A. Introduction
This Article explores the role played by foreign governments, regional organizations, indigenous groups, and independent lawyers in safeguarding the electoral results and transition of government in the Guatemalan 2023 electoral process. The Article describes this role as unforeseen because these actors are not conceived as conventional actors in safeguarding electoral results and the lawful transition of power. Usually this responsibility is placed on the judiciary. This Article highlights how these actors, using a novel mix of techniques for judicial accountability, were successful in ensuring a constitutional transition of power by influencing the courts to act in compliance with the rule of law and Guatemala’s constitution. These techniques include transnational sanctions, diplomatic “shaming,” protest movements, and repeated litigation. This Article extracts the lessons from the role played by these unforeseen guardians of democracy in the Guatemalan electoral process of 2023. It examines the actions of foreign governments, regional organizations, indigenous groups, and independent lawyers and highlights the contexts in which they were effective against the abusive constitutional practices of the justice system, the tools and methods they used, and the outcomes they achieved. This examination illustrates the many and different abusive constitutional practices of both the Guatemalan Criminal Prosecutor’s Office and High Court in attempting to derail a democratic transition and how they were countered by these unforeseen actors.
Recent comparative legal scholarship has engaged in the study of abusive constitutional practices by governments, leaders, and other state actors. This phenomenon has been referred to by scholars as “abusive constitutionalism”.Footnote 1 This scholarship has focused on authoritarian practices of courts, otherwise known as abusive judicial review.Footnote 2 This comparative scholarship has offered initial insights into this phenomenon, its causes and consequences, as well as potential responses to these abusive practices. Potential responses to this phenomenon vary from constitutional design to intervention by international or regional institutions and organizations. However, the Guatemalan experience provides a different context for authoritarian practices and judicial review to that usually described in the scholarship. This case study therefore provides a new scenario for the study of abusive constitutional practices by prosecutors and courts in a moment of transition of power. This Article highlights how abusive constitutional practices by courts can arise as a result of judicial clientelism, and that both phenomena need to be studied together when analyzing the short-, medium-, and longer-term effects on democracy and democratic transitions.
The case study of the Guatemalan 2023 electoral process is therefore informative in three respects. First, it serves as a diagnosis of constitutional and democratic decay and the abusive constitutional practices of courts in the broader Central American region. Second, it reveals a novel use of techniques for judicial accountability to counter these pathologies of governance and abusive judicial review in a difficult democratic transition period. While these democratic pathologies and political remedies are contextually dependent, they nevertheless provide a successful example of the defense of democracy. Third, the case study is significant because it moves away from the study of courts as guarantors of democracy and focuses on a context where democracy has already been compromised and abusive constitutionalism has been enabled by the judiciary. Therefore, it provides a new case study that can set out new paths for inquiry in the study of not only Latin American and Inter-American constitutionalism, but more generally of the phenomenon of abusive constitutionalism globally.
To show how democracy was defended in Guatemala, this Article proceeds as follows. Section B provides a description of the 2023 Guatemalan electoral process. It describes the many abusive constitutional practices by courts, particularly the Guatemalan Constitutional Court (“GCC”), by showing their involvement in the disqualification of candidates in the months leading up to the election and initial support for the tactics used by the Ministerio Público, the Guatemalan Criminal Prosecutor’s Office, to call for the annulment of the elections. Section C discusses the need to review the activities and roles of high courts beyond their judgments and dispute resolution powers. It shows that the responsiveness of courts to safeguard democracy is far more complex and dependent on context. As such, this Article examines the issues of judicial clientelism that prevented the courts acting as guardians of the constitution and the roots and consequences of judicial clientelism and institutional capture of the GCC in Guatemala. Section D explains how, in this time, a range of actors within and beyond the state worked to hold the judiciary accountable in its responsibility to uphold the constitution. Section E draws two insights from the dynamics of judicial clientelism and judicial accountability traced here. First, the examination of the legitimacy of national and international political and de facto interventions, especially where they are intended to influence judicial decision making, suggests that diplomacy can be more effective tool to other forms of international judicial scrutiny. Second, the defense of democracy cannot rely on the use of doctrine by courts in a context where judicial clientelism and democratic backsliding has already taken place.
To conclude, this Article calls for the reevaluation of judicial accountability in times of democratic backsliding and transition. The Guatemalan 2023 electoral process shines a light on insights and lessons from the use of a novel use of a series of instruments, and the role taken by actors (national and international) to make high courts uphold the Constitution and rule of law. Ultimately, this Article advances the idea that judicial accountability cannot longer be considered as a national activity, but an international and transnational exercise.
B. The 2023 Guatemalan Electoral Process
This section of the Article provides a description of the 2023 Guatemalan electoral process culminating on January 14, 2024 with the transition of executive power to a new President. This description highlights the role of the Guatemalan Constitutional Court and its change of attitude during the electoral process. More importantly, it shows many abusive judicial review practices of the GCC during a democratic transition. Overall, this section contextualizes why the GCC has a strong role in defining politics overall in Guatemala and why new forms of accountability for courts are necessary to guarantee power transitions.
I. The Central American Context
Guatemala is a country in the Central American subregion of the Americas. It shares much of its history with other countries of the subregion—Honduras, El Salvador and Nicaragua—which were all once part of the Central American Federal Republic from 1824 to 1838.Footnote 3 Guatemala has a higher proportion of indigenous peoples than other countries in the subregion.Footnote 4 Like its neighbors, and due to its colonial past, it is highly dependent on foreign trade and agriculture, particularly with the United States.Footnote 5 Like other countries in Central America, Guatemala reinvented its democracy after civil conflict that spanned over thirty years from 1960 to 1996.Footnote 6 This conflict saw the rise of military dictatorship, civil oppression, systematic human rights violations, and acts of genocide.Footnote 7 The region was also a site of U.S. intervention against communism, fueling violence against civil opposition. Peace came to the subregion in the late 1980s with the Esquipulas Process.Footnote 8 This was a broader subregional process that saw the adoption of new constitutions in Central AmericaFootnote 9 and a series of international obligations with the signature of peace agreements in each of the countries.Footnote 10 Guatemala signed fourteen peace accords between 1992 and 1996, which aimed to strengthen democracy, broaden the inclusion of indigenous peoples in politics, and entrench human rights.Footnote 11
After the adoption of its new Constitution in 1986, Guatemala promoted democratic stability and adopted new institutions to safeguard democracy, such as a constitutional court, independent ombudsman, and an independent Criminal Prosecutor’s Office to avoid the concentration of power.Footnote 12 Countries in the Central American subregion, including Guatemala, opened their economies, signed free trade agreements, participated in regional organizations, and ratified the jurisdiction of supranational bodies such as the Inter-American Court of Human Rights.Footnote 13 However, from the early 2010s, Guatemala has seen steady democratic backsliding and institutional capture. This trend is not unique to Guatemala, but also observed in other countries in Central America, which have also seen the rise of populist leaders—like Daniel Ortega in Nicaragua and Nayib Bukele in El Salvador—and the entrenchment of narcotic-trafficking rings with close connections to governments, like those of Honduras and Guatemala. Corruption has eroded institutions and compromised democratic state-building efforts.Footnote 14 Courts have been complicit in legitimizing this democratic backsliding using the language of human rights. “Judicial clientelism”—the appointment of judges by informal networks to favor certain results and outcomes and maintain the privileges of certain groups or people without any regard to the rule of law or judicial standards—is common.Footnote 15
As an experiment to tackle the entrenched corruption within the state, Guatemala signed a treaty with the United Nations to create the Comisión Internacional Contra la Impunidad en Guatemala [International Commission Against Impunity in Guatemala] (“CICIG”).Footnote 16 CICIG was created in 2006 with a mandate to investigate criminal groups in Guatemala, support the Ministerio Público in its criminal investigation efforts, and promote reforms to strengthen the justice system.Footnote 17 During its lifespan from 2006 to 2019, the CICIG was able to successfully prosecute a former Guatemalan president and vice-president, as well as other high-level officials involved in major embezzlement rings.Footnote 18 It also revealed major tax fraud schemes by influential business groups. Under the CICIG’s leadership, a new constitutional reform campaign in 2016 was launched to strengthen the judiciary and Ministerio Público, as well as to recognize indigenous justice. The success of the CICIG led to the creation of similar missions, like the Misión de Apoyo Contra la Corrupción y la Impunidad en Honduras [Support Mission Against Corruption and Impunity in Honduras] (“MACCIH”).Footnote 19 MACCIH had broader powers and revealed many corruption rings within the Honduran state and government.Footnote 20 However, both CICIG and MACCIH were victims of their own success. CICIG initially had major backing from the U.S., which it lost under the first Trump administration. Governments, traditional economic elites, and strong influential actors retaliated, which led to the closure of the missions in the late 2010s and the dismissal of their proposed constitutional reforms.Footnote 21
