Court-Ordered Politics: The Influence of Guatemala's Constitutional Court in Elections

Edgar Ortiz Romero

Universidad Francisco Marroquín

As Guatemala prepares for its general elections on June 25, a worrying pattern has surfaced: the Constitutional Court (CC), initially mandated in 1985 to prevent excesses of the political branches, has progressively become a decisive player within the political scene. Its growing influence reached a notable apex during the 2019 elections with the controversial exclusion of four presidential candidates. Yet, in the elections of 2023, the CC's role has become even more pivotal: it has determined the fate of five presidential tickets with seemingly inconsistent rulings that favored some while excluding others.

The recent behavior of the CC raises pressing questions about its neutrality and the consistent application of legal principles. The court's selective doctrinal maneuvering around ambiguously worded constitutional provisions has seen it align its rulings on two presidential tickets aided by the standards set by the Inter-American System of Human Rights, while blatantly sidestepping the same guidelines for the other three. 

On a broader scale, Guatemala has been identified by the V-Dem indices as having suffered rapid autocratization over the preceding three-year period. However, this process has not followed the usual trajectory of power consolidation under a single party or ruler. It is instead characterized by intense political fragmentation. Currently, 19 parties hold seats in Congress—a number that is likely to increase in the next legislative session. This fragmentation, coupled with the prohibition of Presidential re-election, disrupts the incumbent party's capacity to retain power. The situation is further exacerbated by the government's strikingly low approval ratings—currently, the president's approval rating is at 11.4%.

In what follows, I argue that the CC's increasingly partisan role and the inadequacy of horizontal and diagonal institutions to check the power of the ruling coalition undermine the democratic principles of Guatemala's electoral system. In so doing, I will discuss the set of court cases that show the selective doctrinal maneuvering that resulted in the exclusion of three of five challenged presidential tickets. It goes without saying that these decisions will be pivotal to the outcomes of the forthcoming elections.

An Unprecedented Ruling

On May 21, an unprecedented ruling by the Administrative Litigation Court led to the suspension of the center-right political party Prosperidad Ciudadana from the upcoming elections, primarily due to irregularities discovered within the party's internal assemblies. Interestingly, these irregularities were initially affirmed by the Guatemalan electoral authority more than half a year ago. As a result, the 1351 Prosperidad Ciudadana candidates for congressional and mayoral posts, but especially, Carlos Pineda, the party's presidential candidate, were suddenly excluded from the electoral race. While Prosperidad Ciudadana has a minor role in Guatemalan politics, Pineda was leading the polls at the time of the ruling. He had consistently positioned himself as an independent candidate who was simply using the party as a platform to participate in the elections while attacking the traditional political elite. 

In a departure from standard procedure, the CC had the last word and dismissed Pineda's appeal against the injunction on May 26, thereby confirming his exclusion from the elections. The decision was highly controversial because legislation establishes a window of thirty days to file an Amparo (i.e., an individual constitutional complaint). In this opportunity, the case was filed 6 months after the irregularities were affirmed by the Guatemalan electoral authority. Nonetheless, the CC still adjudicated the appeal.

The CC justified this decision on the grounds of preserving "public interest" and "electoral integrity," while overlooking the 30-day window limit to file amparos, which raises potential concerns over legal certainty. Yet the CC did not provide a detailed explanation of what "public interest" and "electoral integrity" mean. This ruling is part of a series of decisions on presidential tickets that have been disputed, casting a shadow over the CC's impartiality in the presidential election process. 

In addition to this decision, the CC has been involved in four other critical cases involving presidential tickets that were challenged since its registration by the electoral authority.

Two of those decisions were notably marked by a pro-democracy and pro-political rights approach and clearly adhered to the standards of the Inter-American Human Rights System (IAHRS). These decisions confirmed the participation of presidential tickets from the center-left UNE party and the right-wing Valor-Unionista coalition. However, for no apparent reason, a more stringent stance was observed towards political rights in the cases involving far-left MLP and right-populist Podemos parties.

CC's Human Rights-Aligned Approach: The UNE and Valor-Unionista Cases

The UNE party's presidential ticket faced a challenge due to the vice-presidential candidate, a former evangelical pastor, potentially violating a constitutional provision that barred religious ministers from running for high office. However, the CC ruled favorably on May 11, stating that a religious minister, upon resignation, would no longer be subject to this prohibition. Their decision was bolstered by the fact that the candidate was not registered as a minister in the public registry of churches.

Similarly, the candidacy of Zury Ríos (the daughter of former de facto leader General Efraín Ríos Montt) from the Valor-Unionista coalition came under scrutiny due to a constitutional provision contained in article 186 § c that prohibits immediate family members of de facto rulers from running for office. Despite previously disqualifying Ríos in the 2019 elections, a different panel of CC judges allowed her candidacy in May 2023. They made a clear pro-human rights argument in terms of the right to participate in government and the right to stand for election referencing article 25 of the International Covenant on Civil and Political Rights (ICCPR) and article 23 of the American Convention on Human Rights (ACHR).

Despite the reasonable approach of the CC in these two cases, its subsequent decisions regarding the far-left Movimiento de Liberación de los Pueblos (MLP) and the right-wing Podemos cases revealed a less consistent application of the law.

