A Constitutional Crisis in Guatemala?

–Carlos Arturo Villagrán Sandoval, Melbourne Law School

On August 29^th 2017, the Guatemalan Constitutional Court declared without effect a Presidential declaration that expelled the Commissioner of the International Commission Against Impunity in Guatemala (CICIG in the Spanish acronym). The events leading to this judgment consisted of a series of twists and turns, like those you may find in a Latin American “telenovela”. In this post, I explain how the Constitutional Court arrived at this point.

First, some brief background.

In 2007, the state of Guatemala ratified a treaty with the UN, the first of its kind, creating a new international organisation. The CICIG is an international organisation, which is not part of either the Guatemalan state or the UN, but rather an independent body with far reaching domestic authority. The Commissioner is a foreign national that is appointed by the UN Secretary-General and is currently Iván Velásquez from Colombia, who in his native country led criminal investigations against the Cartel of Medellín and exposed ties between government officials with paramilitary and drug-trafficking groups during Álvaro Uribe’s presidency. The CICIG has the power to prosecute and bring criminal claims against corruption networks embedded within the Guatemalan state. (on more about the CICIG see here)

For several years, the CICIG was a dormant body, ready to be shut-down in 2015 by petition of the Guatemalan President of the day. But in that same year the CICIG, with the aid of the General Prosecutor’s Office, brought a series of high profile cases to the public eye. These cases revealed a series of major corruption scandals that involved the then Vice-President and President (yes, the same one who was about to ask the UN to shut the project down!). The revelation of these corruption scandals led to mass protests in Guatemala, followed by the resignation of both Vice-president and President and, ultimately, to their arrest. In October 2015, presidential elections were held in Guatemala, with an outsider wining the presidential race, Jimmy Morales.

After taking office in January 2016, the new Guatemalan President swiftly endorsed the CICIG’s mandate. However, endorsement was withdrawn after the CICIG brought a criminal suit against the President’s son and brother in early 2017. In the following months, the President started to distance himself from the CICIG. Soon after, things began to become even shakier between the President and the CICIG. When the CICIG began to bring more suits against actors within the President’s inner circle, the President’s posture became one of confrontation against the international body.

Things became personal on the 26^thAugust 2017. The Guatemalan President had scheduled a meeting with the UN Secretary-General, António Guterres, to talk about the CICIG’s role in Guatemala. While this meeting was taking place, the CICIG brought a claim against the Guatemalan President on charges of use of illicit sources by the President to fund his presidential campaign. The President’s response came on Sunday, August 27^{th 2017}, at 6:00 am. The President issued a public statement declaring “non-grata” the CICIG’s Commissioner and ordering him to leave the country immediately. The President’s decision was based on the interpretation of article 9 of the Vienna Convention on Diplomatic Relations.[1]

The Presidential declaration immediately sparked an outcry in Guatemala. Guatemalans in favour of the CICIG took to the streets to protest this decision. Meanwhile, far-right groups and supporters of the President launched a series of media messages against the CICIG. A few hours later, the Guatemalan Ombudsman, with other civil groups, presented a series of writs of amparo, or constitutional injunctions, for the Constitutional Court to declare the unconstitutionality of the President’s decision and reverse its effects. Soon after, the Constitutional Court granted a provisional decision halting the effects of the Presidential decision until the final decision was awarded. For a moment, the world’s eyes turned to Guatemala, showing support for the CICIG’s Commissioner, particularly the UN Secretary General, the US and the Inter-American Human Rights Commission.

Finally, on August 29^th 2017 (and in an unusually speedy fashion) the Constitutional Court rendered its judgment. In a split decision (3 in favour-2 against), the Court held that the presidential declaration was unconstitutional for the following reasons: first, the president did not follow any of the constitutional formalities required by the Guatemalan Constitution to make such declaration, such as the need for ministerial countersignature; and second, and more interestingly, the presidential action violated provisions included within the CICIG’s creation treaty with the UN. Under article 12 of this treaty, any dispute between the UN and Guatemala regarding the application and interpretation of the CICIG’s mandate and powers must be solved by negotiation between the Guatemalan state and the UN. Therefore, the Constitutional Court interpreted that the President’s unilateral declaration act violated the reciprocity required by the treaty.

Following on the issue of the claims against the Guatemalan President for use of illicit sources to fund his presidential campaign, on September 4^th 2017, the Supreme Court delivered a decision authorizing the start on the impeachment process against the President and referring the case to Congress. Now it is up to the Congress to decide on whether to strip the President of his immunity and face charges brought by the CICIG.

The CICIG is a first of its kind international body. Due to its success, it has become a target of backlash by some strong domestic actors, like the Guatemalan President. However, due to its international nature, it has avoided being influenced and tempered by strong local actors, which has helped it to meet its anticorruption mandate. Its resilience to domestic backlash and pressure is in part due to strong popular support because of its investigations against corrupt officials, including the previous president and vice-president. Although the CICIG has just averted disaster, one thing is for sure: Latin America keeps on providing nail-biting scenarios and developments.

Suggested Citation: Carlos Arturo Villagrán Sandoval, A Constitutional Crisis in Guatemala?, Int’l J. Const. L. Blog, Sept. 8, 2017, at: http://www.iconnectblog.com/2017/09/a-constitutional-crisis-in-guatemala

[1] Article 9 of the Vienna Convention on Diplomatic Relations of 1961 states the following: ‘1.The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.’

*Carlos Arturo Villagrán Sandoval is a Ph.D Candidate and member of the Constitution Transformation Network of Melbourne Law School, and former Human Rights Adviser and State Council for the Guatemalan Government within the Project of Historical Memory and Human Rights for Peace of the United Nation Development Programme (UNDP).