Let's be clear, the election of courts should have concluded on October 13, 2019. However, we are almost a year behind schedule and new magistrates have still not been elected. This entire process has been prolonged and suspended on several occasions; three times in 2019 and once in 2020.
Here we explain what has happened in the process of electing magistrates for the Supreme Court of Justice and the Court of Appeals.
The court election in 2019
From the beginning, the process was navigated through "amparos" (constitutional challenges). The first was filed by the Foundation for Relatives and Friends against Crime and Kidnapping (FADS) against the Congress of the Republic. This was because Congress issued a call in February 2019, eight months in advance, for the integration of the nominating committees. The Law on Nominating Committees indicates that Congress must call for the integration of committees four months before the constitutional term of the magistrates ends. As a consequence of that "premature" call, the Constitutional Court (CC) granted the "amparo" and Congress issued a new call in June, 4 months later.
In June and July, the committees were integrated. The election of the presidents of each committee took place on June 13. The election of the representatives of magistrates of Appeals Chambers took place on June 27. And the election of the representatives of the Bar Association of Guatemala (CANG) at the end of July. That same month, magistrate Noé Ventura Loyo filed an "amparo" challenging the election of the Appeals Chambers representatives. The reason was the lack of publicity in the call and because the representatives were not chosen by the method of minority representation as established by law. Only one slate was presented.
Nominating committees
However, on August 13, the green light was given for the nominating committees to begin their work. From August 19 to September 16, both committees met. They approved the work schedule, the requirements for applicants, profile, and grading table. They heard challenges against applicants and evaluated the received files to finally vote for the final list.
Read about the proposed ideal profile for magistrates that we presented to the committees.
Despite the round-the-clock work carried out by the nominating committees, there were two "amparos" filed that threatened to suspend the process. One "amparo" from magistrate Ventura Loyo, since "he was aggrieved because the election was held without publicity, without a call, and without reviewing the qualifications of those elected." As well as the "amparo" filed by the Myrna Mack Foundation on August 28. This was based on the argument that the nominating committees had not requested the list of evaluated career judges from the Judicial Career Council (CCJ) (the Council had not conducted those evaluations).
It was on September 16, when the Appeals Court nominating committee was finishing qualifying the files of the nominees, that the CC ruled and granted the "amparo" to magistrate Ventura Loyo and the Myrna Mack Foundation. As a consequence, the elections of representatives of appeals chambers magistrates had to be repeated. At the same time, the CCJ had to approve a regulation to evaluate judges and magistrates who wished to aspire to a magistracy. The Supreme Court of Justice nominating committee had to almost go back to the beginning after electing new appeals chambers magistrate commissioners. Meanwhile, the Appeals nominating committee had to await the results of the Council's evaluations.
October 13 arrived, and the constitutional deadline for the renewal of the courts was not met.
The process was paralyzed until December 2. On that day, the CC established a roadmap in resolution 6528-2019. This applied to both the CCJ evaluation process and the nominating committees. It ruled that the Judicial Career Council had to publish a regulation and the instruments for evaluating professionals. Within 30 days, it had to carry out the evaluations, according to the CC's order, and send them to the committees. These would have 20 days to continue working and prepare the final list to be sent to Congress.
The evaluations
At the end of the year, the CCJ carried out the evaluations of judges and magistrates. On December 30, the Council indicated that it had notified 100% of the applicants about their scores.
More than 300 judges were evaluated. Of these, 0.89% obtained a score of 100, 55.15% between 80-90 points, 32.6% between 90-99 points, 10.47% between 70-79 points, and 0.89% obtained less than 70 points.
The court election in 2020
After the Judicial Career Council evaluated the judges who showed interest in becoming magistrates, the work of the nominating committees continued. To include these evaluations, the grading tables were modified in both committees.
Four months after the new Magistrates should have taken office, the final stretch was reached. The vote for the applicants who would make up the final lists took place in February 2020.
Parallel Commissions 2020
On February 14, the Appeals nominating committee integrated the final list to be sent to Congress. However, on February 18, while the Supreme Court of Justice nominating committee was voting on the final list, the Special Prosecutor's Office Against Impunity (FECI) made public a new case in which Gustavo Alejos was being investigated for his alleged control as a political operator over the nominating committees. They found that Alejos was violating his conditions as a detainee and that he received visits from deputies, judges, magistrates, lawyers, and even commissioners from February 12 to 16. Of the candidates on the final lists; 19.23% of the CSJ's final list and 5.56% of the CA's final list were mentioned in the case's press conferences.
This case, called Parallel Commissions 2020, jeopardized the election of new magistrates. Even so, the final lists were delivered to the legislature. In response, the Public Ministry (MP) filed an "amparo" against Congress for "a real and imminent threat to the court election process in the country." As a result, the CC granted the "amparo" to the MP and the election of magistrates was suspended.
What did the Constitutional Court ruling state?
With almost 7 months of delay in the swearing-in of new magistrates, on May 6, the Constitutional Court definitively granted the "amparo" to the Public Ministry. The Court's ruling indicated:
Also, that deputies must vote aloud whether or not candidates meet the requirements of honorability, and exclude from the election process professionals whose suitability and honorability have been compromised by what was denounced in the MP's amparo.
The MP delivered the report requested by the CC to Congress on May 28. This report contained the lists of candidates for magistrates of the Supreme Court of Justice and the Court of Appeals, information on the FECI's criminal investigation (Parallel Commissions Case), a list of Alejos' visits, a list of those who had telephone contact with him, an analysis of the conflict of interest of those who had contact with Alejos, as well as the ongoing criminal proceedings and/or investigations against the nominees.
The election of courts in Congress
On June 23, the plenary session was held to begin the election of courts. After a long discussion, Legislative Agreement 14-2020 on the method of electing magistrates was approved. It was agreed that deputies would be called in alphabetical order to cast their votes aloud and state the reasons why they consider each candidate to meet or not meet the legal requirements and the reasons why the candidate is honorable or not. However, this was the only thing Congress has addressed regarding the court election, as it has been scheduled in 10 sessions but as the last item, so the election has not yet begun. Eleven weeks have passed since the approval of Agreement 14-2020, and Congress has not started the election of magistrates.
While waiting for Congress to begin the election of magistrates, there was an interinstitutional confrontation between the CSJ, the CC, and Congress.
Now, in September 2020, the process of electing one of the branches of government remains stalled. The election of courts is in the hands of Congress, despite the fact that it would take approximately three years due to the method established by the CC in its resolution.