At the beginning of 2019, many of us believed that once the year was over, we would know who our next president would be, who our next deputies would be, and who would administer the judiciary. We knew that the three branches of the State would be renewed this year and the importance of it. For now, we do know that our president-elect is Alejandro Giammattei and who the 160 deputies for the 2020-2024 Congress are. However, given recent events, we no longer have the certainty of knowing who will be in charge of Guatemalan justice for the next 5 years. What has happened in recent months with the nominating commissions and why has their work been suspended, leaving us with the uncertainty of who will be the next magistrates of the Supreme Court of Justice and Court of Appeals?

The process

The nominating commissions began with constitutional appeals from the very beginning. The first was filed by the organization Relatives and Friends Against Delinquency and Kidnapping (FADS) due to the premature call by Congress to form the Nominating Commissions for the election of magistrates of the Supreme Court of Justice (CSJ) and Court of Appeals (CA). By June 5, Congress had reissued the call to form the commissions, complying with the 3-month advance notice period established by law.

June and July

Between June and July, elections were held for the various groups of commissioners. First, the presidents of each commission were elected. Félix Serrano was elected as president of the CSJ nominating commission and Murphy Paiz for the CA commission. Then came the election of representatives of the Court of Appeals for the CSJ Nominating Commission. Irregularities were noted because there was only one slate of candidates, and the election should have been by the method of minority representation, which requires more than one slate. For this reason, magistrate Noé Ventura Loyo filed a constitutional appeal in July. That same month, elections were held for representatives of the Bar Association (CANG) for both commissions.

August

On August 13, the Congress of the Republic gave the initial signal for the work of the Nominating Commissions to begin by swearing in their members. Very efficiently, the following Monday they began their work to define which days each commission would meet, schedules, and a timeline.

From August 19 to September 16, both commissions met almost daily. Working long hours (the longest being almost 16 hours) and most making sacrifices to fulfill the very important task entrusted to the commissioners. The instruments for evaluating candidates were approved: profile, grading table, and the reception of dossiers proceeded without any hindrance. The constitutional appeal by Ventura Loyo had not yet been resolved. By August 28, the Myrna Mack Foundation filed a constitutional appeal because the commissions did not fully request that the Judicial Career Council send the dossiers and evaluations of career judges. This was to comply with the provisions of the Judicial Career Law.

September

September arrived, and the commissions continued their work, evaluating compliance with requirements and applying the grading table to the dossiers of aspiring magistrates.

The same night the CA Nominating Commission finished grading the dossiers they had, the Constitutional Court (CC) ruled and upheld the appeal of magistrate Noé Ventura Loyo and the Myrna Mack Foundation.

Because of that ruling, the CSJ Commission had to go back to the beginning as the elections of the 12 representatives of the Appeals chambers had to be repeated. The Judicial Career Council had to evaluate the judges and magistrates who wished to become magistrates and send their evaluations to the commissions, which meant the CA Commission had to return to this point. This shows that the Constitutional Court acted when it was already known which candidates had been excluded and the scores from the grading table of those who had reached the final stages of the process.

Should these constitutional appeals have been resolved earlier?

Actors, Timelines, and Objectives

Three variables of this process must be highlighted: the actors, the timelines, and the objectives. The constitutional appeals filed and the resolutions have placed the Constitutional Court as one more actor in the process of electing magistrates; incidentally, it should not be an actor in this process, but it has become a very important one. The CC's decision changed the landscape when there was only one week left for the commissions to send the final lists to Congress. Therefore, the timelines are questionable. If the appeal that sent the CSJ Nominating Commission back to the beginning was filed in July, why did the CC rule almost two months later?

The new scenarios (September and October)

This resulted in a mixture of scenarios and objectives:

1. Another opportunity for more lawyers and judges to run or a second chance to correct errors for those whose dossiers were excluded.
2. That the work of both commissions be paralyzed and therefore that the lists not be ready for presentation before the constitutional deadline.
3. That it will be the next legislature, with a majority party, that will elect the magistrates of the Supreme Court of Justice and the Court of Appeals.

Both scenarios can serve to fulfill particular interests that harm the path towards clean justice.

