GAB is honored to welcome Judge Claudia Escobar, who contributes the following guest post:
Guatemala usually does not get a lot of attention from the international media, and when it does it is usually because of widespread violence or political instability. But lately the country is gaining recognition for its serious efforts to fight corruption and impunity. Partly due to the legacy of 36 years of internal armed conflict, Guatemala has been plagued by a culture of impunity, as well as a legacy of criminal structures that infiltrated government institutions—structures that are still operating today, more than a decade after the 1996 Peace Accords. In response to this problem, the Guatemalan government to ask the United Nations for help in rebuilding the rule of law, and in response, the International Commission against impunity in Guatemala—CICIG—was created in December 2006 when the Guatemala Government and the UN signed the agreement. This new institution was conceived as an independent body to support the Public Prosecutor’s Office, the National Police, and other state law enforcement institutions. The ultimate goal of CICIG is to strengthen institutions within the judicial branch so that they will be able to confront illegal groups and organized crime.
CICIG has already been hailed as a major success and a potential model for other countries in the region to follow. Its most well-known impact to date is that its investigation into systemic corruption in the government of President General Otto Perez Molina and Vice President Roxana Baldetti ultimately forced both of them to resign. Another, more recent development has gotten much less attention in the international press, but is also a crucial step forward in Guatemala’s struggle to build the rule of law: On October 2016, as a result of a CICIG investigation that commenced two years earlier, former Congressman Godofredo Rivera and attorney Vernon Gonzalez were found guilty on corruption-related charges for attempting to influence a judge. Sentencing two white-collar defendants, with strong political connections, to lengthy prison terms for attempting to influence a judge is unprecedented in Guatemala, and a major step forward. This case was the first case of corruption to be presented against a high official in power by the office of the Attorney General Attorney and CICIG since the Commission was established. It is also the first sentence handed down under the anticorruption law approved in 2012 (which, coincidentally, Congressman Rivera signed into law when he was president of Congress).
The sentence also has a great deal of personal meaning for me, because I was the judge who Rivera and Gonzalez tried to corrupt, and I was the one who filed the case with CICIG.
To understand what happened in my case, as well as its broader significance, it’s important to understand a bit about the judicial selection process in Guatemala. Even though the constitution establishes Guatemala as a republic with three separate branches of power, in practice the judicial branch has always been weaker than the executive and legislative branches, and those who hold power, such as members of Congress, believe that they have the right to order a judge on how he or she should rule on a case. Judges do not have the tools to defend themselves against such intrusions since justice has been subordinated to the other powers of the state
Shortly after the 1996 Peace Accords, a new Judicial Career Law was passed to promote judicial independence. But politicians found a way to keep their influence in the judicial system. The Judicial Career law applies only to the appointment of trial judges. For judges in the upper courts (known as magistrates), an electoral committee sends a list of candidates to Congress, and it is the Congress that elects judges from this list—but only for five-year terms. Magistrates’ terms can be renewed, but only if Congress chooses to renew them; often, it doesn’t. The goal of this appointment system was to enable corrupt politicians to maintain their control of the courts to ensure their impunity. Powerful politicians can promise sitting magistrates renewal of their terms if they vote the “right” way, and threaten them with non-renewal otherwise.
That was exactly what happened to me near the end of September 2014, when a new cycle of the magistrate election process was in motion, and I was up for re-election to the Court of Appeals. Also at that time, the political party in power—Partido Patriota—was in serious trouble. The party had been suspended by the Electoral Committee for conducting campaign activities prior to the legal start date for political campaigns. Furthermore, the party had come under scrutiny for having Vice President Roxana Baldetti as their legal representative, which presented a glaring conflict of interest. One Saturday afternoon, Vernon Gonzalez, a lawyer who had been my classmate, sent me a text message saying that he urgently needed to talk to me about the election of judges to the higher courts. I had some concerns about this message, but I wanted to know what he had to say, so I agreed to meet with him. Then he told me that his good friend Congressman Rivera was also going to go to the meeting. Rivera was considered to be at the right hand of President Perez Molina.
As a judge, being invited to a meeting with a Congressman, especially at this sensitive time, was a red flag. Considering that the election of judges was to take place the following Tuesday, and that Gonzalez said that he needed to speak to me urgently, I decided to secretly record the conversation. During the meeting I found out that Gonzalez was the attorney of Vice President Roxana Baldetti. Gonzalez had submitted a legal claim known as “Amparo” to the Appeals Court where I had been serving alongside two other judges. In the claim, he requested a judicial resolution to override the suspension of Partido Patriota. In exchange for granting this resolution, they offered to guarantee my re-election to the Court of Appeals. Congressman Rivera blatantly told me that the election of judges does not depend on knowledge, capacity, or experience. “Your resume does not count,” he said. “All that matters is who your contacts are in Congress and what you are willing to do for them. You do not need to worry about your election as a judge – we can help.” Of course receiving this “help” required me to rule in favor of Partido Patriota and Vice President Baldetti.
