New York City Bar Association Reports on Second Delegation to Guatemala Following Genocide Trial

FOR IMMEDIATE RELEASE

Kathryn Inman
(212) 382-6656

New York City Bar Association Reports on Second Delegation to Guatemala Following Genocide Trial

New York, October 7, 2014 – The New York City Bar Association has issued a report of its second delegation of lawyers to Guatemala to examine legal developments in the aftermath of the 2013 prosecution of former President Efrain Rios-Montt and the ongoing appointment of judges to the Guatemalan courts, and to assess whether the management of the judiciary corresponds with strengthening the rule of law in Guatemala.

Like the 2013 Delegation, the July 2014 Delegation was organized by the City Bar’s Cyrus R. Vance Center for International Justice, with support from the Myrna Mack Foundation. The Delegation met with a broad range of interested participants in the development of the rule of law in Guatemala, including many of the individuals or their successors in office with whom the previous delegation met. These included the President (Magistrado Titular) of the Guatemalan Constitutional Court, the Chief Judge and Members of the High-Risk Court who conducted the trial in the Rios-Montt case, the College of Lawyers, and the Human Rights Ombudsman of Guatemala.

“The Delegation is wary of venturing too deeply into the particulars of the Guatemalan judiciary and legal system, based on its own limitations, as well as its proper role. However, its observations lead to a sense of crisis in the judiciary strongly challenging the rule of law in Guatemala and compelling engagement by neighbors and colleagues,” states the report.

The Rios-Montt case supplied examples of several features of the Guatemalan judicial process that participants frequently criticized, explains the report. These include: the qualifications, training, and support of judges; the assignment of cases to judges; the reported efforts to influence judges with bribes or threats; and the use of the constitutional challenge (amparo). The Delegation noted “a general view that the judiciary lacks appropriate respect, authority, and organization” and that “there is widespread resignation that change is impossible, despite recent advances in the rule of law, exemplified however inconclusively by the Rios Montt Case.”

The Delegation identified a consensus in Guatemala to seek to enhance the professionalism of the judiciary, a goal which seems appropriate, even urgent, based on the observations of the Delegation, as well as the 2013 Delegation. The Rios-Montt Case and its aftermath drew worldwide attention to the Guatemalan judicial system, and observers “generally expressed puzzlement and concern over certain aspects of that case and subsequent events, notably reversal of a substantive decision on procedural grounds leaving no apparent likelihood of resumption.”

However, the Delegation did not observe that this international concern about the Guatemalan judiciary and more broadly the rule of law have forged a consensus for significant reform among Guatemalan elected officials, the legal profession, or the business community. “Such reform seems timely, even urgent, and essential if Guatemala is to present itself as seeking to strengthen the rule of law and engage more successfully with international business.”

In the view of the Delegation, this reform effort should include the following issues: judicial qualification, judicial appointment, judicial training and support, judicial protection, judicial discipline, case assignment, and judicial review.

The report offers the following recommendations for reforming judicial selection to “create a more firm foundation for progress toward the shared ideal of a competent and appropriately independent and empowered judiciary over the course of years,” in the hopes of reducing the number of applicants and providing sufficient information to facilitate explication of the ratings that the commissions make of candidates:

• Revising term and timing. The five-year term for judges seems too short, challenging the appointment mechanism too frequently and reducing judges’ sense of independence from what inevitably is a political process. In addition, appointment of all high-level judges at the same time appears to challenge the feasibility and efficiency of any selection process.

• Re-constituting the commissions. The size and composition of the commissions charged with appointing judges are unwieldy and no longer consistent with the purpose of broad representation. Reform also seems essential and inevitable.

• Setting criteria and rationales. There seems to be consensus that qualifications for serving in the judiciary need to be better known to attract appropriate applicants in feasible numbers, qualifications which might reflect higher expectations for experience and professionalism. The commissions also should seek and use background checks by staff or independent law enforcement officials, as well as use public comment and interviews more effectively.

The Delegation acknowledges that reform efforts should encompass additional issues and considerations, as well as the participation of representatives of all elements of Guatemalan society. “Such an undertaking may well lead to significant revision of the Constitution and the organs of government,” the report states.

During its three-day visit, the Delegation also met with the Country Representative in Guatemala of the United Nations High Commissioner for Human Rights, the Commissioner of the International Commission Against Impunity in Guatemala, the Regional Director of the International Commission of Jurists – Guatemala, the President and Members of the Executive Board of the Collegium of Lawyers of Guatemala, the President of the Foundation for the Development of Guatemala, and the Dean of the San Carlos University (Universidad de San Carlos).

The delegation consisted of Hunter T. Carter (United States), partner at Arent Fox, member of the Vance Center Committee, and former chair of the City Bar Inter-American Affairs Committee; Francisco Cox (Chile), partner at Balmaceda & Cox; Robert Cusumano (United States), Executive Director of the Legal Horizons Foundation, former general counsel of ACE Group of Insurance Companies, and member of the Vance Center Committee; Mirna Goransky (Argentina), Deputy General Prosecutor of the Office of the National Attorney General in Argentina (on leave) and Vance Center consultant for the Delegation; Clara Elena Reales, (Colombia), Chief Legal Officer of the Colombian Association of Pension and Severance Funds Administrators; Carlos Rosenkrantz, (Argentina), partner at Bouzat, Rosenkrant & Cia and president of the Universidad de San Andres; and José Ugaz (Perú), partner at Benites, Forno & Ugaz. Carter, Cusumano and Ugaz were also in the 2013 delegation.

The report may be read here: http://bit.ly/1yKQwwz

For the Spanish version of the report, click here: http://bit.ly/1s7Gm3W

About the Association
The New York City Bar Association, since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. www.nycbar.org