By 2020, the Central American region had seen the consolidation of power by populist leaders. As described in Section C.II, courts of the region have assisted these leaders by bypassing constitutional bans on re-election, misusing human rights instruments in the process.Footnote 22 New populist figures have reformed state institutions to give them a stronger grip on power, have shut down universities, and expelled many dissidents.Footnote 23 Central America is facing a new era of democratic decay.Footnote 24
II. The 2023 Guatemalan Elections
Guatemala conducts elections every four years. The Executive—both president and vice-president, members of Congress, and authorities of the local municipalities are all elected at the same moment and for the same period of time, four years.Footnote 25 The Supreme Electoral Tribunal [El Tribunal Supremo Electoral] (“TSE”) is the institution in charge of overseeing the Guatemalan electoral process.Footnote 26 By law, the TSE must open the electoral period between the “second or third” week of January.Footnote 27 The electoral period is divided in three stages. The first stage spans from the day after the opening of the electoral process to the day prior to the campaigning period. During this stage, political parties must register their candidates.Footnote 28 The second stage is electoral campaigning. This period starts ninety days before the general election date.Footnote 29 The third stage is the actual election date, which must be on a Sunday in June.Footnote 30 When it comes to the presidential race, if a candidate does not get a majority on the election date, the candidates that finish in first and second place proceed to a run-off.Footnote 31 The run-off needs to take place forty five to sixty days after the initial election, and the winner of this second round is elected president.Footnote 32 After this second round, the president takes office on the fourteenth of January of the following year.Footnote 33
Governing electoral processes are two key institutions: The TSE and the GCC. The TSE is the institution that deals with all matters related to electoral processes.Footnote 34 This includes the registration, sanctioning, and dissolution of political parties; the qualification, admittance, and exclusion of political candidates—presidential, congressional, and municipal; and the settling of electoral dates.Footnote 35 Under Guatemalan law, the TSE is the only institution that can scrutinize the electoral process, political parties, and ballots.Footnote 36 This institution, as well as its powers and functions and everything related to electoral processes, is regulated by the Ley Electoral y de Partidos Políticos [Law of Elections and Political Parties]. This is a law of constitutional rank created by the 1986 Constitutional Assembly to operate alongside Guatemala’s Constitution. It is the only law that regulates electoral processes and political parties in the country. However, during its lifespan, many of the powers of the Electoral Tribunal have been assumed by the GCC.Footnote 37 This is as a result of legal interpretation by the GCC, which has slowly over decades had the final word in resolving high stakes cases in electoral matters as constitutional cases.
The Constitutional Court was created in 1986. Its main purpose is to uphold and defend the Guatemalan constitutional system.Footnote 38 The court has jurisdiction over all constitutional matters. The Ley de Amparo, Exhibición Personal y de Constitucionalidad [Law of Constitutional Procedures, Habeas Corpus, and Constitutionality] details the powers of the GCC and its competences.Footnote 39 For decades, the court has resolved issues ranging from civil matters to the legality of coups and recognition of foreign governments.Footnote 40 Over time, the GCC has taken over many of the powers of the TSE by resolving against it in cases regarding electoral law. It has gone so far as to determine that the TSE is a mere administrative body without adjudicative powers and therefore subject to the GCC’s jurisdiction and interpretation.Footnote 41 All major issues related to electoral law, including the qualification and exclusion of candidates and interpretation of electoral law, are now resolved by the GCC.Footnote 42 This is for two reasons: First, the Law of Constitutional Procedures, Habeas Corpus, and Constitutionality establishes that the TSE’s activity can be constitutionally reviewed by the Supreme Court and later the GCC;Footnote 43 and second, the GCC has considered all electoral matters as constitutional matters, thereby positioning itself as the final interpreter of Electoral Laws.
The 2023 Guatemalan electoral process was anything but straightforward. The campaign process began on January 20, 2023, and it started with the exclusion of many election frontrunners.Footnote 44 The first candidates to be excluded were the left-wing indigenous leader, Thelma Cabrera, and her vice-presidential candidate, Jordán Rodas, a former Human Rights Ombudsman.Footnote 45 At the time Rodas was accepted by the TSE as a candidate, and he held a Constancia Transitoria de Inexistencia de Reclamación de Cargos [Provisional Certificate of Non-Existence of Charges],Footnote 46 a certificate extended by the Comptroller to every state bureaucrat who manages public funds to signify that there are no pending cases of corruption against a bureaucrat.
However, after Cabrera and Rodas were gaining traction in the polls, the Comptroller removed Rodas’s certificate. This action led the TSE to exclude Rodas and Cabrera as candidates. The GCC reviewed an appeal brought by the candidates and resolved that the withdrawal of the certificate of the vice-presidential candidate was valid.Footnote 47 The GCC stated that the requirement of a valid certificate of the Comptroller’s office did not violate the American Convention on Human Rights and was necessary for political candidates as evidency of honorability. Footnote 48 This decision ran contrary to jurisprudence of the Inter-American Court of Human Rights,Footnote 49 which previous benches of the GCC have declared as binding and of similar rank to the Constitution in Guatemala.Footnote 50
Another candidate to be excluded in this early stage was Roberto Arzú, a right-wing contender also gaining traction in the polls.Footnote 51 The GCC held that Arzú’s campaign violated the equality of political competition because he started his campaign before the opening of the electoral campaign by the TSE.Footnote 52 As a result, the GCC interpreted that Arzú’s actions were not honorable, and the TSE was constitutionally enabled to exclude him from the presidential race.Footnote 53 The last excluded contender was Carlos Pineda, an outsider presidential candidate who was for a time leading in the polls.Footnote 54 His exclusion came a month prior to the elections, as result of a provisional injunction from the GCC.Footnote 55 The GCC resolved that he could not run due to alleged inconsistencies found in his political party’s internal selection process for candidates the year prior, even though his candidacy had been originally accepted by the TSE.Footnote 56 The GCC held that these inconsistencies were a risk to the electoral process, to the political party system, and to Guatemalan democracy.Footnote 57 The GCC also called upon the Ministerio Público to investigate any violation of law.Footnote 58
The GCC not only disqualified some presidential frontrunners, but also allowed others subject to constitutional prohibitions to run for office. Such was the case with right-wing leader Zury Ríos. Zury Ríos is the daughter of General Efraín Ríos Montt, who led a coup in 1982 and was charged with crimes against humanity and genocide.Footnote 59 The Guatemalan constitution prohibits those who have a close family relationship to people who have led or instigated coups d’etat in Guatemala from standing for election. In the 2019 electoral process, the GCC upheld this prohibition and Zury Ríos was not allowed to run for presidential office.Footnote 60 Yet in 2023, a new bench of the GCC permitted her to run on the basis that the constitutional prohibition was no longer valid and that Guatemala’s democracy had evolved such that the prohibition could be set aside.Footnote 61 The court’s decision made no reference to precedent, international human rights instruments, or need of constitutional reform to allow her to run.Footnote 62
The initial round of voting for president took place on June 25, 2023. In an unexpected result, Bernardo Arévalo was runner-up, with the second highest number of votes.Footnote 63 Arévalo was a center-left-wing candidate who ran a strong campaign against corruption.Footnote 64 Many political parties called for a revision of the ballots and attempted to delay the certification of the results.Footnote 65 The GCC ruled that any revision of the results of the electoral process should be done in accordance with the Electoral Law and remitted the case to the Supreme Court to oversee the scrutiny process and conduct of the TSE.Footnote 66 After a few days, the Supreme Court ruled that the TSE had acted in a lawful manner and dismissed calls for any recount of the ballots.Footnote 67 However, on July 12, 2023, the Ministerio Público launched a series of criminal suits against Arévalo and his political party, Semilla. The allegations against Semilla were based on the supposed use of fake signatures in the constitution process of the political party in 2018.Footnote 68
The Ministerio Público is Guatemala’s criminal prosecutor’s office. This institution investigates and prosecutes all crimes and felonies in the country.Footnote 69 The Guatemalan Constitution provides it with full autonomy and with the duty to ensure the “correct application of the law”.Footnote 70 This institution is not politically nor legally accountable to other state institutions.Footnote 71 It is endowed with a high share of the state’s annual budget and has a presence across the whole country. The Office also has its own internal hierarchy that is designed to follow the orders of the General Prosecutor, who is regulated by statute.Footnote 72 The only accountability mechanism is to challenge its actions through the courts. These features also make the Ministerio Público a target of clientelism.
