with reviewing
applications for federal judicial positions in the United States – evaluates candidates [pdf] based on “the quality of a candidate’s work, not just strictly on
professional status and longevity. In evaluating a candidate’s integrity, the standing
committee considers the nominee’s character and general reputation in the legal
community, as well as, the nominee’s industry and diligence.

The standing committee also assesses professional competence, including qualities such as
intellectual capacity, judgment, analytical abilities, knowledge of the law,
and breadth of professional experience. Finally, the standing committee
considers judicial temperament, which includes a commitment to compassion,
decisiveness, open-mindedness, courtesy, patience, freedom from bias, and
commitment to equal justice under the law. The standing committee assigns an
evaluator who examines the nominee’s legal writings, conducts research about
the nominee, and identifies and reviews reported and unreported court
decisions, briefs, legal memoranda, publications, speeches for quality,
clarity, knowledge of the law, and analytical ability. 

In contrast, the Nominating Commissions in Guatemala automatically
give a substantial number of points based on whether a judge served on the bench
for a certain number of years. There is no requirement that the commissions
take into consideration the quality of the legal reasoning in decisions or potential
conflicts of interests.

The lack of investigation of the candidates’
backgrounds and the limited time to evaluate the submission of more than 1,000 applications
is a grave flaw in the process. It may allow criminal networks to secure influence
in the highest courts of the country.

It is also important to highlight that the Nominating
Commissions voted
not to conduct any interviews
or administer psychometric tests, which was a
common practice in previous processes. Furthermore, there are no plans to
review the personal financial records of the candidates. If done properly, these
practices could help ascertain whether candidates have been involved in corrupt
activities.

Irregularities in the Election of Commissioners

Even if the Nominating Commissions had sufficient time
to conduct meaningful vetting, the process would still be marred by serious
concerns about the impartiality of the commission members.  Twelve of the 36 members of the commission
charged with selecting candidates for the Supreme Court are the subject of two legal challenges by the Asociación Familiares y Amigos contra la
Delincuencia y el Secuestro
and an appeals court judge, alleging that the
call for the election was not public and was only distributed by WhatsApp
messages. All 12 commissioners were included on a single list, which was later
adopted by the association of appellate court judges, with 117 out of 123 members
of the association supporting their election. 

Individuals linked with Mario Amilcar Estrada Orellana, a politician currently detained in the United States on allegations of
drug trafficking, put forward the list of the 12 commissioners. The judge who
proposed the list, Gilma Valladares Orellana, has two siblings who ran for
office in local legislatures representing the Nationalist
Change Union (Unión del
Cambio Nacionalista) 
party, the
same party whose executive director was Mario Estrada. Two of the new
commissioners have ties with Estrada. 
Judge Edwin Ruano, for example, worked in 2017 as legal counsel for the
city of Jalapa while Mario Alejandro Estrada Ruano, Estrada Orellana’s son, was
the mayor of the city. Judge Romeo Monterrosa’s election as commissioner was also challenged [pdf] because he reportedly rejected a request to lift the immunity of
Estrada Ruano for alleged corrupt activities while he
served as mayor of Jalapa.

Four of the five judges who
allegedly proposed the list of 12 commissioners, have also applied to become
members of the Supreme Court. This may represent a conflict of interest given
that the Nominating Commission for the Supreme Court is
composed of 12 appellate court judges selected by their peers, selection over
which they had an alleged direct influence.

New Information on Corrupt Influence in the Judicial Selection Process

Last
week, the Office of the Prosecutor Against Impunity in Guatemala (FECI) and the
International Commission Against Impunity in Guatemala (CICIG) made public an
investigation describing alleged negotiations to vote for lists of preselected
candidates in the 2014 judicial selection process.

The
investigation revealed [pdf] that on the same day Congress
voted to confirm the Supreme Court judges – September 25, 2014 – a breakfast meeting
took place at a Guatemala City hotel. Former presidential candidates Manuel Baldizón
and Alejandro Sinibaldi hosted the breakfast, and in attendance were most of
the 13 Supreme Court candidates who Congress elected later that day. A company
linked to Gustavo Adolfo Herrera Castillo, who was also present during the
meeting, booked the hotel room. It was reported that the judicial candidates were
asked to swear allegiance to Baldizón and Sinibaldi as well as to their
respective political parties.

Herrera
Castillo has since fled to Nicaragua and was granted asylum there in 2018 after
being investigated for alleged acts of
corruption

in Guatemala. It has been reported that a group of 33 judges, including Supreme
Court judges, visited Nicaragua between June 22 and 26 of this
year. The day after returning to Guatemala, the association of judges voted for
12 representatives who are current members of the Nominating Commission for the
Supreme Court. However, Judge Valladares Orellana, who participated in the
trip, denied any wrongdoing and said that the purpose of the trip was
to visit the Central American Court of Justice.  

Conclusion

With a month remaining before the
Nominating Commissions must submit judicial candidates to Congress, the
prospects for credible and merit-based selection proceedings appear
limited.  Absent a decision by the
Constitutional Court to stay the proceedings of the commissions pending a
credible investigation by the Attorney General into the irregularities in the
election of the commissioners, the international community will have little
reason to trust that the Guatemalan judiciary is independent enough to
adjudicate cases of grand corruption, narcotics trafficking, or grave human
rights abuses. 

Juan Ramirez-Franco is a staff attorney with the
Center for Human Rights of the ABA. The views and opinions expressed here do
not necessarily reflect the views and opinions of the Center for Human Rights
of the ABA or of the Open Society Justice Initiative.

Source of original article: International Justice Monitor (www.ijmonitor.org).
The content of this article does not necessarily reflect the views or opinion of Global Diaspora News (www.GlobalDiasporaNews.com).

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