CICIG’s Achilles Heel: Suggestions for Reforming the Guatemalan Judiciary

In 2015, an innovative institution in Guatemala—the International Commission Against Impunity (CICIG)—got a lot of attention (including from me on this blog). Among CICIG’s triumphs last year were the resignations and arrests of former Guatemalan President Otto Perez Molina and Vice President Roxanna Baldetti on corruption-related charges following a Guatemalan Spring of sorts. Perez was formally charged in December with illicit association, customs fraud, and bribery. He maintains his innocence, claiming to be a scapegoat and arguing that nothing has changed about corruption in Guatemala except that he is now in jail. Unfortunately, without major changes he is likely to be right on the latter point. To be sure, removals of corrupt leaders like Perez and Baldetti are victories. But while Perez’s fall from grace and the general outpouring of public anticorruption sentiment in Guatemala are cause for great optimism, there is reason for trepidation as his case moves toward trial this year.

The reason is a decade-old compromise made during CICIG’s founding based on national sovereignty concerns. A Guatemalan court ruled that CICIG would be unconstitutional if empowered to try cases outside of the Guatemalan judicial apparatus. As a result, the success of CICIG and its proposed spin-offs remains inextricably tied to the strength of domestic institutions. CICIG can investigate and support prosecutorial efforts, but must rely on the domestic judiciary to hear its cases. Unfortunately, domestic governments across Central America remain notoriously corrupt. Even after a decade of CICIG’s efforts toward capacity building, the Guatemalan government is no exception. The Guatemalan court system is largely defined in Guatemalan citizens’ political consciousness by its inability to obtain convictions in important cases. Reform of the judiciary must be a central focus of anticorruption efforts going forward. The following challenges should be prioritized:

  • Bribery and Intimidation of Judges: Attempts to buy or barter for judicial support are huge concerns in Guatemala that must be addressed. At the very least, anticorruption activists should prioritize protections for whistleblower judges like Judge Claudia Escobar, who recorded a conversation in which a politician attempted to bribe her for a political favor, turned the recording over to CICIG, and eventually fled the country due to intimidation. In addition, continued investigation and prosecution of individual instances of judicial corruption will help to provide transparency and dismantle the culture of impunity.
  • Politicization and lack of impartiality: Guatemala lags in conflict of interest legislation, and ranks poorly on World Bank conflict of interest measures related to business. And, there is speculation that the last Guatemalan president charged with corruption, Alfonso Portillo, escaped justice in Guatemala based on politics rather than innocence. There is video evidence of improper contact between Portillo’s defense attorney and the judge in his case. Portillo, who stole $15 million of public funds, was eventually extradited and convicted on charges of money laundering in the United States after he was acquitted in Guatemala. Though President Perez’s trial date has not been set yet, there are already indications that his trial will also involve abnormalities in the defendant’s favor. Two of the highest-ranking CICIG investigators who worked on his case for the prosecution have recently switched over to work for his defense (for substantially better pay). If these early reports are true, the Perez example shows the importance of further regulation within CICIG, perhaps in the form of robust conflict of interest stipulations in CICIG employee contracts.

To be sure, there are reasons for optimism on the anticorruption front in Guatemala. Public anticorruption sentiment, and support for CICIG, remains strong. And, the impunity rate for killings has dropped considerably in just a few years—from 95 percent in 2009 to 72 percent in 2012. While the outcome of Perez’s case may not be determinative for the future of impunity in Guatemala, these reforms would likely contribute to justice in his case and others in the future.

6 thoughts on “CICIG’s Achilles Heel: Suggestions for Reforming the Guatemalan Judiciary

  1. Thanks for this enlightening—if somewhat disheartening—post. Where 72 percent impunity for killings is an improvement, it’s clear there is still a long way to go. Your second point, on regulating the use of amparos, seems like a fairly accessible reform to at least get on the books. Would there be similar mechanisms from other legal system that could suggest approaches to regulation while still allowing the appropriate procedural protections? The sanctions for lawyers who abuse the available procedures in other jurisdictions might offer some insights. At the same time, those sanctions would need to be used frequently enough to be a credible threat to lawyers pressured to throw everything at the wall. Where you mention the judge’s authority over amparos, would that just be the ability to allow or disallow certain motions? Or could judges also be able to limit the number of motions made or the contexts in which they might be made? Of course that wouldn’t go a long way without punishments for the bribery or intimidation of judges as well.

    • To your last point, I agree that amparo regulation would likely be necessary but not sufficient. Looking to other legal systems for guidance in balancing concerns about procedural protection and overuse seems like a great first step. I imagine that regulation could take the form of restricting overall number of challenges within a given trial, or else providing further guidance to inform judicial discretion.

  2. Pingback: Suggestions For Reforming The Guatemalan Judiciary | Anti Corruption Digest

  3. Great post. For readers who want to know more, may I recommend our newly-published 145-page report, Against the Odds: CICIG in Guatemala, written by Patrick Gavigan, which can be downloaded here: https://www.opensocietyfoundations.org/reports/against-odds-cicig-guatemala

    There is also a Talking Justice podcast with the author: https://www.opensocietyfoundations.org/voices/experiment-international-justice-brought-down-president

    Thanks, Jonathan Birchall
    Communications Officer
    Open Society Justice Initiative
    jonathan.birchall@opensocietyfoundations.org

  4. Pingback: Why Convictions Should Not Be the Focus of Anticorruption Efforts | Anti Corruption Digest

  5. Pingback: Weekly News Roundup, July 14, 2017 – MCC LACA

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