The Ministerio Público brought these criminal suits hours before the TSE certified the first round of electoral results.Footnote 73 In a bid to block Arévalo’s participation in the second round of voting, a judge from a criminal court jurisdiction (Primera instancia penal) suspended the legal status of Semilla at the request of the Ministerio Público based on Guatemala’s Ley Contra la Delincuencia Organizada [Law Against Organized Crime].Footnote 74 On July 13, 2023 the GCC granted a provisional injunction in favor of Semilla and Arévalo,Footnote 75 which allowed Arévalo to continue in the second round of voting.Footnote 76 However, the GCC stated that the Ministerio Público should carry out any investigation and the Ley del Crimen Organizado was applicable to political parties,Footnote 77 allowing the Ministerio Público to pursue its investigation and continue its efforts to annul the elections. These efforts also included the prosecution of TSE personnel for their alleged disobedience and disrespect of the court’s orders by not suspending Semilla and allowing the run-off election.Footnote 78
On July 26, 2023, the Permanent Council of the Organization of American States (“OAS”) assembled to analyze the situation in Guatemala. The OAS, as well as the European Union, had sent electoral missions to Guatemala to observe the voting process.Footnote 79 Both entities certified that the electoral process was carried out in legitimate fashion. However, after the actions of the Ministerio Público, the OAS Secretary General led a mission to Guatemala to mediate and ensure the second round of the electoral process. The U.S. proceeded with sanctioning judges and officials of the Ministerio Público due to their actions to “undermine democratic processes or institutions by leading a politically motivated investigation to cast doubt on certified election results to disrupt the presidential transition.”Footnote 80
The presidential run-off took place on August 20, 2023. Arévalo won with a clear majority.Footnote 81 Yet, this result did not stop the Ministerio Público. On September 12, 2023, it raided the location where the TSE deposited the electoral ballots.Footnote 82 It also started to investigate and interrogate volunteers who helped in the electoral process and other TSE officials in charge of managing the ballot-counting software. This action was swiftly condemned by the OAS.Footnote 83 The Government of Guatemala was forced to accept the intervention of the OAS Secretary General as an accountability figure during the transition of power from the incumbent government to Arévalo’s team.
The Ministerio Público’s actions also sparked a reaction from a historically marginalized group in the country’s politics—Guatemala’s Indigenous peoples—who in late September 2023 took to the streets to protest the actions taken by the Ministerio Público.Footnote 84 Indigenous peoples blocked key sections of major highways in the western part of the country for many weeks and called for the resignation of the leadership of the criminal prosecutor’s office. By early October 2023, many stores and supermarkets were empty, paralyzing parts of the economy.Footnote 85 The organized business sector, which had remained silent during the electoral process, launched legal action against the blockades. On October 18, 2023, the GCC issued a ruling which characterized the protest movement as crimenes de lesa humanidad [crimes against humanity]Footnote 86 and ordered the government to take necessary measures to break up the protests.Footnote 87 This did not stop the indigenous peoples, who kept their protest measures and gained recognition from other groups, like university students and strong economic actors.Footnote 88 The mestizo population, which rallied with these groups, supported the blockage made from the indigenous groups. Protesters sought to show that the prosecutor’s actions were partisan and political, not based on law. This led to the resignation of the Minister of Interior of the government, who resigned rather than use violent tactics as ordered by the GCC and the President, Alejandro Giamattei.Footnote 89
During these months, the GCC dismissed a series of legal challenges brought by independent lawyers who sought stronger accountability of the Ministerio Público’s conduct,Footnote 90 challenged the application of the Law Against Organized Crime to political parties during the electoral process,Footnote 91 and sought orders respecting the electoral results. The GCC dismissed many of these claims and held consistently that the Law Against Organized Crime was applicable to political parties.Footnote 92 Without any oversight from the GCC, on December 8, 2023, the Ministerio Público held a media conference calling for the annulment of the elections, the cancellation of the Semilla party, and prosecution of Arévalo and his vice-presidential candidate.Footnote 93
In reaction to these events, the OAS and U.S. ramped up their activities. On November 15, 2023, the Permanent Council of the OAS called upon all institutions of the Guatemalan state to stop all intimidation activities against Semilla and the TSE.Footnote 94 It also swiftly condemned various attempts by the Ministerio Público to strip Arévalo and other elected officials of Semilla of their immunity.Footnote 95 The OAS’s strongest statement came on December 12, 2023, when the Permanent Council voted to apply Chapter IV of the Inter-American Democratic Charter,Footnote 96 which refers to the suspension of member states. This resolution came a day after the U.S. sanctioned nearly three hundred Guatemalans, including congressmen, government officials, and private citizens because of their activities “undermining democracy and the rule of law”.Footnote 97 The EU also released a press statement that followed in the footsteps of the U.S. and sanctioned officials who had attempted to derail the transition process.Footnote 98
Days after these international events, the GCC resolved a constitutional injunction brought by independent lawyers seeking to ensure the presidential transition.Footnote 99 The GCC held that the change of government must occur, and that all elected candidates must take office.Footnote 100 The GCC nevertheless upheld the powers of the Ministerio Público to investigate Semilla. In addition, the GCC provisionally declared without effect the 2024 State Budget,Footnote 101 which had been negotiated and drafted by the outgoing Congress and Executive without any consideration or consultation with the incoming government of Semilla and then-President-elect Arévalo. This budget would have taken away much of the incoming government’s capacity to promote policy and access funds. On January 14, 2024—the date of President Arévalo’s inauguration—there was a convoluted attempt by the outgoing Congress to stall the newly elected Semilla Congress members taking office. Foreign diplomats and indigenous peoples who were present at the presidential inauguration ceremony rallied and called upon the Congress to enable the newly elected members to take office. The GCC acted swiftly and motu proprio—for the second time in its history—and ordered the Congress to enable the transition of power.Footnote 102 These events showed how much the GCC has changed its approach over the course of the electoral process.
C. The Roots and Consequences of Abusive Judicial Review: Understanding Judicial Clientelism
Over the 2023 electoral process, the GCC changed its position drastically in reaction to political events, nationally and internationally. Changes of this sort are not uncommon and may be observed over history. They are, however, usually linked to the changing composition of the bench of the GCC,Footnote 103 which reveal deeper structural issues in Guatemala. Guatemala’s judicial appointment system explains both the entrenchment of judicial clientelism and the roots of abusive judicial review, both of which came to the fore during the electoral process.
