Guest Post: Adverse Selection – Civil Society Support for Honest Judges and Prosecutors in Guatemala, Honduras, and El Salvador

Corruption in Guatemala, Honduras, and El Salvador continues unabated. Proof can be found at the U.S.-Mexican border. Guatemalans, Hondurans, and Salvadorians remain willing to risk the treacherous journey to the border and the uncertainties of a U.S. asylum application to escape corruption’s daily hardships.

Critical to taming that corruption, and the flow of refugees it produces, are honest, courageous prosecutors and judges willing to pursue corruption cases no matter who is implicated. In all three countries, a new generation of professionals is coming forward to take on this challenge, but corrupt elites are at work blocking their appointment.  Fortunately, civil society organizations across the region are engaged in countering these efforts, pushing their governments and citizens to see that honourable men and women take the bench or join the public prosecutor’s office and that those who aren’t don’t.

In this guest post, Kristen Sample reviews what civil society in the three nations has accomplished, what more it can do, and how the international community can help.  Now Governance Director at the National Democratic Institute, Kristen has worked on political integrity and civil society strengthening programs in Guatemala, Peru, and Bolivia for more than 15 years. The research behind the post was conducted for Open Society Foundations and the Washington Office on Latin America with support from the National Democratic Institute and the Due Process of Law Foundation.

On January 26, Mynor Moto was elected by the Guatemalan Congress to fill a vacancy on the Constitutional Court despite being under investigation by an elite unit in the public prosecutor’s office.  Civil society was emphatic in its criticism of Moto and the selection process. The new U.S. Administration weighed in as well, asserting that Moto’s presence on the court “threatens the rule of law…and debilitates the integrity of the court.” 

Moto’s swearing in was blocked and is now on hold indefinitely thanks to a February 1 arrest warrant prosecutors issued. He has chosen to flee rather than contest the charges.

The gravity of the charges and the failings of the selection process make Moto’s case shocking, but it is far from unique. The independence and integrity of judges and prosecutors is a longstanding challenge in Guatemala and the region. In a global ranking of judicial independence, 15 of 20 Latin American and Caribbean countries were rated “below average.” 

The quality of rule of law is dependent, in large part, on the capacity and integrity of the judicial operators themselves.  When made up of individuals of high moral standing, courts and public prosecutors are better able to resist political pressures and private interests.  Similarly, when the selection processes are perceived as transparent and meritocratic, qualified and high-integrity candidates are more likely to participate.

Globally, there is a broad spectrum of systems in place for the selection of these high-level positions. Options include minimal regulation (such as simple executive appointment), popular election, and detailed procedures for screening and selection by a nominating committee.  In northern Central America (Honduras, El Salvador and Guatemala), where judicial and prosecutor independence is seen as a linchpin in the fight against corruption, constitutional provisions or legislative reforms have sought to depoliticize rule of law institutions by placing the nominating process in the hands of ostensibly non-political actors, at least in part.

Though well-intentioned, these reforms have been largely subverted by powerful interest groups, as documented by in-depth investigative reporting and court cases.  Influencing the selection of judges and prosecutors is seen as an “investment” that pays out in terms of impunity and lucrative procurement contracts, and corrupt actors have found ways to manipulate the integrity safeguards that were built into the selection processes.  As explained by one Central American former prosecutor, “Whereas previously, the election of an attorney general wasn’t seen as important; today, some prosecutors have achieved superstar status and powerful interest groups care more about their election than the presidential election.”

Civil society played a key role in promoting many of the legal reforms that underpin the selection processes, and they have also worked to promote integrity in their implementation.  Research on 10 years of civil society activities related to judicial and prosecutor selection processes revealed a wide range of engagement, including advocacy for reform, process monitoring, public awareness campaigns, investigation of candidates, and strategic litigation.

To what extent have civil society efforts enhanced transparency and accountability in the selection processes? Activists consulted for this research were quick to identify numerous instances in which selection processes fell short of integrity standards.  Despite these setbacks, there is also a sense that the courts and public ministries would be in worse hands without their efforts.  Civil society engagement has served to raise the level of public, media and international interest, document irregularities, and build their own investigative, advocacy and coordination capacity.  There are indications that attention may have served to dissuade some corrupt candidates from seeking appointment or put successful applicants on notice that their performance on the court or as attorney general will be under scrutiny. 

Given the selection processes slated for the coming months– particularly for Supreme Court magistrates in Guatemala and El Salvador and the attorney general in El Salvador– what do we know in terms of the factors that matter for the integrity of judicial and prosecutor selection?

Continuity.  Civil society engagement on judicial and prosecutor selection processes is ad hoc and often delayed.  To the extent that donors provide support, it is limited to a single election process and may kick in just a few months, or even weeks, before the election, which forces civil society to operate in a reactive mode that hinders coalition building, public outreach, investigations and legal strategies.  Multi-year support would allow for sustained efforts, including on legal reform advocacy, which is best handled in non-election periods.

