“There is no liberty if the judiciary is not separated from the legislative and the executive.” -Montesquieu, The Spirit of the Laws (1752).

Why propose an ideal profile for candidates to join the Supreme Court of Justice and Courts of Appeals?

In the face of a generalized national disillusionment with political institutions, a palpable demand arises within Guatemalan society to rescue the values of a democratic republic. From the National Civic Movement, we work to contribute to the construction of social and community networks that emphasize the importance of the existence of the separation of powers of the State, equality before the Law, and the rule of law. As a citizen organization that advocates for the consolidation of the Republic in Guatemala, the National Civic Movement considers an independent judiciary, made up of capable and upright judges, essential to strengthen institutionality and the rule of law in the country. A step that is a necessary condition for clean and independent justice is the appointment of high magistrates within the Judiciary. That is why we are committed to promoting civil participation as observers and overseers in the judicial system renewal process this 2019.

The process of selecting magistrates for the Supreme Court of Justice and Courts of Appeals must adhere to the principles stipulated in the Law on Postulation Commissions, which embrace the virtue of republican principles. The principles of transparency and publicity of said article reflect the accountability and citizen accessibility necessary for the maintenance of a republic. On the other hand, the professional excellence required of the commissioners and especially of the candidates who apply, demonstrates the value of meritocracy and preparation to comply with what is constitutionally stipulated. Finally, objectivity in the candidate selection process reflects respect for the procedure and the absence of arbitrary decisions to favor or disfavor candidates without any basis.

It is expected that these principles of the Law, which are consistent with republican principles, will also be reflected in the elaboration of the profile for the ideal candidate. Therefore, the National Civic Movement believes that an ideal profile should clearly establish what is expected of candidates in terms of their ethical, professional, academic, and human projection qualities. Below, the ideal profile of a candidate for magistrate who contributes to the rule of law and guarantees clean and independent justice is articulated.

Constitutional and Postulation Commission Law Requirements

Requirements to be met according to the Constitution of the Republic of Guatemala:

Article 207: Requirements to be a magistrate or judge

• Be a native Guatemalan.
• Of recognized honorability.
• Be in full enjoyment of their citizen rights.
• Be collegiate lawyers.

The function of magistrate or judge is incompatible with any other employment, with managerial positions in trade unions, political parties, and with the status of minister of any religion.

Article 216: Requirements to be a magistrate of the Supreme Court of Justice

• Be over 40 years of age.
• Have served a full term as a magistrate of the Court of Appeals or of collegiate courts of the same rank, or have practiced law for more than 10 years.

Requirements and profile approval according to the Law on Postulation Commissions:

Article 2 – The profile must be based on the criteria of: capacity, specialization, suitability, honesty, and proven honorability.

Article 12 – The profile of professionals will be elaborated with the aim of raising the ethical, academic, professional, and human projection quality of public officials elected through this procedure.

Recommended Profile

1. Independence and Impartiality.
The expectation that judges act objectively and independently is of great importance for maintaining the credibility and institutional image of the judiciary. Therefore, the candidate must demonstrate independence and impartiality. According to The Basic Principles on the Independence of the Judiciary of the United Nations, independence is fundamental, as is the appearance of that independence.2

We can see the independence of judges in two dimensions, internal and external. Internal independence is viewed from a normative perspective; it is the autonomy of judges to carry out their duties independently of their ideology or venal assumptions. Judges are expected to make decisions impartially and without ideological biases. Otherwise, the judge would be acting based on prejudices or biases that would violate the rights of those judged and would endanger the reliability or security of the case itself.

On the other hand, external independence or institutional independence refers to the institutional design having mechanisms to prevent the infiltration of threats or temptations towards judges due to the decisions they make.3 This implies that aspiring magistrates can decide without "yielding to fears or favoring anyone and in accordance with the law."4 A truly independent and impartial candidate is capable of making decisions free from pressure, submitting only to the Constitution and the Law.5

The independence of judges is so important because it contributes to respect for processes, the protection of the rights of citizens, and even the judges themselves. It also contributes to the establishment of a zero-tolerance policy for corruption, as an independent and impartial judge does not yield to pressure of any kind.

To determine the above, it is recommended that candidates submit a sworn declaration of interests in which they demonstrate who their clients have been and are, their professional and employment counterparts, and the companies and associations in which they participate or have participated.6

2. Integrity and a history of impeccable conduct.
The role of judges and magistrates as administrators of justice and public servants is linked to their ethics and virtue, from a republican point of view. Integrity, which is demonstrated through an absence of credible convictions or accusations, is either possessed or not possessed. A candidate cannot be "half honorable" or "half upright." Therefore, they must have a record totally free of professional, ethical, and judicial sanctions to demonstrate their integrity and impeccable conduct.7

Integrity can be evaluated by reviewing the candidates' employment history and substantiated challenges from citizens. This latter point encourages citizen participation in the process, making proper and objective use of the mechanisms to submit challenges and thus contributing to civil oversight and transparency.

