Fighting the Good Fight: Litigating Foreign Relations, International Law and Corruption at the Constitutional Level in Guatemala

[Carlos Arturo Villagrán Sandoval is a PhD Candidate at Melbourne Law School. His doctoral thesis considers Comparative Regional Integration with particular emphasis on Central-America. He is currently representing civil society actors in a constitutional injunction against the Presidential decision to denounce the CICIG treaty.]

The CICIG is a pioneering international body, created between Guatemala and the UN, with broad reaching effects in the Guatemalan domestic legal system and with the mandate to fight corruption within the Guatemalan state. After 11 years, the prosecution of a former President, a former Vice-President and many other high-level officials, and with the current President’s family is being tried for fraud claims investigated by CICIG, CICIG became victim of its own success.

The CICIG creation treaty arose from Guatemala’s incapacity to deal with corruption within the state. After long negotiations, in 2007, Guatemala ratified the CICIG treaty with the approval of Congress and the Constitutional Court. The treaty enables CICIG to investigate and prosecute individuals, together with the National Prosecutors’ Office and under supervision of the judiciary. CICIG also has the capacity to promote reform for the Guatemalan legal system, at both ordinary and constitutional levels. CICIG had a two-year mandate, renewable at the request of Guatemala.

During its 11-year life span, CICIG has been led by three commissioners. However, it was not until the third commissioner, Iván Velásquez from Colombia, that CICIG achieved major success. In 2015, Velásquez uncovered a corruption ring involving the then President and Vice-President. This led to the resignation and prosecution of both dignitaries, a feat never seen before in Guatemala. Soon after, CICIG revealed other corruption rings, gaining broad support from civil society. The CICIG was quickly endorsed by Presidential candidates, including today´s President, Jimmy Morales, who vowed to support it if elected.

After Morales took office in January 2016, CICIG revealed a series of fraudulent acts by the President’s son and brother, as well of others within their inner circle. This created animosity between the new President and CICIG, and derailed a constitutional reform process initiated by the CICIG to strengthen the judiciary. Things got personal when, on 26 August 2017, CICIG charged President  Morales with using illicit sources to fund his presidential campaign. The next day, the President declared the Commissioner “persona non-grata” under article 9 of the Vienna Convention on Diplomatic Relations. After public outcry the Constitutional Court declared the President’s decision unconstitutional on the grounds that only the UN Secretary-General is able to remove the Commissioner, and that article 12 of the CICIG treaty required that any dispute regarding the interpretation of the CICIG treaty be resolved by negotiation between the UN and Guatemala..

Following the Constitutional Court´s ruling, the President pressured the UN Secretary-General to remove Velázquez. At the UN General Assembly on 29 September 2017, the President communicated his decision to revise the CICIG treaty in order to, in his words, stop “selective prosecution and the politicization of justice”. However, the UN Secretary-General continued to support CICIG, in a statement at the Debate Marking the 15th Anniversary of the Adoption of the United Nations Convention Against Corruption.

Soon after, the Guatemalan Executive turned to the US (CICIG´s main financial donor) for help. US Senator Marco Rubio halted funding for CICIG, arguing that CICIG was “manipulated and used by radical elements and Russia”. CICIG only survived with a last minute financial contribution from Sweden, prompting the Guatemalan Executive to request the removal of the Swedish ambassador, alleging that he had interfered in a domestic sovereign issue. After protests from civil society and the Guatemalan Human Rights Ombudsman, the Constitutional Court suspended the ambassador’s removal, on grounds that it violated international law principles protected by the Guatemalan Constitution. Article 149 of the Constitution stipulates that decisions relating to foreign relations should be: a) in accordance with international principles, rules, and practices; b) with the purpose of contributing to the maintenance of peace and freedom; c) for the respect and defense of human rights; and d) the strengthening of the democratic processes and international institutions that guarantee the mutual and equitable benefit between the States. According to the Court’s case-law, any act of foreign relations, whether by the Executive or Congress, is reviewable under this provision of the Constitution.

On 31 August 2018, the Guatemalan President decided not to renew the CICIG treaty, which expires in September 2019, breaking his electoral promises. In a later move, on 14 September, he stated that, “in the interests of the nation”, the Commissioner should not be allowed to return to Guatemala. Once again, the Constitutional Court held that this decision was unconstitutional, as it violated the CICIG treaty and the immunities it affords to the Commissioner. The following day, the Ministers of Interior and Foreign Relations and the Solicitor General resisted the Court’s ruling, requesting the UN Secretary-General to appoint a new Commissioner. However, on 19 September, the Court expressly required the Executive to allow Iván Velásquez back. The Executive again defied the Court’s ruling, and on 11 October 2018 announced the non-extension of working visas to CICIG staff.

In late December 2018, the Court delivered a series of judgments ordering all state institutions to allow the re-entry of CICIG personnel. On 5 January 2019, CICIG personnel were detained at the airport, on orders from the Executive. The Court issued an order making known that non-compliance with its rulings is a criminal offence and that officials are liable to removal. On 7 January 2019, the Executive denounced the CICIG treaty arguing that, during its 11 years of existence, CICIG had violated national sovereignty and the human rights of the people it investigated. On 9 January , the Constitutional Court handed down a provisional ruling suspending the effects of the President’s denunciation of the CICIG treaty.

However, in a parallel move, the Executive and its supporters in Congress initiated an impeachment process against the judges of the Constitutional Court. On 9 January 2019, the Supreme Court resolved that there are grounds for impeachment, on the basis that the Constitutional Court’s judges exceeded their mandate in the Swedish ambassador case, intruding on foreign relations, a matter within the sole competence of the Executive.

The CICIG affair has seen the development of a new vision of constitutionalised foreign relations in Guatemala. Using Article 149 of the Constitution, the Constitutional Court has created a new monist approach to international law within the domestic legal system. These judgments have developed a doctrine that Executive actions with respect to foreign affairs are reviewable under constitutional law. As such it has created a synergy between constitutional and international law, giving individuals a direct say in Guatemala’s foreign relations before domestic courts, if they are affected, or when Guatemalan officials and institutions act contrary to international law. It has created a scenario where international law instruments, such as the Inter-American Democratic Charter and American Convention on Human Rights, become additional constitutional measures by which to review the actions of domestic actors. The Constitutional Court still needs to clarify certain procedural rationales including whether individuals are allowed to bring suits against foreign relation policies, one of the main critiques of this new approach.

Under this monist and constitutionalised vision of foreign relations, the Executive’s non-compliance with the Constitutional Court´s judgments are a violation of Article 149.At the international level, it violates the provisions of the CICIG treaty and the Vienna Convention on the Law of Treaties (articles 26, 27, 46 and 54). At the regional level, it violates provisions of the Inter-American Democratic Charter (arts 3 and 4) and is inconsistent with the jurisprudence of the Inter-American Commission and Court of Human Rights. At the subregional level, it violates the Central American Democratic Security Treaty, and is inconsistent with the case law of the Central American Court of Justice and its recognition of democracy and separation of powers as jus cogens norms of the Central American region. Lastly, at the domestic level, it violates the principle of judicial independence (Constitution art 203).

Guatemala is facing a constitutional crisis. With CICIG personnel outside of the country, Guatemalan judges have ruled out the CICIG’s involvement in criminal cases, including that of the brother and son of the President. The Constitutional Court has the capacity to declare the Presidential decision denouncing the CICIG treaty unconstitutional. However, without support from strong domestic and international actors, Guatemalan rule of law risks falling into the abyss in the face of a President determined to reject the CICIG.