I. Studying Courts Beyond Judicial Decision Making
As seen in the previous section, the attempted derailment of Guatemala’s democratic transition was supported by the GCC and its endorsement of the activities of the Criminal Prosecutor’s Office. During this process, the GCC used international human rights standards, anti-corruption conventions, the vocabulary of the rule of law, and other judicial techniques to exclude strong opposition figures from the presidential race, delegitimize indigenous protests, and allow the prosecution of public officials who sought to secure the election results. In other words, it transformed the terminology of liberal democracies into oppressive vocabulary. This transformation of terminology for oppressive use can be categorized as “abusive constitutionalism”. Abusive constitutionalism refers to “the appropriation of liberal democratic constitutional designs, concepts, and doctrines in order to advance authoritarian projects.”Footnote 104 These appropriations can come in the shape of constitutional reform, new legislation, practices by governments and other state institutions, and judicial review.Footnote 105
Taking the particular case of abusive judicial review, Dixon and Landau have studied the abusive constitutional practices of courts around the world.Footnote 106 They have provided reasons for why authoritarian regimes and leaders would want to capture high courts for their own political benefit and advancement of their cause.Footnote 107 The authors also detail the means and instruments of capture mostly employed by authoritarians, such as court-packing and court-curbing.Footnote 108
In presenting solutions to abusive judicial review by courts, Dixon and Landau set out a series national and international responses. At the national level, the authors discuss a range of constitutional design solutions relating to the appointment processes of judges. These include processes that share appointments equally through a range of state actors, a wider basis for participation of institutions and other civil society actors within the appointment process, and the staggering of appointments over time.Footnote 109 At the international level, the authors recommend that international actors should call out authoritarian practices in a modest manner similar to national actors.Footnote 110 This is to avoid any counter-claims of violations of sovereignty or imperialism by other states.Footnote 111 The authors recommend that the international community should respond in an advisory fashion, by providing arguments that may aid local actors in calling out abusive practices by state officials or abusive judicial review.Footnote 112
The Guatemalan case study offers additional lessons, insights, and successful responses to Dixon and Landau’s comparative engagement with the phenomenon of authoritarian judicial review. First, the GCC was not responding to an authoritarian leader or regime seeking to consolidate power. Rather, the GCC’s behaviour responded to the capture of its members by various elite groups. Moreover, and as shown in the next section, the GCC’s appointment process is diverse and complex, involving many state powers, institutions, and actors, much as recommended by Dixon and Landau as a potential strategy to prevent abusive constitutionalism. Rather than be captured by one institution, the GCC has become a site for the struggle for power by various political, economic, and social factions, leading to judicial clientelism. Second, the GCC’s decisions during the electoral process show the extent of the use of liberal language—human rights, anticorruption, crimes against humanity—to delegitimize protest by indigenous groups. Third, it shines light on new actors, international and national, their role, activities, and methods in providing a counterweight to the rulings of the GCC. These are regional organizations, indigenous groups, and independent lawyers. Last, it provides a context and illustrates how these political, de facto and de jure responses to authoritarian judicial review were effective in a short time span and in a scenario of transition of power.
II. Judicial Appointments
One of the manifestations of Guatemalan democratic decay is the politicization of the appointment process for judges, leading to judicial clientelism.Footnote 113 Raul Sanchez Urribari, who has observed this phenomenon in Latin America and elsewhere, explains that judicial clientelism refers to the informal networks which have direct impact on the allegiance of judges and which define their posture in specific topics and cases.Footnote 114 The phenomenon explains why courts adjudicate claims to favor certain actors and outcomes.Footnote 115 Judicial clientelism is tied to corruption and the degradation of judicial review.Footnote 116
In Guatemala, the problem of judicial clientelism is exacerbated by the central role that the GCC has played in Guatemala’s constitutional system and political affairs since 1986Footnote 117 and the extreme constitutionalization of Guatemalan public and private law.Footnote 118 This is partly due to the GCC’s own history and initial democratic successes. In one of its early cases, the GCC declared motu proprio unconstitutional a 1993 coup d’etat and commanded the army to uphold the constitution.Footnote 119 The GCC was also able to command constitutional compliance by the Executive and the Supreme Court, the latter seen historically as a puppet figure of the former.Footnote 120 It therefore positioned itself as an actor that could balance the military with civil society after Guatemala’s democratic transition.Footnote 121 The strength and legitimacy of the GCC made it a target for strong powers and political players who wanted to appoint sympathetic judges to preserve their interests.Footnote 122
Five distinct entities are responsible for the appointment of the five members of the GCC and their substitutes. One judge each is elected by the Executive, the Legislative, the Judicial branches of government, in addition to the selection of one judge each by the Bar of Lawyers [Colegio de Abogados y Notarios] and the University of San Carlos of Guatemala.Footnote 123 The five judges and their substitutes are all elected at the same time. Spreading the power to appoint judges across different entities was intended to safeguard judicial independence. However, a strong political faction needs only three judges to control the GCC and secure a commanding influence over politics and policymaking.Footnote 124 This has led not only to the politicization of the GCC itself, but also of the institutions that appoint the judges.Footnote 125 The most recent appointment process of GCC judges in 2021 showed the extent of this institutional takeover. The executive elected its judge in a secretive fashion. The executive also favored the change of Chancellor at the University of San Carlos, who in return annulled the original selection made by the University and appointed a new judge to the GCC closer to the executive. This led to protests at the university and the shutdown of classes for almost a year.Footnote 126 For its part, the Guatemalan Bar selected a former judge of the Supreme Court linked to a ring that manipulated judicial appointments and who had already been sanctioned by the U.S. in 2021.Footnote 127 Last, Congress reelected a judge who was strongly aligned to conservative, religious, and right-wing groups and who supported Zury Ríos’s candidacy.Footnote 128
To try to tackle this issue of judicial clientelism, many reform proposals have been proposed. None have yet been passed.Footnote 129 One of the main reform proposals related to term limits for the GCC’s judges.Footnote 130 Currently, the judges of the GCC serve for a term of five years.Footnote 131 The five judges, and their substitutes, are all appointed simultaneously,Footnote 132 there are no limitations on reappointment.Footnote 133 It is usual for judges to pursue reappointment, making this process a political one. Renewability can pose a risk to judicial independence, because judges can be influenced to decide in favor of those responsible for renewing their appointment, rather than acting independently.Footnote 134 This same can be said for other courts of the country, where the phenomenon of judicial clientelism is also observed. The Guatemalan Supreme Court and Courts of Appeals also are elected for similar term lengths by Congress.Footnote 135 These renewable appointments, combined with the fact that congress elects each judge, poses a risk to judicial independence and politicizes the judiciary. Lawyers and political players have created rings around particular judges to ensure their re-appointment. This has also led to vices within the judiciary, like the abuse of time limits to resolve high stake cases against certain individuals, in an effort by judges to appease those responsible for their reappointment.Footnote 136
III. Impact on Case Law
The politicization of judicial appointments and judicial clientelism has had a direct impact on the case law of the GCC. The GCC, during its existence, has shifted its jurisprudence considerably in ways that maintain its political status and reflect the political inclinations of its judges.Footnote 137 It is not unusual to see many changes to legal criteria and the sacrifice of precedent in high-stakes cases.Footnote 138
