CICIG and the Parallel Powers

But Castresana’s biggest challenge has come from the process of choosing an Attorney General, the leading law enforcement officer in Guatemala. The framers of the 1986 Constitution intended to depoliticize the choice of Attorney General by having the deans of the law schools (along with one member from the lawyers’ guild, and another from the Tribune of Honor within the lawyers’ guild) come up with a list of suitable candidates from which the President could choose. But this has only served to politicize the elections of university deans, whose campaigns now are financed from obscure sources with the intent to secure the votes necessary to select the Attorney General. Moreover, this same process is used to select nominees for both Supreme and Constitutional Court justices. To say the least, things didn’t turn out the way the framers intended. Instead, it has allowed obscure interests to influence both the courts and the Attorney General’s office.

CICIG has played the role of ombudsman in the selection of the most recent Attorneys General, an office to which CICIG is tied by the need for a national prosecutorial arm. An investigation into the backgrounds of the six candidates selected for review by the nominating committee revealed that only two of them had clean records. Castresana informed President Colom of this fact, and then went public with the information. The Constitutional Court agreed with Castresana and ordered the selection committee to reopen the search, closely examining the records of each nominee. Nevertheless, the selection committee resubmitted the exact same list to the executive office and President Colom selected an Attorney General with a tarnished record.

Castresana resigned in protest, stating that he was not getting sufficient cooperation from the executive and legislative branches to help achieve the rule of law in Guatemala. In response to the surprise resignation of Castresana, the Constitutional Court annulled the selection and ordered that a new selection committee be formed. Publicly embarrassed, the President begrudgingly accepted the court’s decision and dismissed his new Attorney General after fifteen days.

Castresana once had said, “At times I feel tempted to just throw in the towel, but the truth is that this kind of a mission has to come without a towel.” But President Colom’s choice of a knowingly tarnished candidate for Attorney General was, perhaps, the last straw for Castresana. It was like throwing that towel right in his face. He lamented of Guatemala, “The patient won’t take his medicine, and a sick man who won’t take his medicine often ends up dying.”

The Secretary General of the United Nations appointed a new Commissioner for CICIG, the Attorney General of Costa Rica, Francisco Dall’Anese, known for having investigated and tried two former presidents for corruption and for his tough stand against drug traffickers. He assumed the leadership of the Commission on the first of August, 2010. From that date he had a year and a few months before CICIG’s mandate is set to expire. It could be renewed at that time by the Guatemalan government. Yet, it should be noted that at that time the nation will be in the midst of a presidential election and its attendant frenzy.

The American Ambassador Stephen McFarland, a strong supporter of CICIG, worried in an interview with this writer, “A year and a few months is not whole lot of time to advance enough so that success against impunity is guaranteed . . . But ultimately it depends not on the imposition from outside but an acceptance by the Guatemalans.”

Since this article was originally written, both CICIG and Dr. Carlos Castresana have remained in the news. Castresana has been accused by a former investigator of CICIG of having blocked an investigation into one Carlos Vielmann, former Interior Minister under the administration of President Óscar Berger. Vielmann is suspected of complicity in the murder of seven inmates of El Pavon prison during an assault to retake control of that facility in 2005. He is also accused of preventing the investigation of Interior Minister Vielmann’s possible role in the 2008 murder of three Salvadoran representatives to the Central American Parliament.

Castresana’s accuser, former CICIG investigator Guiselle Rivera, has herself been accused by CICIG, under the current leadership of Director Dall’Anese, of “unfaithful representation, double representation and concealment.” The immunity from prosecution that she held as a member of CICIG has been rescinded and she currently is facing an international arrest warrant.

Castresana and Dall’Anese both state that these accusations are an attempt to discredit CICIG and the work it is undertaking.

In this confusion of accusations and cross-accusations it is believed by some observers that the charges against CICIG should be investigated. According to a report by the Inter Press Services (IPS), Marco Antonio Canteo, of the Guatemalan non-governmental organization Comparative Studies in Penal Sciences, believes that Castresana “should be investigated, because it is healthy as well as necessary.” Further stressing that “the commission should have everyone’s support because, for the first time in the country’s history, investigations have targeted people for whom it would have been unthinkable in the past.”

For his part, Vielmann, who escaped to Spain just prior to his impending arrest in Guatemala, has denied the charges. He has sought refuge in Spain and obtained Spanish citizenship through the legacy of his Spanish grandparents.

Dall’Anese has now presented formal accusations against Vielmann here in Guatemala and is soliciting his extradition. The case remains pending in Spanish courts.

What remains pending in Guatemalan courts is, arguably, even more interesting. Currently three of the top four candidates for the presidency of Guatemala appear to be prevented from running for the office by the Constitution. Specifically by Articles 186 and 187 which ban both former presidents and their family members from holding the post. That battle, which would affect Sandra Torres de Colom (the current president’s wife), Zury Rios (daughter of former dictator Efraín Rios Montt) and Álvaro Arzú (a former president), will be decided by a new Constitutional Court due to be selected shortly.

The Constitutional Court has five members, each serving a five-year term. One is elected by Congress, one by the Supreme Court, one by the Superior Council of the University of San Carlos and another by the professional Bar Association. The fifth is selected by the President.

One would not be unwise to suspect that certain parallel powers might influence the eventual make-up of a court that may well rule on the constitutional legitimacy the next president. Further, President Colom has already declared that his choice of candidate will not be shared with the public.

Fijese.

This story was first published in The Fall 2010 / Winter 2011 issue of ReVista – Harvard Review of Latin America. It is reprinted here with the permission and revisions of the author. La Cuadra encourages you to visit The Harvard Review online at www.drclas.harvard.edu/publications/revistaonline/