Guatemala's Prosecutor General, Claudia Paz y Paz, will leave office seven months early over a technicality, despite extraordinary strides she has made in penetrating corruption and prosecuting the country's most serious human rights offenses.
The mandate for Paz y Paz to vacate her post in May 2014 rather than December 2014 comes after a prominent lawyer and others petitioned Guatemala's Constitutional Court to examine the length of her term against transient constitutional articles that when applied would consider Paz y Paz’ term a fill-in assignment rather than a full 4-year appointment. Paz y Paz replaced Arnulfo Conrado Reyes in 2010 after he was forced out on corruption charges seven months into the job.
On February 5, the court granted as valid the application of the constitutional articles cited, and ruled that Paz y Paz's term ends in May. "Circumstances make it advisable to grant the interim relief requested, and [with] the positive effects of constitutional protection now granted, Congress should immediately, from the moment notified, hold a meeting, continuously and without interruption, in order to issue the call for the formation of the Nominating Committee," the court wrote in a statement.
On February 9, Paz y Paz filed a recall petition on the decision, asking for clarification and suggesting that the constitutional articles in question are no longer valid. The court rejected the request, saying there is nothing ambiguous about the ruling. Paz y Paz then filed for a hearing to present her argument, and on February 26, Paz y Paz was heard by the court, along with Ricardo Morales Sagastume, the lawyer and one-time presidential candidate who brought the inquiry on Paz y Paz' term, who repeated his argument that Guatemala's law is clear about the term of service for a prosecutor general who replaces another.
Paz y Paz countered that she was not hired as a replacement, but appointed to the prosecutor general position, and that a prosecutor general appointment carries with it a four-year term. "What is at stake here is not whether I continue in office for seven [more] months," she told the court. "It is not my term as a person; it is a constitutional term. What is at stake here is the validity of the constitution, the rule of law, democracy in Guatemala." Paz y Paz also addressed the transient constitutional articles used to grant Sagastume's petition, saying they are temporary and that once used are no longer valid. "Transient items are intended to regulate an event at a specific time. Once they accomplish the purpose for which the transitional provisions were enacted, they become void."
But on March 7, the Constitutional Court confirmed its ruling that Paz y Paz's term ends on May 17. Hours after the court's announcement, Paz y Paz added her name to the list of 29 others who had registered their candidacy with the Nominating Committee.
"We don't agree with the decision of the Constitutional Court but we have to respect it," Paz y Paz said in a phone interview with Truthout. "The constitution clearly establishes that the period was for four years. So if [the term] starts in December it should end in December. It is not something that has to do with me being here, but it has to do with the respect of the constitution and of the rule of law."
The resolution on Paz y Paz' term adds to other rulings made by the Constitutional Court that have raised questions about its independence. In theory, Guatemala's Constitutional Court rules on disputes that involve the country's constitution. But in recent years, it has become a pivot point in Guatemala's strained effort to uphold a rule of law - often arbitrating matters outside its jurisdiction and at critical junctures in impunity cases, and often favoring entrenched power in its rulings.
"The background of these [Constitutional Court members] is of having links and favors to military, economic and political sectors," said Helen Mack, a prominent human rights activist in Guatemala. In a statement on her foundation's website, Mack called the Court's decision "further evidence of the crude twisting of the law."
Jo-Marie Burt, a senior fellow at the Washington Office on Latin America, one of five international organizations that traveled to Guatemala to denounce the court's February 5 decision, called the ruling arbitrary. "There is no doubt that some forces find Paz y Paz to be an irritation and want to see her removed as quickly as possible."
In a 3-page, February 14 letter to Guatemala's President Otto Pérez Molina, José Miguel Vivanco, director of Human Rights Watch's Americas division, told the president that the court's ruling "has done serious damage to the credibility of Guatemala's justice system."
Former Guatemalan Constitutional Court judge Rodolfo Rohrmoser told a Guatemalan newspaper that the Constitutional Court violated its own law with the ruling. "Regrettably, the interpretation of the Constitutional Court of the proper constitution is incorrect, and internally it is firm [in its resolution]. I do not see why the judges would now change their criteria. They are taking seven months from the prosecutor general."
Guatemala's ability to provide a fair and functioning system of justice has been tested in recent years as the country has tried to reconcile its dark past and hold those responsible for atrocities to account. Much of this test has come in the court system and its ability to adjudicate crimes against humanity committed during the country's 36-year civil war - and here the Constitutional Court has shown a predisposition toward conservative sectors that have been protected from reproach.