It was impossible to have new magistrates in the Supreme Court of Justice and the Appeals Chambers by October 13. Therefore, the current magistrates would be extending the period for which they were appointed if they continue after that date. Should they resign, consult the CC again, or do nothing? If this were to happen in either of the other two branches of government, there would be more concern. However, it seems that public opinion and the Constitutional Court itself (which must ensure the division of powers and the periodicity of terms as stated in the Constitution) are not so concerned. Failure to comply with an essential principle such as periodicity and rotation of positions should not be taken lightly, because it paralyzes justice in the Republic. If basic republican principles continue to be violated, even those that protect our rights and freedoms could be violated.

UPDATE ON THE NOMINATING COMMISSIONS PROCESS

Two of the three scenarios mentioned previously have been fulfilled.

The nominating commissions halted their work and the constitutional deadline to renew the courts was not met. The magistrates of the Supreme Court of Justice and the Court of Appeals were supposed to take office on October 13. This responds to one of the basic principles in a republic: the alternation in power and the periodicity of terms.

What happened in October, after the provisional injunction from the CC?

Regarding the Ventura Loyo injunction, the CC's resolution nullified the election of representatives of the magistrates of the Court of Appeals who were part of the Supreme Court of Justice nominating commission. To resolve this, elections were held to choose new members.

On October 7, three slates were registered, and the 12 representatives of the Chambers for the CSJ nominating commission were chosen. In the end, 8 of the 12 representatives were re-elected. There was only a 33% change in representatives. Those seeking re-election were in the top positions and managed to be re-appointed as commissioners.

This rendered the provisional injunction ineffective, resolving the violation of a right protected by the CC.

The second injunction pending resolution by the CC, from the Myrna Mack Foundation, has prevented the judicial system from being renewed as soon as possible. The Foundation argued that, because the nominating commissions did not request evaluations of judges and magistrates from the Judicial Career Council, the Judicial Career Law was violated.

However, without a regulation for the Judicial Career Law, the Council has not carried out these evaluations.

What did the nominating commissions do?

Since September 16, the nominating commissions have complied with the Constitutional Court's ruling. They held a few sessions and heard proposals for a timeline to deliver evaluations from the Judicial Career Council. Unable to advance further, both commissions suspended their activities.

However, there is a possibility that they may resume their work and conclude with a list to elect magistrates of the Supreme Court of Justice and the Court of Appeals.

November

On November 15, the Fourteenth Civil Court of First Instance denied the constitutional appeal promoted by the Myrna Mack Foundation. The court stated that the election of magistrates of the Supreme Court of Justice and Court of Appeals must continue in accordance with Article 207 of the Constitution, as well as the requirements of the Nominating Commissions Law. Furthermore, it urged the Judicial Career Council to submit a new draft regulation of the Judicial Career to the Supreme Court of Justice.

In response, the Myrna Mack Foundation filed an appeal against the 14th Court before the Constitutional Court. It also outlined a roadmap for the Judicial Career Council to complete the evaluation of judges within a three-month period.

On November 19, the CC processed the appeal filed by the Myrna Mack Foundation.

Now the future of justice is once again in the hands of the magistrates of the Constitutional Court. They must demonstrate their responsibility to resolve objectively and independently, not to show favoritism, and to ensure that the commission process continues to have new magistrates.

December

The last month of 2019 became key to understanding the future of the judiciary. On December 2, the Constitutional Court ruled in favor of the Myrna Mack Foundation. With this, resolution 6528-2019 established a roadmap for the evaluation process of the Judicial Career Council and the nominating commissions.

So what happens now?

The Judicial Career Council must publish the regulations and certify the instruments to evaluate those who expressed interest in participating in the selection process for magistrates. However, the CC's resolution does not include the Supreme Court of Justice validating the Judicial Career Council's regulations, as had been attempted in recent months.

On the other hand, the time limits for the new route (which is not stipulated in any law or the constitution) are not entirely clear. However, the Council has 30 calendar days to carry out the evaluations. As for the commissions, they have 20 days, from the reception of the lists and evaluations from the Council, to work and then send the final lists to the Congress of the Republic. This indicates that by the end of January, the new legislature will have in its hands the decision to elect new magistrates.

Will this truly be the last modification to this exhausted process?