Diplomatic support.  The absence of functioning institutional channels means that civil society must rely on international pressure.   At times, civil society has been effective in advocating with the US Embassy and other allies in the diplomatic community to oppose unscrupulous candidates seen as counter-productive to US and international security interests.  This strategy is far from fool-proof, however; diplomatic support is inconstant and international support also brings risks, including dependency, concerns regarding national sovereignty, and reduced legitimacy.

Coalition-building. Corrupt interest groups have superior financial, political and media resources.  In response, civil society must capitalize on its only real advantage – numbers—by building and activating cross-cutting coalitions that incorporate popular movements and ordinary citizens.  Traditionally, the power of civic activism is limited by fractures along ideological, geographic or socio-economic lines.  Overcoming these divides requires commitment to build ‘big tent’ coalitions, including with organizations across political lines and, even more importantly, to invest in urban-rural alliances through outreach, listening to and trust building with social movements based in secondary cities and rural areas. 

Investigative journalism. Experience around the world has demonstrated that the effectiveness of civil society anti-corruption efforts is highly dependent on a context of press freedom.  In-depth reporting by investigative journalists in the subregion has shed light on linkages between illicit networks and candidates for judicial and prosecutor posts at the highest levels.  Additionally, the press plays a vital role as an ‘infomediary’ that translates and communicates information generated by civil society to the general public.

Communications strategies.  Activating broad-based public support depends on the extent to which citizens see clear connections between the selection processes and their own economic and social realities.  Since monitoring reports and strategic litigation involve complex legal concepts, civil society must make an extra effort to develop formats that are accessible and meaningful to the general public.  Communications strategies should be grounded in data collection- such as public opinion research and focus groups—and be two-way and iterative, such that citizens are actively engaged through community meetings or town halls.

Countering disinformation.  In these high stakes processes, the struggle to control the narrative is fierce.  The communications playbook used by corrupt interest groups includes reliance on ‘friendly’ mainstream media outlets as well as the development of coordinated disinformation campaigns in mainstream and social media.  Civil society groups have been portrayed as elitist, corrupt or controlled by foreign interests.  The need for pre-emptive strategies to counter disinformation underscores the importance of continuity of efforts to permit sustained monitoring and shaping of the information environment.

Open justice. Though ‘open government’ initiatives have been adopted around the world, the judicial sphere lags behind other sectors.  The lack of publicly available information is a clear impediment to civil society investigative efforts, for instance, to review prior rulings of judicial candidates.  The development of a systematic and comprehensive database – informed by and shared among the key civil society activist groups- would allow for ongoing analysis of the conduct of justice system actors and expedite investigations in future processes. 

Standards. Civil society organizations have grounded their efforts in international principles and engaged UN and Inter-American human rights bodies through advocacy and public hearings. In an attempt to pressure decision makers to adhere to objective criteria, CSOs have also established parallel independent juries that rate and rank candidates according to these international standards.  Thus far, these efforts have been ad hoc.  Adapting a common set of objective criteria across election processes and linking it to a broader national conversation on the meaning of concepts such as ‘merit,’ ‘integrity’ and ‘honorableness’ as it applies to these positions could increase the impact of these benchmarking processes. 

Observation. The level and quality of civil society monitoring of these selection processes has varied considerably over the last 10  years.  In some contexts, civil society is forced to expend significant energy negotiating rights and terms of the observation with the nominating committees or legislature.  While there are critical differences between domestic observation of national (direct) elections and the observation of selection processes for judicial/prosecutor authorities, the latter could benefit from lessons learned over more than 30 years of election observation, including early battles to assert the right of citizens to observe their elections, the development of regional and global networks, the adoption of observation principles and the sharing of monitoring methodologies. 

In the face of a continued assault on the independence of the judiciary, civil society groups play a key role, and employ a variety of best practices, to support the integrity of the process.  Given the stakes in play and the powerful interest groups intent on subverting the process, in the months ahead, they will need to marshall all of the tools developed, and quite possibly more.

3 thoughts on “Guest Post: Adverse Selection – Civil Society Support for Honest Judges and Prosecutors in Guatemala, Honduras, and El Salvador

  1. Thank you for this excellent contribution. This problem of what we in Mexico call “captured” anticorruption institutions and processes is endemic and extremely difficult to overcome, since -as pointed out in the article- corrupt actors have many more resources and a much greater ability to identify and exploit weak points in selection processes. The list of factors that matter to bolster the integrity of these processes is particularly helpful and should be developed into formal recommendations by local and international anticorruption NGOs and institutions.

  2. Another major issue is support for those courageous judges and prosecutors who try to uphold the rule of law. In just the most recent example, Guatemalan Constitutional Court judge Gloria Porras was forced to flee the country after the Congress declined to ratify her selection to the Court, leaving her exposed to dozens of frivolous criminal accusations with no immunity. Other judges, as well as anti-corruption prosecutors, have been harrassed and falsely accused of all sorts of things. Without major international backing, these judges and prosecutors will become an endangered species.

  3. Pingback: Selección adversa: el apoyo de la sociedad civil para la elección de jueces y fiscales honestos en Guatemala, Honduras y El Salvador* – Justicia en las Américas

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