Most notably, during and after the country's 2013 genocide trial of former de-facto president José Efraín Ríos Montt, the Constitutional Court made multiple contentious rulings, and in the end, vacated the trial court's guilty verdict along with the 80-year sentence against Ríos Montt and victim reparation programs ordered as part of the verdict, although constitutionality was not an issue in the bringing of the case, the trial, the verdict or the sentence. Citing procedural matters and despite overwhelming prosecution evidence, also without an appeal process to trigger a reversal, the high court stepped in to nullify the trial, invalidating testimony from more than a hundred survivor witnesses who had waited decades for their day in court.
Shortly after its overturn ruling, the Constitutional Court began hearings on whether a general amnesty decree shields Ríos Montt from prosecution - despite language in the law that explicitly excludes genocide from amnesty and despite an earlier lower court ruling that Ríos Montt is not exempt from genocide culpability - but has yet to issue a decision.
Toward the end of the trial, when a removed then reinstated pre-trial judge declared the trial illegal and ordered the case back to the evidence phase, the court was slow to respond and ambiguous about the validity of the judge's claim.
Even before the case went to trial, the court had made rulings that hindered Rios Montt’s prosecution. In 2006, after plaintiff groups brought their stalled genocide case against Ríos Montt and other war crime offenders before the Spanish National Court (SNC), which claims international jurisdiction in prosecuting crimes against people of Spanish origin and which had convicted former Chilean dictator Augusto Pinochet, the Guatemalan Constitutional Court ruled that the SNC is without jurisdiction in Guatemala and refused to cooperate with extraditing the defendants to Spain.
Susceptibility to Bias
Paz y Paz's term length was also challenged by the Colegio de Abogados y Notarios de Guatemala, a bar association made up of representatives from each law school in Guatemala, and one of five organizations that elect Constitutional Court members. In November 2013, it petitioned Guatemala's Congress to file an inquiry with the court, asking it to investigate the date when Paz y Paz leaves office.
Guatemala's Constitutional Court is composed of five judges elected for concurrent five-year terms. In addition to the judge elected by the Colegio de Abogados y Notarios de Guatemala, judges are elected one each by Congress, the Supreme Court and the Superior Council of the Universidad San Carlos de Guatemala. One member is appointed by the president.
Inherent in this arrangement, experts have said, is the propensity for judges to serve the interests of the body that elected them. In a 2012 report titled, "A Reflection On Transitional Justice In Guatemala 15 Years After The Peace Agreements," Raquel Aldana, a law professor at the University of the Pacific, wrote that the 5-year service period "makes the courts susceptible to political interests."
"The delegation of appointment powers to these outside entities has led to the politicization of those entities, so that the leadership of nominating entities is now subject to a fair amount of contestation by the dominant political parties," Daniel M. Brinks, codirector of the Rapoport Center for Human Rights and Justice at the University of Texas Austin, wrote in an email exchange. "It is entirely likely that individual justices will identify pretty closely with those who selected them. The situation is exacerbated because the magistrates serve short, renewable terms, so that if they wish to be reappointed they must remain in the good graces of those who named them."
The 14-member Nominating Committee convened to take in and qualify applicants for Guatemala's next prosecutor general will send six names to the president, who will then select one, subject to approval by the Guatemalan Congress. The selection process is expected to move rapidly, and Guatemalan democracy groups are urging transparency and diligence in the selection process and are calling on committee members to resist the influence of outside groups.
"There is a new law of nominating committees, and this law requires that the process is public and that should be a guaranty of transparency," Paz y Paz said. "It means that the arguments about the inclusion or exclusion of a [candidate’s] file, the interviews and the qualifications of the files should be done facing the citizenship."
On her chances of being chosen by the Nominating Committee as one of the six candidates, Paz y Paz said, "There is a gradation table. They have to examine my file with that gradation table, and I hope that mine and all the others candidates' files will be examined by merits."
Paz y Paz, who has won worldwide recognition for her progress on human rights and anti-impunity, was appointed prosecutor general in 2010 by previous president Álvaro Colon after his original prosecutor general was found to have connections to organized crime. By adopting a strategic working method, prioritizing cases, and rooting out people in her office with links to organized crime and Guatemala's powerful military, she has made significant gains in dismantling crime networks, exposing corruption and curbing lawlessness in the country's drug- and gang-infiltrated urban centers - which has necessarily meant offending both legitimate and illegitimate power in Guatemala. Her success has also been helped by reforms in Guatemala's system of justice, most notably its conversion from an inquisitorial model to an adversarial method of litigating disputes, its centralization of high-profile cases, and changes in the law that foster accountability. But the prosecutor general has also had detractors who have complained of a preoccupation with past crimes and allegiances with reform groups that influence her agenda.
Last November, the Constitutional Court announced that a retrial of Ríos Montt will begin in 2015, but there are several complicated legal obstacles involved, including difficulties convening a new panel of judges willing and competent to hear the case, and procedure questions surrounding the re-giving and re-hearing of witness testimony. Experts have said it is unlikely that Ríos Montt will ever be tried again.