Democracy vs. Unbridled Attorney-General Authority

By Sir Ronald Sanders

Recent events in the Central American country, Guatemala, underscores why organs of government in any country should have oversight bodies that have the authority to curb rogue behaviour by office holders. These events also demonstrate why legislation should be carefully drafted and reviewed before being passed into law.

Over the last year, the public ministry and the attorney-general of Guatemala have been  pursuing legal manoeuvres to undermine the Semilla Party and its leader Bernardo Arévalo, who convincingly won the presidency of the country at runoff elections in August. Because of a lag period between the elections and installation of the new executive, Arévalo and his vice-presidential running mate, Karin Herrera, cannot take office until January 14, 2024.

This interregnum provided time for mischief by forces, including the attorney-general and the public ministry to try to disqualify Arévalo and Herrera from assuming their elected positions.

These actions included undermining the rule of law and the rights of Guatemalans by arbitrary arrests and constant attempts to persecute opposition leaders and human rights defenders. The Inter-American Commission on Human Rights (IACHR) has repeatedly expressed alarm that, particularly since the year 2021, there has been intense criminal prosecution and persecution by the public prosecutor’s office against people who have performed work of special relevance for democracy, such as journalists, justice operators, human rights defenders, student organizations, officials of electoral bodies and members of political parties.”

The attorney-general, María Consuelo Porras, is protected by a sinister law which prohibits her removal from office, except upon conviction for an intentional crime. This protection is enshrined in Article 14 of the Public Ministry Law of 2016. But “intention” is extremely difficult to prove; it requires the almost impossible task of reading the mind of a person to determine that any action taken was “intentional” or planned. Armoured with this protection the attorney-general and her public ministry have been waging what appears to be a campaign of abuse of the law to achieve their objectives, of which the principal one appears to be stopping the installation of Bernardo Arévalo and Karin Herrera as president and vice president of the country.

In the course of all this, the public ministry has seized ballot boxes from the July and August elections, breaking the chain of custody in violation of the electoral laws of the country and contaminating the sanctity of the votes. Additionally, magistrates of the Supreme Electoral Tribunal (TSE) have had their immunities removed. Three of them have fled the country in fear.

The public ministry claims that they sought to remove these immunities because of suspicion of corruption in the purchase of a computer programme for the transmission of preliminary results. However, on October 31, the TSE had certified the results of the elections, confirming the election of Arévalo and Herrera.

This issue of the unfettered power of the attorney-general is one that concerns many people, including civil society and human rights groups in Guatemala. It is of great concern to the Semilla party and the president-elect and vice president-elect, who recognise that, even after they assume office on January 14, there is little or nothing they can do about the behaviour and power of the attorney-general.

In October, the Semilla Party filed a case on this matter at the Constitutional Court, fearing that, if Article 14 of the 2016 Public Ministry law, is not declared unconstitutional, the attorney-general and the public ministry “will continue illegal acts”. Their hopes were dashed on December 20, when the Constitutional Court ruled that Article 14 is not unconstitutional, leaving the Attorney General free rein to implement policies and actions of her sole making.

After visiting Guatemala, as chair of the Permanent Council of the Organization of American States (OAS), I advised the Council on December 20 that, “Given the history of the public ministry’s arbitrary behaviour, this case is one to which the permanent council may need to pay close attention, even after the transfer of executive power.”

Arévalo and Herrera look set to be installed as president and vice president on January 14, despite the antics of the attorney-general and the public ministry. Assurance of this was given on December 14 by the Constitutional Court which rules that: investigation by the public ministry cannot prevent the completion and results of the electoral process; demanded that the Congress and its directing board are obliged to guarantee that all elected persons take their positions in accordance with the certification of the results made official by the Supreme Electoral Tribunal; warned all authorities that they must comply with the installation of the new executive; and stated that any persons who do not comply with the rulings will incur civil and criminal liabilities.

However, it is unlikely that the attorney-general, who is legally accountable to no person or oversight body, will cease a campaign which, in the view of some in Guatemala is, at best self-righteous, and at worse malicious. Her actions and those of the public ministry appear set to be a destabilizing force for the new executive from its first day in office.

But as the IACHR pointed out: “Respect for democracy entails ensuring the validity of a model of checks and balances in which the different state functions correspond to separate, independent and balanced bodies, so as to allow the necessary limits to the exercise of power and, in turn, to avoid arbitrariness.”

The member states of the OAS, which includes the countries of the Caribbean Community (CARICOM), must maintain a vigilant eye on Guatemala in terms of trying to ensure that the absence of limits and oversight on the attorney-general and the public ministry, do not give a license to overturn the will of the electorate; the majority of whom voted for a new executive led by Arévalo and Herrera.

At risk is the validity of the people’s vote and democracy itself.