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PART 9: THE LAWLESSNESS OF GUATEMALA’S JUSTICE

THE CASE OF CONGRESSMAN FERNANDO LINARES


The Facts

In late 2016 Ivan Velásquez, the chief of the International Commission Against Impunity in Guatemala (CICIG), initiated a project to change Guatemala’s constitution . His close collaborator in this effort was Guatemala’s justice minister, Thelma Aldana.

On November 24, 2016, Velásquez and Aldana announced at a press conference that they would attend the November 28 session of Congress, at which their proposed changes would come to a vote.

On November 26 a member of Congress, Fernando Linares, petitioned Guatemala’s highest judicial body, the Constitutional Court, for an injunction barring Velásquez and Aldana from attending the session of Congress. Linares’s brief argued that Velásquez, as a foreigner, could not interfere in the country’s political affairs; and that his presence at the session, along with Aldana’s, would be an attack on Congress’s independence.

The high court rejected Linares’s petition on grounds that it was technically flawed. Thereby the court violated the law of injunctions, which stipulates in Article 22 that petitions will be admitted and that petitioners will be given time to correct any faults.

In the meantime, Velásquez and Aldana – accompanied by the country’s human-rights ombudsman, Jorge de León – did attend the session of Congress at which the CICIG’s proposals for constitutional changes were to be put to a vote.

At that session, Congress did not approve the proposals and, against parliamentary procedure, tabled them for future consideration – thereby putting the matter into stasis. While not frontally barring the efforts of Velásquez and Aldana, Congress was not cooperating in their effort to change the Constitution.

Accordingly, the contest went back to the judicial branch. The Constitutional Court referred Linares’s petition to the country’s second-highest or Supreme Court, which on December 15 served the CICIG with a demand to answer the petition within two days.

The CICIG promptly told the court it rejected the demand, claiming that the CICIG was protected by diplomatic immunity and, hence, could only be enjoined through the Foreign Ministry.

For the court, the CICIG’s counter was not a proper response. Therefore it was obliged to grant Linares’s request for a temporary injunction. Notably, however, the court gave no publicity to its action, informing neither Linares nor the CICIG that the injunction was in force.

Three months later, presumably after learning of the court’s action, the CICIG presented the court with an actual argument against the injunction. The court accepted this brief, despite its having been presented well after the two-day response period had expired.

On the same day the court accepted the CICIG’s brief, it notified the plaintiff, Linares, that the temporary injunction had been revoked. Linares appealed. As of this writing, the legal dispute is still in process.

Observations

  • The Constitutional Court failed to act immediately, as the law requires, on an injunction to bar outside pressure against Congress.
  • The Supreme Court accepted a filing from the CICIG three months after the window for responses had closed.
  • More than one year has passed since Linares filed his injunction request, and it has still not been resolved. This is in stark contrast to the speed with which the Constitutional Court took action against the declaration of persona non grata that President Morales levied against the CICIG commissioner. On that occasion, the court took one day to grant a temporary injunction against the president’s order; and only two days to make its injunction effectively permanent.
  • The CICIG commissioner’s diplomatic status, which that official has utilized to protect himself in court cases, also forbids his meddling in internal affairs. Pressuring members of Congress is an act of meddling.
  • Given that Velásquez and Aldana exercise a near-total control over criminal prosecution in Guatemala, members of Congress understandably interpret pressure by those officials as threats against themselves.
  • Fernando Linares was a vocal opponent of the changes to the Constitution advocated by Velásquez and Aldana, who in turn had the backing of US ambassador Todd Robinson. The US consulate canceled Linares’s US visa and, despite his request, offered no explanation for this unusual action involving a member of Congress.

Linares asserts that the US cancellation of his visa is a punishment for his having opposed the CICIG in this matter. Continuing US silence on this issue has sent an intimidating message to other members of Congress.

Legal Analysis

Article 137 of the Constitution establishes that the right to political petition belongs only to Guatemalans, effectively excluding all foreigners.

Article 10.1 of the agreement between the UN and Guatemala creating the CICIG grants its commissioner diplomatic status – a status, in turn, that makes the commissioner subject to the Vienna Convention, whose Article 41 expressly prohibits meddling in a host country’s internal affairs.

The commissioner’s actions in promoting changes to the Constitution went far beyond simple meddling. They were criminal and subversive acts.

According to the Constitution, the justice minister can only perform functions that are specifically mandated by the Constitution. That document does not permit the justice minister to propose constitutional changes. For those reasons, the justice minister exceeded her authority by attending sessions of Congress and thereby pressuring members to vote for the proposed changes.

The gravity of this last point is underlined by the minister having announced possible criminal charges against some members of Congress.

Members of the UNE party were the formal presenters of the proposals to change the Constitution; but it was well established and publicly known that the justice ministry had conceived of the changes and presented them to the UNE – meaning that party acted as a “front organization,” which violates the Constitution and its Article 277.

If the rule of law prevailed in Guatemala, Velásquez and Aldana could be charged with abuse of authority, dereliction of duty, usurpation of functions, and constitutional violations. They could also face charges of extortion for having threatened members of Congress to vote for their proposals.

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