An example is the GCC’s case law on the eligibility of presidential candidates.Footnote 139 In 1990, the court excluded Efraín Ríos Montt, a former general who led a coup d’etat in 1982, from running for president, upholding the constitutional provision disqualifying coup leaders.Footnote 140 Ríos Montt took his case to the Inter-American Commission on Human Rights, which shared the Guatemala’s Supreme Court view and stated that the prohibition was not incompatible with the American Convention on Human Rights.Footnote 141 In 2003, before a new bench of the GCC, Ríos Montt refiled his complaint. In contrast to the previous occasion, the GCC accepted his claim and held that this prohibition was not applicable because the constitution had no retrospective effect.Footnote 142 Ríos Montt was allowed to run for office, but he was not successful in getting elected. In 2006, a new bench of the GCC was called to review the precedent of the previous bench regarding Ríos Montt and declared the 2003 judgment without any jurisprudential effect.Footnote 143
As noted in Section B.II, in 2019, the GCC prohibited Zury Ríos from running for president because of her family relationship to coup-leader Ríos Montt.Footnote 144 Her vice-presidential candidate at that time was previously a GCC judge who had voted to annul the genocide case brought against Ríos Montt in 2010.Footnote 145 He was re-appointed as a GCC judge in 2021 and was a member of the GCC bench which allowed Zury Ríos to run for office in the 2023 election.Footnote 146 This shows how judicial clientelism has had a direct effect in politics and in the electoral process. However, judicial clientelism has not only been focused on defining electoral candidates. On many other topics, the GCC has changed its precedent because of the composition of its bench. This situation has favored different actors,Footnote 147 including trade measures to the benefit of right-wing presidents and economic elites.Footnote 148 Therefore, judicial clientelism has sacrificed the value of many precedents, doctrines, and legal concepts.Footnote 149
A more recent phenomenon in judicial decision-making that is a consequence of judicial clientelism is the abuse of the language of rights in judicial decisions.Footnote 150 An example is the use of the expression of “crimes against humanity” by the GCC to categorize the protest movement of indigenous groups during the 2023 electoral process. This is a phenomenon also seen in other Central American countries with judicial clientelism issues.Footnote 151 Other examples are the use of the language of human rights by high courts in the subregion to avoid upholding constitutional bans on reelection.Footnote 152 This is in spite of the fact that every Central American constitution incorporates banning the reelection of executives after they have served a specified term.Footnote 153 In Costa Rica, the Constitutional Chamber of the Supreme Court used the language of the Universal Declaration on Human Rights and the American Convention to allow the reelection of Óscar Arias without following the process of reform, as stipulated in the Costa Rican constitution and the American Convention on Human Rights.Footnote 154 NicaraguaFootnote 155 and HondurasFootnote 156 later followed suit, in 2009 and 2015 respectively, with the Supreme Courts of both countries citing provisions from international human rights instruments to counter the constitutional prohibition on reelection. In both cases, the executive directly appointed the judges of each court. This same tactic was later utilized in El Salvador in 2021, when the party of Nayib Bukele appointed a new bench of the Constitutional Chamber of the Supreme Court without following conventional procedures,Footnote 157 which swiftly held that the constitutional prohibition on reelection did not apply and allowed Bukele to seek an extra term in office.
Judicial clientelism is a manifestation of broader governance and institutional issues in Central America. It can have detrimental effects on jurisprudence, as seen in the use of international human rights law to override constitutional safeguards against authoritarianism. In these scenarios, responses to judicial clientelism from within the judiciary are limited.
D. The Unforeseen Actors Safeguarding Democracy in 2023
In other contexts, where the results of elections are not respected and the transfer of power threatened, people often turn to the courts to uphold the constitution.Footnote 158 Yet, in Central America, courts have often been collaborators in the problem and are unwilling to commit to democratic outcomes. This section of the Article turns to analyze the role played by a diverse range of unforeseen actors—regional organizations and other states, indigenous peoples, and independent lawyers—in the 2023 electoral process in Guatemala. This analysis shows how these unforeseen actors worked to hold the judiciary and the Ministerio Público accountable in their duty to uphold the constitution and suggests some reasons why their interventions were seen as legitimate and effective.
Judicial accountability works through mechanisms by which judges are scrutinized in the performance of their constitutional role by executives, legislatures, independent state actors, and private actors.Footnote 159 David Kosar has explained how these mechanisms may be political, legal, and institutional in nature.Footnote 160 Guatemala’s experience during the 2023 electoral process shows how mechanisms for judicial accountability may also be economic—that is, through sanctions; diplomatic; and societal.
I. The International Actors: Regional Organizations and Diplomacy
International actors played a vital role in upholding the electoral results and ensuring the constitutional transfer of power after the 2023 electoral process, utilizing tools such as international sanctions and diplomatic “shaming”. Foremost among the international actors involved in the 2023 electoral process were the U.S. and the OAS.
Historically, the United States has a long track record of involvement in Guatemala, and Central America more broadly.Footnote 161 Since the late nineteenth century, the U.S. has consolidated itself as the region’s main trading partner and source of investment.Footnote 162 However, Central America has also been a site of the U.S.’s hegemonic international constitutionalism project.Footnote 163 Through a series of treaties and protocols, in 1907Footnote 164 and in 1923,Footnote 165 under the influence of the United States, the Central American countries adopted the international obligation to not recognize any government that came to power via an unconstitutional revolution or coup d’etat and the principle of non-reelection of executives.Footnote 166 Many of these international obligations were later incorporated at the national level within the countries’ constitutions, creating in the words of the Inter-American Commission on Human Rights a “constitutional custom”.Footnote 167
U.S. intervention has also been determinative in democratic backsliding in the region.Footnote 168 There are many examples of this, like the United States’s intervention in the 1954 coup d’etat against President Jacobo Arbenz,Footnote 169 and its legitimation at the OAS,Footnote 170 and, more recently, the failure to support CICIG under the first Trump administration. A direct example of U.S. involvement in Guatemalan electoral affairs was in the 1930s, when Guatemalan President Jorge Ubico sought to reelect himself. The United States opposed this move, invoking the 1923 Washington Treaty. The Guatemalan Minister of Foreign Relations, Alfredo Skinner Klee, pressured diplomats of the United States by stating that it was the will of the people to reelect Ubico.Footnote 171 Skinner Klee also stated that Ubico was an ally in the fight against communism in the Americas, therefore it was better to keep him in power that to elect a left-wing leader. The U.S. turned a blind eye and allowed the continuance of the Guatemalan president without democratic election.Footnote 172 Ubico stayed in power for 14 years and was known for his repressive and brutal tactics against civil society.Footnote 173 This softening by the U.S. also led to the rise of other dictators in El Salvador, Honduras, Costa Rica, and Nicaragua with a similar style of governing. A second example was the United States’s interference in the 1963 elections, involving Bernado Arévalo’s father.Footnote 174 The United States’s support for a military coup d’etat that year prevented Arévalo’s father from standing for election. He fled the country, even when polls showed him as a clear winner. The coup led to a new era of military dictatorship, censorship, and violence in Guatemala.Footnote 175 However, and with the exception in the first Trump administration, since the 1990s the U.S. has maintained an attitude generally consistent with supporting democracy in Central America.Footnote 176
Today, populist dictators are again on the rise in Central America. The Biden administration renewed the U.S.’s efforts to safeguard what little is left of Guatemala’s democratic institutions. In contrast to the use of treaty provisions of the kind in the 1907 and 1923 Washington treaties, the use of sanctions has become the preferred tool of choice to put pressure on government officials, including judges, to uphold the constitution. The U.S. paved the way for other actors, such as the European Union, to also apply such measures to Guatemalan citizens, placing pressure on Guatemalan courts to act in a manner consistent with the Constitution and democracy.
In addition to the U.S., regional organizations, particularly the OAS, played a pivotal role during and after the electoral process. The OAS Secretary General followed closely the process and reacted vocally against any interference in the electoral outcomes.Footnote 177 The OAS reports highlighted the undue pressure from the Ministerio Público, courts—including criticizing the GCC’s judgments—and other national actors on the Semilla party, the TSE, and other actors close to Arévalo. The OAS became a forum to expose and call out the government and state institutions and make openly accountable the process for the transition of power to the new government.