3. Legal Knowledge.
Candidates must demonstrate their academic and professional preparation, as they must be specialists in the areas they will be dealing with (in the case of the CSJ: civil, criminal, amparos, and preliminary proceedings). Their legal knowledge must be sufficient to understand and safeguard the principles, rights, and freedoms contained in the Constitution of the Republic.8 The evaluation should take into account:

a. Academic background and accumulated degrees b. Participation in specialization courses c. Authorship of books and law articles

An ideal candidate has adequate knowledge of Law and the variables of the cases they have handled to make good decisions and not misrepresent laws, jeopardizing their independence, impartiality, and even their integrity.

4. Analytical Ability and Oral and Written Expression Skills.
Candidates must possess a high level of legal analytical ability and, at the same time, be able to demonstrate it orally and in writing. According to the liberal philosopher, Henry Hazlitt, a judge's analytical ability can be evidenced, in part, through their capacity to evaluate the positive and negative aspects of a case and consider the subsequent effects that their decision may bring.9 A well-prepared and capable magistrate can demonstrate their line of thought and their reasoning when reaching a conclusion to show that their work as a judge has been independent and impartial, that they have used all necessary resources to reach the decision they consider correct, and that they can communicate it in an understandable way.

To evaluate these essential characteristics, the texts and documents that candidates have prepared as professionals should be reviewed. Likewise, jurisprudential lines, books, and academic articles should be analyzed to understand their line of thought and how they substantiate their analysis.10 In the event that the candidate has worked in the private sector, the resources presented or those contributions made within the framework of their work should be reviewed.

5. Commitment to the protection of human rights, republican values, and transparency.
A committed judge must carry out their functions in such a way as to increase public trust in the judiciary. This is possible, in part, through a clear commitment to the defense of individual rights and freedoms, and therefore to the protection of human rights.11 The ideal candidate cannot have demonstrated this commitment to the protection of human rights some or most of the time; they must have demonstrated it always.

To evaluate this, the candidate's writings and public statements should be reviewed.

Each of the characteristics that make up the ideal profile can be further evaluated during the interviews, provided it is done objectively to ascertain the merits of the candidates. Subsequently, it must be ensured that there is consistency between the instruments used by the postulation commissions. Therefore, the call, profile, and grading table must have a congruent relationship with each other.

The aspects that make up the ideal profile demonstrate that being a magistrate requires extensive professional and academic preparation, as well as a serious commitment to the independence of the judiciary and the judicial system. It is necessary that candidates for magistrates of the Supreme Court of Justice and Courts of Appeals not only meet the formal requirements but also other qualitative aspects that demonstrate that they can be impartial judges committed to the protection of individual rights and freedoms. If we want clean justice and to contribute to strengthening the rule of law in Guatemala, we must demand that the postulation commissions choose the best candidates for magistrates of the Supreme Court and Courts of Appeals.

References

1. American College of Trial Lawyers. (2006). Judicial Independence: a Cornerstone of democracy which must be defended.
2. International Commission of Jurists. (2016). Judicial Independence in Guatemala.
3. International Commission Against Impunity in Guatemala. (2019)Postulation Commissions: Challenges to Ensuring Judicial Independence.
4. CyrusR.VanceCenterforInternationalJustice.(2019).​ACOMPAÑAMIENTODEL LAWYERS COUNCIL FOR CIVIL AND ECONOMIC RIGHTS A GUATEMALA PARA EL PROCESO DE NOMBRAMIENTO DE MAGISTRADOS DE LA CORTE SUPREMA DE JUSTICIA Y CORTE DE APELACIONES.
5. Epstein, R. A. (1990). The Independence of Judges: The Uses and Limitations of Public Choice Theory.​Brigham Young University Law Review 827.
6. Ferejohn, J. (1999). Independent Judges, dependent judiciary: explaining judicial independence. Southern California Law Review, 72​, 354-384.
7. Foundation for Due Process. (2014). Guidelines for a transparent and merit-based selection of members of high courts.
8. FUSADES. (2017). Election of the Supreme Court of Justice 2018: magistrate profile.La Libertad.
9. Hazlitt, H. (1964). The Foundations of Morality
10. 10.Montesquieu, ​(1752) The Spirit of the Laws.
11. 11.Negri, A. (2015). The Constituent Power: Essay on the Alternatives of Modernity.​Madrid: Traficantes de sueños.
12. .North, D. C., Wallis, J. J., & Weingast, B. R. (2009). Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History. N​ew York: Cambridge University Press.
13. Office of the High Commissioner for Human Rights. (2003). HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE: A Manual on Human Rights for Judges, Prosecutors and Lawyers.
14. Resnik, Judith, “​Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure​” (2005). Faculty Scholarship Series. 759.
15. Smit, J. v. (2016). Judicial Appointments in Latin America: The Implications of Tenure and Appointment Processes.​Bingham Centre for the Rule of Law.
16. Suárez, W. (2014). The role of the judge in the constitutional state. IUSTITIA, 103-120.