–Javier Urízar Montes de Oca, International Service for Human Rights
It was nothing short of extraordinary: the small opposition party, “Semilla”, somehow managed to win the third most seats in Parliament and the presidential election, despite being a relatively unknown progressive party in a fundamentally conservative country.
This victory not only surprised the world, but also the powers that be. As soon as it was announced that Semilla would go to the run-off presidential election, a series of establishment actors started taking measures to stop it from attaining power. These ranged from misinformation campaigns to an assassination plot, all of which failed and, for the time being, appear to have subsided.
Nevertheless, they are still using their main tool: the legal system. Accusations of fraud in the party’s formation led to the suspension of its legal status, the issuance of arrest warrants, raids on party and electoral offices, and calls for the nullification of the elections they secured.
This is unprecedented. Since the country transitioned to a democratic Constitution in the mid-1980s, never had a party suffered a similar level of persecution and punishment, despite the allegations being most likely unsubstantiated, ubiquitous in the electoral landscape, and not warranting such harsh measures.
In order to justify its actions, the State Prosecutor’s Office (MP, for its Spanish acronym) is putting forward a simple argument: if Semilla was created fraudulently, it legally never came into existence. As such, everything done by the party is null and void – including its participation in the elections.
If this seems to lack nuance, it’s because it does. The MP is taking advantage of the lack of clarity and precedent in the Guatemalan legal system (the law does not regulate what should happen when a winning party is found to have been created fraudulently) to confuse the population and present what at face value seems as a sensible argument: no one can legitimately enjoy the benefits of crime, so Semilla cannot win elections it participated in fraudulently.
Human rights law may provide some clarity. Pretty much all arguments put forward by the MP have been addressed by other courts elsewhere in the world, so it is possible to reach a conclusion on the (il)legitimacy of the case against Semilla.
Allegedly, Semilla forged and bribed in order to get sufficient signatures to qualify as a political party; it is thus a criminal enterprise that should be suspended and then dissolved. To this day, the MP has not presented credible arguments to back up its claims, so, under the principle of presumption of innocence, no decision that could impact the rights of the party or its members should be taken. Those already taken should be revoked.
It was the responsibility of the electoral authority (TSE, for its Spanish acronym) to verify the legitimacy of the signatures, and of the MP to investigate possible instances of fraud. The party was registered, it participated in the 2019 elections and has had representation in Congress since then. The MP itself claims that the criminal investigation started in mid-2022, and yet, no measures were taken until after it was announced that Semilla had reached the runoff presidential election.
Candidates cannot be impacted in their rights to stand for election for the negligence of authorities regarding participation requirements. Furthermore, the fact that the validity of the party was never called into question meant that both the electorate and the elected had the legitimate expectation that, after winning, its candidates would assume power.
Suddenly questioning what had already been considered valid and hastily adopting measures that exclusively affect the opposition amount to an arbitrary deprivation of the rights to elect and be elected, while also violating the principles of legal certainty and “electoral preclusion” (once a phase of the electoral process has passed, it cannot be undone).
In any case, even if the party were to be dissolved, this would in no way impact the rights of the winning candidates to assume their posts. The mandate of elected representatives belongs to them personally, not to the party. Removing their seats because of the dissolution of the party would infringe their rights and the sovereign power of the electorate.
The will of the electorate is also relevant when it comes to analysing the importance of the alleged fraud. In electoral matters, not all fraud is the same; in order for it to warrant the annulment of an election, it must be severe, with an impact so significant that it becomes impossible to determine if the results actually reflect the will of the people.
The accusations of fraud became public knowledge prior to the runoff election, yet the Guatemalan people overwhelmingly voted in favour of Semilla. The free and democratic expression of the choice of the people cannot be put into question through subsequent modifications of the electoral system.
Even disregarding all of this, even supposing that the allegations were true, Semilla still has a right to a due process of law that provides all relevant guarantees. The case is being handled by a prosecutor and a judge who are notorious for their lack of impartiality; major decisions have been taken without a legal basis, and the party has not even had a chance to defend itself (access to the case file has been denied over 30 times). Given these blatant violations, any resolution that somehow affected their rights would be illegal.
Attempts to decide the results of the elections in courts, rather than in the polls, are common in our region. However, the Rule of Law is strengthened when courts act under their obligation to protect, and not dictate, the will of the people. Hopefully this will happen in Guatemala.
Suggested citation: Javier Urízar Montes de Oca, Human rights and elections: the case of the “Semilla” party in Guatemala, Int’l J. Const. L. Blog, Nov. 10, 2023, at: http://www.iconnectblog.com/stronghuman-rights-and-elections-the-case-of-the-semilla-party-in-guatemala-strong/
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