Inconsistent Application of Law: The MLP and Podemos Cases

During the registration period, on February 2, the far-left MLP had their presidential ticket registration denied due to a pending legal complaint against their vice-presidential candidate, Jordán Rodas. The complaint was filed by the Comptroller's Office, an entity overseeing state fiscal interests, which can exert significant influence during elections.

The power to disqualify candidates, which previously primarily affected mayoral and congressional elections, extended to presidential tickets regarding 'solvency' requirements mandated by legal changes in 2011 and 2016. Such modifications required candidates to obtain a 'solvency' confirmation from the Comptroller's Office to participate in elections. This shift has led to an uptick in disqualifications: the TSE reported one such case in 2011, 26 in 2015, and 25 in 2019. 

In a ruling issued on May 2, in the MLP case, the CC stated that disqualifying candidates based solely on pending legal complaints did not contravene the American Convention on Human Rights. The Court reasoned that Guatemala's commitments to the Inter-American Convention Against Corruption and the United Nations Convention Against Corruption necessitated maintaining public trust in official integrity. However, the decision dedicated minimal space to articulate arguments related to human rights contained in international treaties. With this ruling, the exclusion of the MLP's presidential candidate from the election was confirmed by CC.

The Podemos party case took a different route. Presidential candidate Roberto Arzú was disqualified on February 6 due to a perceived lack of "suitability" as stipulated under Article 113 of the Guatemalan Constitution. The Supreme Electoral Tribunal justified this decision by citing potential administrative infractions associated with premature campaigning.

The CC affirmed Arzú's disqualification on May 25. It justified the ruling by stating that a public reprimand by the electoral authorities was sufficient to cast doubt on his "suitability," even in the absence of an official sanction following due process. In stark contrast with the decisions on the UNE and the Valor-Unionista cases described above, in this decision the Court did not make any reference to human rights.

The utilization of the "suitability" requirement as a factor for disqualification is not a new practice, but its increasingly arbitrary application is concerning. This requirement was initially invoked in 2015 to prevent former president Alfonso Portillo from running for a seat in Congress due to past convictions for money laundering conspiracy. However, its application has become increasingly precarious as, for the first time, a candidate was disqualified for "potential" administrative infractions under the suitability clause, as was the case with Podemos. In the past, this requirement had been applied based on formal petitions to strip immunity, initiate a criminal case, or when a candidate had a past conviction—even if they had served their sentence or completed their period of disqualification.

Ignoring the Inter-American Human Rights System

The Inter-American Court of Human Rights' (IACoHR) case law holds legal weight in Guatemalan courts, obligating them to comply with the standards set in cases such as López Mendoza vs Venezuela and more recently, Petro Urrego vs Colombia. The latter, decided in July 2020, provided explicit guidance regarding the role of administrative bodies in limiting political rights due to social misconduct. The court stated: 

"The Court reiterates that Article 23(2) of the American Convention makes clear that this instrument does not allow any administrative body to apply a sanction involving a restriction (for example, imposing a sanction of disqualification or dismissal) on a person for social misconduct (in the performance of public service or outside of it) on the exercise of their political rights to elect and be elected. This may only occur through a judicial act (judgment) by a competent judge in the corresponding criminal proceedings."

It is important to underscore that the CC did not adhere to this criterion in its rulings on either the MLP or Podemos cases, raising concerns about its consistent application of both constitutional and human rights standards. Despite aligning with a pro-human rights approach in the UNE and Valor-Unionista cases, the CC deviated from this principle when ruling on the MLP and Podemos cases. This inconsistency puts into question the Court's impartiality.

Conclusion

An analysis of Guatemala's Constitutional Court's decisions reveals that the country's democratic backsliding is not a typical case of autocratization, where power gets consolidated in the hands of a single leader or party. Instead, the Guatemalan case is characterized by a ruling coalition exerting influence over organs of checks and balances, such as the CC, to attain their objectives. This dynamic is exacerbated by the fact that the CC, comprising five primary and alternate judges, undergoes appointment every five years through a highly politicized process involving the three branches of government, the nation's principal public university, and the national bar association. 

Furthermore, as noted by Professor András Sajó in his book Ruling by Cheating, one way that illiberal democracies operate is through legal cheating. This occurs when the meanings of legal terms are subtly altered, or when clear rules are absent, enabling the ruling party or coalition to maintain a semblance of legality while pursuing their interests. The ambiguous "suitability" requirement, as discussed above, is a glaring example of such a practice. 

With Guatemala's general elections scheduled for June 25, the far-reaching consequences of the Constitutional Court's decisions cannot be understated. These rulings have exerted an important influence on the outcome of the presidential race through their authority to determine the eligibility of candidates. By virtue of their decision-making power, these rulings have played a significant role in shaping the trajectory of Guatemala's democratic future

Edgar Ortiz Romero is a Professor at Universidad Francisco Marroquín and Universidad del Istmo in Guatemala. He is also an Assistant Editor of the IACL-AIDC Blog.

Suggested Citation: Edgar Ortiz Romero, 'Court-Ordered Politics: The Influence of Guatemala's Constitutional Court in Elections', IACL-AIDC Blog (June 22 2023) https://blog-iacl-aidc.org/2023-posts/2023/6/22/court-ordered-politics-the-influence-of-guatemalas-constitutional-court-in-elections.