At the Permanent Council, other Latin American countries openly criticized the activities of the GCC and the Guatemalan government’s passivity. Governments of the Americas challenged the narratives provided by the Guatemalan Ministry of Foreign Affairs and called for the cessation of the prosecutions against Semilla.Footnote 178 They argued that Guatemala could not shield itself from criticism by reference solely to “sovereignty” and its constitution. Many countries argued that the protection of democracy and human rights were essential to sovereignty and the rule of law.Footnote 179
The OAS Secretary General closely followed the transition process, even witnessing the activities of the Ministerio Público sequestering the electoral ballots.Footnote 180 The OAS Secretary General became an actor who would meet with, and gather and secure information from, the TSE, indigenous groups, and experts in an independent fashion. The OAS thus became a platform through which national actors could communicate and expose the activities of the Ministerio Público and condemn the activities of the courts.
II. The National Actors: Indigenous Groups and Independent Lawyers
There were likewise important and influential local actors that intervened in the process of safeguarding Guatemala’s democratic transition process. Two of the most important were indigenous groups and independent lawyers. Each group, through their actions, provided social pressure and legal avenues to allow the GCC to eventually change its position and confirm the electoral results.
Historically, indigenous groups have been neglected in Guatemala’s state-building process.Footnote 181 Guatemala has a long history of racism and discrimination against indigenous peoples.Footnote 182 This is revealed through the many Guatemalan constitutions, laws, and judgments of its courts.Footnote 183 As an example, Guatemala’s constitution gives the state a tutelage and paternalistic role over indigenous peoples and their resources.Footnote 184 Moreover, many judgments of the Inter-American Court of Human Rights have found there to be structural discrimination towards indigenous peoples in the law, citing failures to enact legal arrangements that secure their self-determination, to provide indigenous communities access to radio communication, and to redress for the systemic violation of their rights during Guatemala’s domestic conflict.Footnote 185
Indigenous groups were influential in defending the electoral results and positioning the newly-elected president as someone who could represent all groups from Guatemalan society.Footnote 186 This was the first major social movement of this nature in Guatemala by indigenous peoples. Through communication by their leaders, indigenous peoples assumed a position as electoral guardians.Footnote 187 In their communications, they no longer viewed the GCC or other Guatemalan institutions as legitimate, but rather as corrupt.Footnote 188 Indigenous opposition showed how the silence and complicity of economic and political elites in the efforts to resist the election results were harmful and allowed for further democratic backsliding. The protest measures taken by the indigenous groups pushed the government and economic elites to exert pressure on courts and other actors with strong political ties to government.Footnote 189 In this, the indigenous protest movement can be positioned in the broader literature on the legitimacy of civil disobedience and protest. John Rawls characterizes civil disobedience as political, public, non-violent, and conscious movements to bring change in law or policy.Footnote 190 For Rawls, their legitimacy is found in the fact that these movements, although may be considered as illegal, appeal to higher communal values such as democracy. They are even more legitimate in the face of persistent and deliberate violations of basic principles of society—democracy, human rights, and equality.Footnote 191 Moreover, as Roberto Gargarella explains, the legitimacy of some indigenous movements in Latin America stems from their historical exclusion and the lack of legal avenues to express their disagreement.Footnote 192 In the case of Guatemala, this is certainly the reality. This is because of the historical exclusion of these groups from politics since colonial times.Footnote 193
Another group of actors that were influential in defending the electoral results were independent lawyers. These were lawyers from private practice and were not linked to any political party or traditional economic group. Rather, they represented a younger generation of lawyers that distanced themselves from any political status quo.Footnote 194 Throughout the 2023 electoral process, independent lawyers launched a series of suits against the activities of the Ministerio Público challenging the constitutionality of laws that shielded prosecutors from political and legal accountability and sought to safeguard the competencies and functions of the TSE.
As described earlier, many of these challenges were dismissed by the GCC. Despite this, these court cases were important for two reasons. First, the rulings on these cases revealed to the international community and other actors the clientelism of the GCC. The many challenges presented by lawyers to the court showed that the GCC’s reasoning was not consistent with Inter-American rights standards, and exposed inconsistencies in its judicial reasoning. This signaled to the OAS and foreign governments the abuse of the law by the court. It was through these judgments that the GCC also held that criminal law was applicable to political parties and that indigenous peoples were committing “crimes against humanity”.
Second, and more decisive, the challenges brought by lawyers provided various opportunities for the GCC to react at different stages of the electoral process. As outlined above, the GCC changed its approach after a series of sanctions and international resolutions. However, it was only through the legal cases presented by independent lawyers that the court could formalize its position in a regular and legalistic fashion, as a response to a legal challenge, and not in direct response to the pressure of international actors and protest movements. This allowed the GCC to assume a posture that it was resolving issues for a national audience in a legitimate and legal manner.
E. Insights and Lessons for Dealing with Abusive Constitutional Practices
The Guatemalan experience shows that the defense of electoral processes and judicial accountability is not only a national affair. The 2023 Guatemalan electoral process is a successful example of monitoring, protecting, and securing democracy from further backsliding. It shows how international and regional actors, together with national groups, can entrench and safeguard democracy, national constitutions, and electoral processes.Footnote 195 Therefore, the Guatemalan experience invites us to analyze and review a new series of accountability instruments for courts and review the role of international actors in defending democracy from abroad.Footnote 196 It is also a new example that can inform and provide new insights, lessons, and development to be addressed by the literature on authoritarian judicial review and other theoretical agendas. This section sets out three areas for further analysis raised by the Guatemalan experience.
I. Accountability from Abroad: Sanctions and Diplomacy
1. Sanctions and Human Rights
Sanctions were the main instrument utilized by the U.S. against Guatemalan actors that sought to undermine the 2023 electoral process. It was through these sanctions that the GCC was finally pressured to uphold the results of the election. The sanctions applied to specified individuals, but had an effect on the state as a whole: A day after the US announced sanctions against three hundred Guatemalans—including members of congress, government, and traditional economic elites—Guatemalan bond prices plummeted.Footnote 197 Under a humanist approach, sanctions can be seen as an injury to human rights.Footnote 198 Sanctions affect the rights of individuals and their families, and are applied without due process or access to remedies. However, sanctions did afford a deterrence to safeguard the Guatemalan electoral results. Like any state or governmental function, these measures need to be balanced under a democratic and rights framework.
The use the use of sanctions to safeguard democratic processes is a new area of study,Footnote 199 but some of the issues have been explored by European supranational courts—the European Court of Justice (“ECJ”) and European Court of Human Rights (“ECHR”)—and Supreme Courts of other jurisdictions.
The Kadi saga under the ECJ is an example of the problem of sanctions for the failure for remedies and due process at the international level. In Kadi I and II, the ECJ dealt with lack of remedies within the UN system after states applied travel bans and the freezing of assets pursuant to a resolution of the UN Security Council.Footnote 200 In particular, the ECJ analyzed how the EU Commission and EU member states implemented UN Security Council decisions within the European Union, and their potential impact on fundamental rights of individuals. In Kadi I, the ECJ found that the lack of remedies within the UN system problematic.Footnote 201 The ECJ found that, although there were no legal avenues for individuals to legally challenge a UN Security Council resolution, it could review the form it was implemented by EU institutions and states. The ECJ was of the viewpoint that when implementing UN Security Council decisions, these must comply with the fundamental rights recognized within the EU.Footnote 202 In Kadi II, the ECJ held that the UN sanctions regimen must ensure a “balance is struck between the requirements of international peace and security, on the one hand, and the protection of fundamental rights, on the other.”Footnote 203 Similar views were shared by the ECHR and the Canadian Supreme Court. The first held similarly that sanctions burden rights to people with sanctions and states must seek to act internationally in a manner to harmonize international obligations with human rights.Footnote 204 Meanwhile, the Canadian court’s judgment focused on providing remedies to human rights violations when these are non-existent in the UN scheme.Footnote 205
The comparative examples show that the use of sanctions for safeguarding international values still warrants the protection of human rights even when democracy seems compromised. It would be self-defeating if democratic values are compromised when upholding democracy.Footnote 206 Human rights still need to be afforded in a balanced and proportional manner.Footnote 207 The U.S. affords no right to due process or redress under its transnational sanctions scheme. Under a humanist sovereignty view, sanctions must be evaluated according to their dual function: The preservation of democracy must be considered the framework for the full development of individuals and their rights; and rights of individuals are still subject to their performance within and towards democracy.Footnote 208 Therefore, and as the European and Canadian experiences show, the right to due process and remedies from prerogative powers must still be regulated and upheld.
