Guatemala is in the process of selecting its next attorney general to serve a four-year term: May 2018-May 2022. Because the process and result could have tremendous implications for grave crimes trials and the rule of law in Guatemala, the International Justice Monitor will be providing regular situation reports. Today, we provide an explanation of the process itself.

Legal Framework

Guatemala’s constitution established Nominating Commissions (Comisiónes de Postulación) in order to guard against the politicization of judicial appointments to the Supreme Court of Justice, Courts of Appeal, and other collegiate tribunals. The commissions are also intended to protect against politicization of the appointment of the attorney general or any other public positions relevant to the consolidation of the rule of law and democracy. The constitution has mandated that the Nominating Commissions include academics and the national bar association to serve in a merit-based and transparent process. This appeared to be a promising approach to encouraging a strong and independent justice system. Guatemala’s Congress passed a law in 1999 to define the Nominating Commissions in detail.

The Nominating Commission’s main responsibility is to prepare a shortlist of six finalist candidates from which the president of Guatemala will appoint an attorney general. More specifically, over a minimum period of four months, the commission must perform the following tasks in a transparent and public way:

• Making a public call for applications to the post;
• Determining the desired candidate profile (beyond minimum statutory requirements), taking into account ethical, academic, and professional background, as well as “human projection;”
• Developing grading criteria for applications;
• Analyzing materials produced by the applicants and conducting public interviews with the best qualified; and
• Submitting its list of six finalists to the president at least 20 days before the May 14 deadline for appointment.

The Nominating Commission is composed of:

• The President of the Supreme Court of Justice, who serves as the chair;
• The President of the Bar Association and Notaries of Guatemala;
• The President of the Court of Honor of the Bar Association and Notaries of Guatemala; and
• The 12 Deans of the Faculties of Law and Legal Sciences of Guatemala universities.

A System That Can Be Rigged

On paper, this system appears to be a sound way to narrow the field of applicants based on merit. However, there are indications of extensive political influence on past and current Nominating Commissions, for attorney general and judicial appointments.

The clearest way to affect the commissions’ decisions is to influence its membership. In October 2017, the Supreme Court of Justice elected José Antonio Pineda Barales as its new president for a one-year term, placing him in the position of chair of the current Nominating Commission. In November, Attorney General Thelma Aldana and the International Commission Against Impunity in Guatemala (CICIG) announced an investigation into the selection of several Supreme Court justices, including Pineda Barales, because they may have resulted from improper influence by a prominent businessperson. In the past, CICIG has linked this person—Roberto López Villatoro, a.k.a. the “Tennis Shoe King”—to the alleged manipulation of nominating commissions.

Nómada reported earlier this month that political jockeying in the bar association began a year ago during its election of a president and president of its honor tribunal: with the winners to occupy the bar association’s two ex-oficio seats on the Nominating Commission. Two men prevailed: one, Luis Fernando Ruiz, with links to former President Otto Pérez Molina (currently on trial for corruption) and the other, Julio Dougherty, with strong links to wartime President Efraín Ríos Montt (currently being retried on charges of genocide).

At the time Guatemala devised its system of nominating commissions, there were four law schools in the country. Today there are 12, each sending its dean to sit on the commissions. Reports indicate that some of the recently established schools were set up with the involvement of López Villatoro and have demonstrated little academic activity. This has led to a strong suspicion by CICIG and others that these schools were established with the main, if not sole, purpose of gaming the judicial nominating commissions.

If at least some of the 15 members of the nominating commission are selected with an intent to advance certain candidates or block others, the law’s remaining guidance may be of little use. The components of candidates’ desired background and grading criteria are subjective enough to allow manipulation, even if the commission rigorously applies the formalities of its evaluation process. Such manipulation was apparent in 2014, when the Nominating Commission excluded former Attorney General Claudia Paz y Paz from the shortlist sent to the president. It excluded her even though she scored second among 26 candidates on merits that are more objective. In the intervening period, there have been no amendments to the law to prevent similar manipulation from happening again.