This was something that I was unwilling to do. I ended up opposing the resolution put forth by the other two judges to favor the ruling party, but—to my surprise—I was nonetheless re-elected as a magistrate for the Court of Appeals. Perhaps Rivera and his Partido Patriota colleagues didn´t want me to talk about the pressure that we all received, and since they got the outcome they wanted anyway, it wasn’t worth punishing me for refusing to go along. But since I was convinced that the whole process was a fraud, I called a press conference and I publicly resigned my post and denounced all the flaws in the election process, including interference from other branches of the government and violations of judicial independence. At the same time, I filed a complaint to CICIG against González and Rivera, alleging charges of influence peddling and bribery. Along with the complaint, I submitted the recording of the conversation I had with Gonzalez and Rivera.
Thus, the convictions and sentences of Gonzalez and Rivera are a personal vindication. But they are much more than that. The case is an important precedent in a country that is struggling to build a true rule of law. The case put a spotlight on the way the judges for higher courts are selected, how organized crime controlled the electoral committee that sends the final list of judges to the Congress, how Congress abuses its role in the election process to pressure judges. The publicity generated by this case has caused triggered a push to reform the judicial selection system, which is still being debated in Congress.
The fact that two powerful individuals have been prosecuted is not a personal achievement. On the contrary, it has been possible thanks to public officials who have fulfilled their work in an efficient and professional manner. This victory of justice is due to the prosecutors of the Public Prosecutor’s Office supported by the CICIG team, as well as to members of the judiciary who at various stages of the trial were issuing coherent and law-abiding resolutions. Guatemala needs more capable and diligent people willing to work to strengthen justice. It also needs a constitutional reform that will allow more independence to the judiciary and the guarantee that the citizens will have impartial tribunals. Hopefully this will be the year that Guatemalans will start to rewrite their history and establish the fundamental norms for a true democratic republic.
Thank you, Judge Escobar, for sharing this experience. It gives me hope for Mexico, where “amparos” are also abused, the judiciary is far from independent, and something like the CICIG is sorely needed.
My pleasure. I hope that Mexico and other countries that are trying to fight against corruption can one day, get ride of it. Of course the help of an international body like CICIG can help, but also the citizens have to demand more independence in the judiciary.
Thank you, Judge Escobar. Your courage and commitment to doing the right thing is an inspiration for us all. I’m curious how likely you think it is that the Congress will enact genuine reforms in this area. Given the vested interest members of Congress have in maintaining the status quo, isn’t it more likely that they’ll only make surface-level concessions that appease the public but don’t bring about true change and greater transparency? What sorts of changes are currently being discussed and how realistic is it that any of them will be implemented?
Dear Sarah it is difficult to predict what the Congress will do with the judicial reform that is been discuss this days in Guatemala. I believe it is very important that the citizens get involve and true different civic associations or organizations demand a real change in the Constitution. The main topics are: More stability for the judges, appointment in all levels of the judiciary, separation of functions of the Supreme Court so they will only focus on judicial issues and not administrative ones, this requieres the creation of a new body call Consejo Nacional de Justicia, which will take care of all the administrative aspects in the Judiciary.
Thanks for your comments.
Thank you for the post Judge Escobar. A truly remarkable story, and I admire your integrity. I think the problems you note with selecting the judiciary extend beyond Guatemala and are issues facing judicial problems globally. I will be sure to follow how the Guatemalan Congress decides to act, as a potential example for other countries to follow.
I am glad to read you, it will be interesting that you can tell them about the second case about influence peddling just revelated by Judge Ruano against the Supreme Curt Magistrate Blanca Stalling as a domino effect of you great precedent, in which CICIG is having a protagonic role too, definitely is not a cause of national pride, but at least we are having some considerable advances in corruption confrontation.
As you just say it, with the help of CICIG Guatemala is trying to change it´s history. It is important to fight for judicial independence as an important tool in the fight against corruption.
The case against the Supreme Court judge, Blanca Stalin is just starting, so we need to wait to see what the results are, but there are some resemblance to the case I wrote about. Judge Carlos Ruano also recorder the conversation, and later presented to CICIG. in this case the son of the Magistrate was facing a trial for corruption related issues, now the Magistrate Stalin is facing a trial for influence pending.
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Thank you Judge Escobar not only for sharing your story but also for standing up for what you believe in. I was wondering if you could comment on whistleblower protection policy in Guatemala and whether there is room for improvement as to encourage others to come forward with complaints.