In addition to the human rights caveats, other issues with sanctions arise that need attention. The U.S. has developed a regime to sanction corrupt practices against foreign officials. The Magnitsky Act authorizes the executive to sanction foreign bureaucrats for corruption or human rights violations.Footnote 209 However, these decisions are discretionary. Sanctions can be used to dissuade prosecutors and courts—directly and indirectly—to resolve in certain ways contrary to their beliefs.Footnote 210 Under these schemes, the U.S. has sanctioned prosecutors, judges—including from the Guatemalan Supreme Court—and other officials.Footnote 211 Judicial independence is at risk if foreign powers sanction judges in order to influence their decision-making to act in a fashion aligned to foreign interests. The distinction between unwarranted interference in the ability of judges to come to an independent decision and incentivizing judges to uphold the constitution can be a fine one. Sanctions might be a means of judicial accountability, but they might also become illegitimate coercion against judges and other bureaucrats. The context of judicial clientelism becomes an important factor in deciding whether sanctions are a problematic interference in judicial decision making or warranted in defense of democracy.
Rather than sanctions at the discretion of individual states, it may be that regional or international organizations provide stronger accountability for the use of sanctions under political and human rights considerations and legitimate their use in the process. For example, the use of sanctions in the Guatemalan context might have been more legitimate if contemplated under an OAS framework with human rights guarantees. The U.S. sanctions came separate and independent to OAS Permanent Assembly resolutions condemning the activities of the Ministerio Público and other Guatemalan actors in attempting to derail the electoral process. The OAS therefore may provide a platform to avoid discretionary use of sanctions, as well as a forum for the accountability of the use of these same instruments.
2. Diplomacy, the OAS, and its Limitations
Judicial clientelism is endemic in Guatemala and Central America. To resolve this issue, reform and change of judicial culture, as proposed by Dixon and Landau, can be a solution. Nevertheless, this is a solution that involves constitutional and legislative reform and, more importantly, time. The Guatemalan constitution sets out a series of procedures to amend it.Footnote 212 This process can be lengthy.Footnote 213 However, in a scenario of transition of government that just spans a few months, with many members of congress, public officials, and private citizens sanctioned because of their opposition to the transition of government, a discussion of wider reform was not an option. The reality of safeguarding the electoral results to January 14, 2024 was the priority.
The Guatemalan example highlights the importance of timing when dealing with authoritarian actors. The effectiveness of international and national actors stemmed from the fact that they acted swiftly in response to changing circumstances. The OAS and other countries were able to keep up with the events happening in Guatemala and determine quickly the steps to take to prevent further backsliding. The Inter-American Democratic Charter provides the means for such quick reaction from the OAS’s Permanent Council and the Secretary General against potential threats to democracy in the Americas.Footnote 214 This international instrument sets out the principles by which political action can be taken by member states through the OAS.Footnote 215 Article 20 of the Charter establishes that either the Secretary General or Permanent Council may asses an unfolding situation of “an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime” and take decisions as “deemed appropriate” to manage the situation.Footnote 216 It was through these powers that allowed a quick response from the Secretary General of the OAS. The OAS electoral missions kept the Permanent Council and other international actors informed on the situation in Guatemala and created a legitimate basis for quick response to steer the GCC and Ministerio Público towards upholding the electoral results.
The Guatemalan experience serves as an example of international action to safeguard democratic outcomes in key moments of governance. This case study shows the value of political outcomes through the Permanent Council and the Secretary General in preventing further backsliding. This experience provides new lessons and insights beyond that traditionally seen in the Americas and exposes the value of political negotiations rather than legal and judicial procedures.Footnote 217
One important lesson relates to the organization of the regional institutions of the Americas. There has historically been a disconnection within the OAS between the political branch of the OAS and the Inter-American Human Rights System. Human rights bodies in the Americas have a long history of calling out human rights abuses by governments.Footnote 218 In the cases of Venezuela and Nicaragua, both the Inter-American Human Rights Commission and Court have found these countries responsible for infringing political rights by revealing broader democratic institutional backsliding.Footnote 219 The Inter-American Human Rights Court has also used the Inter-American Democratic Charter as the basis for many of its recent decisions involving political rights and democratic backsliding.Footnote 220 Yet, as several authors have shown, these human rights bodies have been ineffective to enforce their decisions and respond in practice to democratic backsliding.Footnote 221
The political branches of the OAS are rarely connected to the human rights system. The Inter-American Democratic Charter makes no mention of the human rights institutions their role in safeguarding democracy in the Americas, or how the Secretary General and Permanent Council should uphold judgments and findings of both the Inter-American Human Commission and Court.
In the case of Guatemala, the Inter-American Human Rights Commission has reported on the situation within the country and the institutional backsliding for over two decades.Footnote 222 However, these findings did not feature in in the discussions of the Permanent Council or the OAS Secretary General. In addition, Guatemala has been found responsible for violating human rights by the Inter-American Human Rights Court.Footnote 223 Yet, compliance with the Court’s rulings and its supervision over state authorities is also not addressed at the OAS political forums. This disconnection between law and politics has negative effects on the ability of the regional organizations to uphold democracy.
The success of the intervention in Guatemala’s electoral process provides valuable lessons for how the political and legal arms of the regional organization might better work together in the future. Particularly for the OAS, it shows the need for diplomacy to the coordinated with politics and law. It shows how countries and organizations can be effective through political actions at an international level, and, as a result, have an impact in judicial outcomes. Yet, the Guatemalan experience shows that the role played by the OAS is merely one part of a larger puzzle on the synergy between international and national actors to safeguard electoral results.
II. The Role of National Actors and Ownership
An understudied group of actors in scholarship are indigenous groups and independent lawyers, which had a key role in defending democracy in Guatemala. These actors represented an attitude of ownership of the role of guarantors of the democratic transition of power. While indigenous groups pressured through de facto measures, independent lawyers provided a safety valve for the final legal outcome. As Tarunabh Khaitan argues, these groups serve as discursive accountability actors.Footnote 224 As he explains, these actors pressure state actors through discourse and other measures, such as through the media, campaign groups, and judicial challenges, among others.Footnote 225 In other words, they serve as accountability actors which can legitimize or delegitimize public activities and courts, and mobilize when these actions are of abusive nature.
On the topic of protest movements, the United States’s January 6, 2021 experience reveals the problems of these sort of actions. Strong leaders can influence and spark strong protest movements, as seen in the US and Brazil in 2023 after their presidential transition. Rather than being a tool for judicial accountability or legitimate disobedience, in some contexts, protest is used to pressure institutions and can compromise judicial independence by dissuading courts to favor certain results.Footnote 226 It is therefore important to understand how and why the protests by indigenous groups to secure the electoral results in Guatemala were different.
As mentioned previously, the Guatemalan indigenous protests lasted well over a month. The protests affected trade and the transportation of produce. Many stores were unable to stock up in Guatemala City due to these measures. This social pressure highlighted the cause and pushed citizens and other influential actors, such as economic elites, to recognize the electoral results. However, it also highlighted the GCC’s abusive usage of liberal and international law language and the racist tone when it called these activities “crimes against humanity.” This experience made indigenous groups visible. They were acknowledged as political force outside of the traditional institutional settings, in which they have been long excluded and in which elite interests dominate. In this sense, indigenous groups have become a legitimating voice with capacity to safeguard democratic results outside of politics and the law. This recognition transforms these groups into key players and important actors when authoritarian practices, by various state powers, have already diminished any legal or political response to abusive conduct. Therefore, the use of protest became legitimate as no other political or legal means was available to guarantee a democratic transition. However, it is to be noted that the participation of indigenous peoples as a political force outside of the traditional institutional settings need further comparative study.
