Preliminary Report: Guatemalan High Court Selection Proceedings[1]
The Guatemalan Congress will be selecting new Supreme Court and Appellate Court judges in the coming month. Given ongoing concerns about corruption in the selection proceedings, it is essential that the Congress require the candidates to disclose to the public documents concerning their past legal work and hold open hearings examining the candidates' records. Without a transparent and objective process for selecting judges, corruption in the judiciary will likely continue to stymie efforts to address widespread corruption and organized crime.
Pursuant to the Guatemalan Constitution, all 135 appellate court judges and 13 Supreme Court judges are replaced every four years. Postulation Commissions composed of judges, law school deans, and other representatives of the legal community nominate over 600 judges for these positions. The Congress is then charged with selecting from among these nominees. Last week, the Postulation Commission sent the list of nominees for the appellate courts to the Congress. In the coming weeks, it is anticipated that the Commission will send the nominees to the Supreme Court to the Congress.
International law requires that proceedings to select judges be objective, transparent, and non-discriminatory.[2] In past proceedings, the Inter-American Commission found that the nominating process for Guatemala's Postulation Commissions failed to meet these standards. For example, it found that fake law schools were created solely for the purpose of giving individuals a seat on the Postulation Commissions.[3] Criminal allegations from the last round of proceedings concerning bribery of members of the commissions have not been resolved. The American Bar Association Center for Human Rights and outside experts have observed several rounds of selection proceedings and noted significant irregularities in all of the proceedings observed.[4]
Unfortunately, the latest round of proceedings continues to be plagued by irregularities. Last year, the Constitutional Court ruled that the Postulation Commissions failed to follow relevant procedures and ordered that the Commissions begin anew.[5] In particular, it noted that qualified judges were excluded without cause and that influence peddling had led to the selection of a slate of candidates without proper review. Rather than conducting a new process, the Commissions re-submitted nearly the same names selected pursuant to the previous, flawed process after a month of deliberation. Basic information necessary to assess the qualifications of the candidates, such as past judicial decisions, was not made available. Nor were public hearings held. Furthermore, the Commissions failed to collect basic information necessary to assess the qualifications of the candidates, such as financial information.
In order to cure these defects in the selection proceedings, the Congress should require the candidates to submit their legal writings, including past judicial decisions, briefs, and academic papers. Candidates without litigation or judicial experience who cannot provide examples of their legal work should be excluded from consideration. These materials should be made public for a period of no less than 30 days so that the public can review the candidates' qualifications and present relevant information to the Congress for consideration. The Congress should then hold public hearings to address any question about the candidates' experience.
Endnotes
[1] Staff at the American Bar Association Center for Human Rights drafted this preliminary report. A final report is forthcoming. The American Bar Association (ABA) is the largest voluntary association of lawyers and legal professionals in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. The statements and analysis expressed have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and do not represent the position or policy of the American Bar Association. Furthermore, nothing in this report should be considered legal advice for specific cases.
[2] See, e.g., Inter-American Commission on Human Rights, Guidelines for the Independence of Justice Operators, OEA/Ser.L/V/II. Doc.44, ¶¶ 34, 59, and 80 (Dec. 5, 2013) citing, inter alia, American Convention on Human Rights [hereinafter American Convention], Nov. 21, 1969, 1144 U.N.T.S. 143, art. 8, 23(1), and 25; see also I/A Court H.R. Case of Apitz Barbera et al. ("First Court of Administrative Disputes") v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182, ¶ 206 (holding that the obligation to respect and ensure art. 23(1) of the American Convention requires that "the criteria and processes for appointment, promotion, suspension, and dismissal must be objective and reasonable," and that "persons do not suffer discrimination" in seeking judicial appointment.). See also UN Basic Principles on the Independence of the Judiciary, ¶ 10, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 ("Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.").
[3] Inter-American Commission on Human Rights, Preliminary Observations to the IACHR's On-Site Visit (Aug. 4, 2017) ("[D]uring the visit, the Commission learned that there are "phantom" law schools created only for the purpose of participating in such [nomination] committees and influencing their composition; it also was told about possible acts of corruption, conflicts of interest, influence peddling, and insufficient scrutiny of candidates. The consistent questions along these lines reflect profound shortcomings in the selection and appointment processes, which must respect and safeguard the principles of independence and autonomy of judges.").
[4] See, e.g., Report on the Proceedings to Select Prosecutor General of Guatemala, American Bar Association, Center for Human Rights (May 20, 2019).
[5] See Juan Ramirez-Franco, Appointment of New Supreme Court Justices to Start Over, International Justice Monitor (Nov. 27, 2019) (discussing the content and ramifications of the September 16, 2019 Constitutional Court order that suspended the nominating commissions to the Supreme Court and appellate courts of Guatemala due to fundamental defects in the nomination process.).