January 5, 2021
Ovidio Ottoniel Orellana Marroquín
Board of Directors
College of Attorneys and Notaries of Guatemala
Dear President Orellana Marroquín:
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 Assembly of the College of Attorneys and Notaries of Guatemala is responsible for appointing a new magistrate and an alternate for the Constitutional Court, both to take office by mid-April. We are also cognizant of the ongoing allegations of corruption concerning the nomination of candidates to the Supreme Court of Justice and the failure of the Guatemalan Congress to implement the decision of the Constitutional Court regarding the completion of that process.
Additionally, we have monitored with concern the challenges to 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 of the College of Attorneys and Notaries of Guatemala.
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 respectfully encourage you to call for the Guatemalan Congress to institute similar 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 be selected only on the basis of their merits and honorability.
We further encourage the College of Attorneys and Notaries of Guatemala to investigate potential unethical conduct by Guatemalan attorneys who have sought to lift the immunity of sitting Constitutional Court magistrates in apparent retaliation for the Court’s decision ordering additional vetting of Supreme Court magistrates. The ABA’s statement on this matter, issued in July 2020, is available here.
Such proceedings raise concerns regarding the abuse of process to influence the judiciary. Principle 14 of the UN Basic Principles on the Role of Lawyers provides that lawyers “shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.” Principles 2 and 3 of the UN Basic Principles on the Independence of the Judiciary state that judges shall decide matters before them without any “threats” and “shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.” Based on these principles, it is clear that the filing of a criminal proceeding for the purpose of threatening a judge for deciding a matter that was within the judge’s competence would be inconsistent with international standards regarding judicial independence and legal ethics.
If the proceedings against the Constitutional Court magistrates were initiated with the intent to exert pressure on them, then the initiation of these proceedings would raise concerns regarding the fulfilment of the lawyers’ ethical obligations to refrain from filing frivolous claims or to attempt to improperly influence a tribunal. Thus it is important that the College of Attorneys and Notaries of Guatemala investigate whether the complaint filed against the Constitutional Court magistrates met the ethical obligation of attorneys not to file such complaints for an improper purpose.
We appreciate that this is a critical moment in Guatemala’s long-standing efforts to establish the rule of law and control the corrupting influence of transnational illicit organizations. We strongly believe that the College of Attorneys and Notaries of Guatemala has a key role to play in this process, and are pleased to offer our support in the College’s efforts to do so.
Patricia Lee Refo
President, American Bar Association