On the topic of independent lawyers, the Guatemalan experience provides many insights for the use of litigation in guaranteeing democratic transitions. Independent lawyers through their many legal challenges exposed the activity of the Ministerio Público and the ruling of the GCC and other courts to a wider national and international audience. They became key actors in shining a light on the illegalities committed by criminal prosecutors by continuously challenging their actions. It also forced the GCC and other courts to keep ruling and make public their rulings to public and social scrutiny. It was through this activity that allowed the GCC to change its position. In other words, judicial challenges afforded the GCC a venue to legally express itself and react to public scrutiny and international and national pressure. In this way, the Court became a guardian of democracy despite itself.
Consequently, it needs to be mentioned that it was the synergy of international and national actors, through political, de facto, and legal measures that kept Guatemalan democracy from further backsliding. No single actor can be attributed sole responsibility for this feat, rather it was a series actions by external and local groups that provided a successful experience of defending democracy in a highly complicated and strenuous moment in Guatemalan political history. Without international condemnation, local social pressure, and the legal escape routes, the Guatemalan transition of government would have been derailed. Although the Ministerio Público continues with its efforts to investigate the 2023 electoral outcomeFootnote 227 and the GCC maintained the suspension of Semilla as a political party,Footnote 228 Arévalo assumed the presidency and has continued in power. Moreover, he has invited the OAS to support in the judicial appointment process for the Supreme and Appellate courts in Guatemala, as detailed in the next section.
III. Studying in and with Context and Providing Systemic Solutions
A great deal of scholarship is focused on the resilience of national courts, their role as guardians of democracy, and the doctrines they utilize as bulwarks against authoritarianism.Footnote 229 Intellectual agendas studying democracy, the rule of law, and constitutionalism in the Latin American region and beyond have focused on courts as one of the main actors in the transformation of democracy in that continent. This is the case of Ius Constitutionale Commune in Latin America (“ICCAL”).Footnote 230 In a nutshell, this scholarly agenda focuses on the role of the Inter-American Court of Human Rights as the main agent in the transformation of democracy in Latin America, through judicial dialogue between the regional and national courts.Footnote 231 It theorizes a court driven democracy, positioning courts as its main transformative agents and keepers.Footnote 232 However, the Guatemalan experience, and more broadly, Central America’s experience with authoritarian constitutionalism, provide new scenarios with which these scholarly agendas need to engage further.Footnote 233 The reality of judicial clientelism, the capture of judicial institutions and abusive judicial review compromise the potential for courts to be agents for democratic change. The disconnection of law and politics in the Inter-American regional system further compromises the vision of regional and national courts acting together to address democratic backsliding. As outlined above, the political solutions to the problems of judicial clientelism—such as sanctions and diplomacy—present challenges to traditional conceptions of judicial independence and involve unforeseen actors beyond the courts. The Guatemalan experience shows that it is necessary to think about democracy, the rule of law, and judicial independence beyond the realm of the courts alone. It suggests that solutions to abusive judicial review can come from a mix of political intervention, protest, and legal challenges against the abusive actions taken by courts and justice institutions.
The Guatemalan case study, and Central America more generally, show how courts have been taken over by strong political and economic actors. The Guatemalan example, as this Article highlights, shows how free courts are to change doctrine, leave jurisprudence aside, and misuse concepts, such as crimes against humanity. It is under these strenuous situations that law loses its normative effects and compliance. Studies have been made of the ease with which Central American courts have avoided constitutional bans on presidential reelection. One example is the study of the Honduran Supreme Court’s judgment on allowing the reelection of President Orlando Hernandez.Footnote 234 Yet, this type of study does not consider broader shared pathological governance problems in the subregion, nor their historical background of the U.S. constitutional hegemony of 1907 and 1928. As a result, these studies provide doctrinal solutions or critiques informed by transnational examples with limited contextual and historical reflection.Footnote 235 The 2023 electoral process in Guatemala shows the need to review the abuse of constitutional law, human rights, and rule of law concepts and doctrines within a broader institutional and contextual analysis. It shows that the legal interpretations of the court are secondary to a culture of judicial clientelism and institutional takeover in weak democracies and hybrid regimes.
As a final insight and caveat, the Guatemalan experience must be taken as a short-term and first step solution that is contextually and temporarily specific. Guatemala cannot rely each time on foreign intervention or de facto measures. As highlighted by the Inter-American Human Rights CommissionFootnote 236 and the UN High Commissioner of Human RightsFootnote 237 in recent visits, the appointment of judges still is susceptible to clientelism. The need for constitutional reform to strengthen the judiciary to diminish clientelist practices is an ongoing challenge in the country.Footnote 238 However, steps have been taken to diminish this susceptibility by the new government. Soon after assuming power, Arévalo asked the OAS to install a new mission to observe the appointment process of judges for the Guatemalan Supreme Court and Courts of Appeals.Footnote 239
OAS missions of these kind have been rare, but Guatemala was not the first. This new mission may trigger a new trend in Latin America in safeguarding against interference by strong or corrupt actors in the judicial appointment processes in the many countries of the region.Footnote 240 The results of these missions are still pending.Footnote 241 The novelty of these missions, still not engaged with in scholarship, may afford new insights on international collaboration with local institutions to oversee the appointment of judges and avoid further backsliding.
To conclude, the safeguarding of democratic electoral results may provoke spillover responses to the larger systemic governance issues and authoritarian judicial review. The election of a democratic government, such as that of Arévalo, has consequently been followed up with the calling of new missions and interest from national civil society in the appointment process of Supreme and Appellate court judges. Stronger public international and national scrutiny of the judicial appointment process may become a new piece of the puzzle dealing with authoritarian judicial review.
F. Conclusion
The Guatemalan experience shines a light on the detrimental effects of judicial clientelism and the need to understand judicial interpretation not as a closed system, but as a broader effect of the institutional takeover of courts. It also shows how courts can bend their interpretation of human rights concepts, thus sacrificing values of precedent and juridical certainty along the way. However, this Article showed that courts, even constitutional courts, can be dissuaded and change their positions through strong opposition. New instruments and actors, both international and national, can influence the decision-making of courts to uphold democratic values and outcomes. It provides a new form of judicial accountability within and beyond the state.
However, it is to be noted that the effectiveness of these actors and their actions are contextually contingent. An analysis of their effectiveness needs to consider history and context. For the Guatemalan experience, analysis needs to be informed by how local actors respond to international and foreign pressures. The U.S.’s influence has been determinative in the promotion or backsliding of democracy in Guatemala. This partly explains why U.S. sanctions were well received by many in Guatemala, legitimating their use in this case. Openness to outside actors is a trait in Guatemala since the 1990s. Openness is associated to the guarantee and legitimation of electoral results and was given legal shape under the OAS and its electoral mission, which practice started in Central America after the subregion’s democratic transition in the late 1980s.Footnote 242 It was through this interaction of local and international actors that ultimately upheld democratic results and allowed the transition of power in Guatemala.
Lastly, this Article provides new lessons and insights for scholars in expanding their theoretical inquiries in the topic of abusive constitutionalism in Latin America and beyond. The Guatemalan case study provides a new set of features and inquiries to that already analyzed by scholars, which serves to complexify the study of the phenomenon of abusive constitutional practices by courts and offer potential short-, medium-, and long-term solutions to it.
Acknowledgements
I would like to give special thanks to Anna Dziedzic, Mateo Merchan Duque, Tomas G. Daly, Raul Sanchez-Urribari, Anna Betina Kaiser, Cheryl Saunders and the anonymous peer reviewer from the first submission of this Article. I also give thanks to the GLJ editing team for their great editorial assistance. Last, I would like to give thanks to the Jean Monnet Center of International and Regional Law and Justice for housing me during 2023-2024 academic year.
Competing interests
The author declares none.
Funding statement
No specific funding was given for the preparation, drafting or submission of this Article.
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