By Dr. Kate Brannum
Department Chair, International Relations and Global Security
Almost every week, there are stories in newspapers about justices and sometimes prosecutors under attack for angering political leaders in violation of the norms and principles established by the United Nations. While we have not seen anything as drastic as the killing of 12 Colombian judges in 1985, justices are contending with threats, prosecutions, pre-trial incarceration and forced exile.
Some legal professionals attempting to persevere in their work despite threats have been stymied by the infiltration of government spies within their offices. All of these actions prevent a truly independent judiciary.
An independent judiciary is one of the cornerstones of democracy. When the legitimate, efficient confirmation of justices is undermined, so are democracy and human security.
“Today, the independence of the judiciary and the free exercise of the legal profession continue to be under threat in many countries of the world.” – United Nations Human Rights Office of the High Commissioner
Basic Principles from the UN Govern Judicial Independence
Judicial independence is recognized as an international custom and a general legal principle. Without it, there can be no rule of law. The UN Basic Principles on the Independence of the Judiciary provides a framework to examine recent threats to justices in Guatemala and other countries.
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Violations of Basic Principles
One of the most violated principles is Principle #10, which references the selection of justices. It states that “Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”
This principle is commonly violated when political leaders delay the confirmation of judges, because their party does not have the power to appoint those justices. In other words, those political leaders refuse to confirm any justice who does not share their political beliefs.
For example, the Guatemalan Congress did not move forward with 26 new Supreme Court of Justice Magistrates or 225 appellate justices in 2021, who should have taken office in 2019 for five-year terms. As a result, the Supreme Court justices elected in 2014 remained in place well after their five-year term should have ended.
Principle #10 has also been violated in the United States. In 2016, Republicans refused to confirm a nominated judge, Merrick B. Garland, until another election had passed.
While some of the most egregious cases have been in Guatemala, the threats to basic principles of judicial independence can be seen across the Americas. In Colombia, there have been violations of Principle 11, which states that “The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.”
For instance, “Águilas Negras” (Black Eagles), a far-right paramilitary organization, sent a written threat to the justices who voted in favor of abortion decriminalization to the Constitution Court’s building. In a two-page text, they demanded the justices change the decision, or they would become “military objectives.”
Principle 17 notes that “a charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure.” It also states that “The judge shall have the right to a fair hearing,” a right that has also been under siege.
Several Guatemalan justices and prosecutors, especially those prosecuting corruption, have been harassed, jailed, or forced into exile. One of those justices, Miguel Ángel Gálvez of Guatemala’s Court for High-Risk Crimes, has faced fierce harassment since he ordered nine former police and military officers to be tried for torture.
The Los Angeles Times recently wrote about the threats of violence and imprisonment towards Gálvez from allies of Guatemala’s President, Alejandro Giammattei. This type of behavior is becoming normal in Guatemala ever since the International Commission Against Impunity in Guatemala (CICIG) was expelled from the country in 2019.
Another instance of Principle 17 abuse is Guatemalan attorney Virginia Laparra, who worked with CICIG and was imprisoned for abuse of authority and false testimony on February 23, 2022. Her accuser was a judge she had been investigating for improper conduct.
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Arrest Threats and the Removal of Immunity
Threats of arrest and the removal of judicial immunity are a particular problem for those justices involved in anti-corruption cases. Guatemalan judge Erika Aifán is a textbook example. As the Justice of the Juzgado de Mayor Riesgo, which handles high-impact cases, she is supposed to have legal protection.
However, she has been subjected to complaints and denunciations by those people affected by her decisions. The most impactful have been the attempts to remove her judicial immunity since CICIG was eliminated in 2021.
Justices in various countries have also been pressured to leave or have been expelled from office in violation of Principle 18. This principle states that “Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.”
A practical example of the violation of Principle 18 occurred in El Salvador. In El Salvador, President Nayib Bukele and his allies in the legislature arbitrarily replaced certain Supreme Court justices whose views they did not agree with and passed laws to dismiss several hundred lower-level judges and prosecutors. These Supreme Court justices then turned around and ruled that Bukele could run for re-election, despite a constitutional prohibition against serving consecutive terms in El Salvador.
The Attacks on Judicial Independence Reduce Support from the Public and Protect Corrupt People
All of these actions to attack justices serve not only to “cleanse” the bench from a political standpoint, but also to delegitimize the judicial branch so that it does not have the support of the populace. In Colombia and other countries, leaders of other branches have accused the justices, particularly those in the Jurisdiction for Peace (JEP) Court, of being political. They have urged people to ignore the Court’s rulings or restructure the judicial system so they can get a more favorable ruling.
Judicial appointments to higher courts that are based on political factors rather than objective ones can lead to further public alienation. This practice also leads to less qualified and corrupt judges as skill and experience are not considered the important criteria for selection.
In addition, the best justices may withdraw from the selection process. The balance between maintaining judicial independence and finding ways to sanction corrupt justices is challenging.
Overall, the problem with judicial immunity is that while it protects judges trying to fight corruption and crime, it also protects corrupt judges. Ideally, it should be linked to a justice’s legitimate activities, not criminal activity.
Efforts to Support the Judiciary
There have been some efforts to reinforce Judicial independence. For instance, the presidents of all the High Courts of Colombia – the Constitutional Court, the Supreme Court, the Council of State, the Council of the Judiciary and the Special Jurisdiction for Peace – released a joint statement on August 3, 2020, to insist on the independence of the judiciary.
They were supported by external organizations in their efforts. In March of 2022, the Colombian Commission of Jurists (CCJ) and the International Commission of Jurists (ICJ) called on the government of Colombia to respect the Constitutional Court’s judicial independence and protect its members from violence after a decision decriminalizing abortion. Likewise, the International Observatory on Guatemala declared, “We call on the competent national authorities to refrain from continuing acts of criminalization and intimidation against justice operators.”
International Efforts Yield Mixed Results
The problem for local organizations seeking judicial independence is that structural inequalities within their own countries do not give them the political clout they need. One strategy that has had mixed results is looking for external support from other countries. Until the last few years, Guatemala was touted as an example of how domestic institutions could partner with international organizations and other countries to fight corruption and impunity.
The International Commission against Impunity in Guatemala, known by its Spanish acronym CICIG, was funded by the United Nations, the United States, and the European Union to bring corrupt officials to justice and help strengthen the rule of law. It worked successfully with Guatemalan agencies from 2007 to 2019.
However, the help from abroad also meant that CICIG depended on politics of other countries. When Donald Trump, Jr. became president and showed little interest in CICIG, Guatemalan President Jimmy Morales was able to end CICIG without fear of the consequences.
A Non-Independent Judiciary Leads to Several Legal Problems
The consequence of a non-independent judiciary is greater impunity for powerful criminals, especially for political crimes like corruption or election fraud. It can also lead to constitutional courts making decisions based on powerful allies’ politics and religious beliefs, rather than legal principles and precedent. Failing to protect judges and prosecutors means that a legal system is in name only, and neither citizens nor legal professionals can be confident that their most basic rights will be protected.
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