January 5, 2021
The Honorable Silvia Valdes
Supreme Court of Justice of Guatemala
21 Calle 7-70 Zona 1, Centro Cívico
Palacio de Justicia
Dear Magistrate Valdes:
On behalf of the American Bar Association (ABA), I write to offer our support in the upcoming process to appoint a new member of the Constitutional Court of Guatemala. We appreciate the profound importance of merit-based judicial selection proceedings in establishing and maintaining the rule of law and offer our support in the spirit of ensuring transparency during the upcoming selection process in Guatemala.
We understand that during the first quarter of 2021, the Plenary Session of the Supreme Court is responsible for appointing a new member of the Constitutional Court and an alternate to take office by mid-April. We are also conscious of the ongoing allegations of corruption concerning the nomination of candidates to Supreme Court of Justice and the failure of the Guatemalan Congress to implement the decision of the Constitutional Court with regards to the completion of that process.
Additionally, we have monitored with concern the challenges against sitting magistrates of the Constitutional Court and the use of retaliatory proceedings against lower court judges in an apparent effort to disqualify them from consideration for high court positions. These disputes have unfortunately cast doubt over the credibility of the pending Supreme Court selection proceedings and raise concerns about the process to select Constitutional Court magistrates.
To address these concerns and ensure that the pending and upcoming selection proceedings are credible, we would like to offer our assistance. For the last sixty-five years, the American Bar Association has participated in the review of federal judicial candidates in the United States; for the last forty years, the ABA has provided technical assistance in other countries to promote the rule of law, including assistance with implementing good practices in judicial selection proceedings. The ABA Center for Human Rights has observed past selection proceedings in Guatemala and made recommendations on means to improve the process for selecting high court judges. Based on this experience, we would be pleased to offer technical assistance to support the selection process for the Supreme Court.
A major study of comparative practice found that the hallmark of the most credible systems is a transparent process. In the United States, the U.S. Senate – the body charged with approving the appointment of federal judges – requires public disclosure of information on the past legal work of the candidates (including, in particular, past judicial decisions) and financial holdings, which are reviewed by the Federal bureau of Investigation. In addition, the Senate holds public hearings on judicial nominations, providing a forum for raising any questions concerning the candidates’ records and also providing the candidates an opportunity to testify and respond.
We strongly encourage you to call for the Guatemalan Congress to institute these safeguards in the pending proceedings to select Supreme Court magistrates and appellate court judges. We also encourage you to incorporate these requirements in the process for selecting Constitutional Court magistrates to ensure compliance with the constitutional requirement that candidates are only selected on the basis of their merits and honorability.
We appreciate that this is a critical moment in Guatemala’s long-standing efforts to establish the rule of law and limit the corrupting influence of transnational illicit organizations. We strongly believe that the Supreme Court has a key role to play in this process and offer our support in the Court’s efforts to do so.
Patricia Lee Refo
President, American Bar Association