Guatemala Attorney General Candidate Says Selection Process Is Flawed

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Former judge Claudia Escobar was one of 29 candidates for attorney general in Guatemala, but despite — or because of — her promise to continue investigating high-level corruption led by the Attorney General’s Office, she did not make the final cut.

Escobar spoke with InSight Crime in Washington, DC about her take on the selection process, which she says is negatively affected by political interests and entities represented by members of the postulation commission that selects the final candidates.

Escobar also reflected on the critical moment her country has reached, which is marked by President Jimmy Morales’ concerted efforts to hinder the work of the Attorney General’s Office and its United Nations-backed appendage, the Commission Against Impunity in Guatemala (Comisión Internacional Contra la Impunidad en Guatemala – CICIG), as the bodies investigate the president for possible illicit campaign financing.

Claudia Escobar was an appeals court judge for the Supreme Court of Guatemala and has lived in the United States since 2014, when she had to flee after reporting a corruption scheme involving then-President of Congress Gudy Rivera, former Vice President Roxana Baldetti and the ruling Patriotic Party (Partido Patriota – PP) as a whole.

At the time, Rivera tried to pressure Escobar into ruling on a legal proceeding in favor of the Patriotic Party and Baldetti. In exchange, he offered to use his influence to get her reelected. However, Escobar not only refused Rivera’s offer, but she also gave a recording of the conversation and attempted blackmail to the CICIG. In the end, Rivera was arrested.

In the United States, Escobar has worked at Harvard and Georgetown universities and is a member of numerous organizations that focus on ending corruption in Central America’s Northern Triangle region, which encompasses Guatemala, El Salvador and Honduras. This year, the ex-judge decided to return to her home country to participate in the selection process for attorney general. According to numerous Guatemalan sources consulted by InSight Crime, she is one of the candidates most likely to continue with the high-level corruption investigations the Attorney General’s Office is conducting. However, the postulation commission decided to eliminate her from the selection.

The commissioners determined that Escobar does not have enough criminal law experience to be the new attorney general.

InSight Crime (IC): How would you assess the selection process and the postulation commission?

Claudia Escobar (CE): The process isn’t very different from previous ones. What has been a bit different from other commissions is that they set a numerical rubric for disqualification, and if the candidates didn’t reach a certain score, they didn’t vote for us for the final list.

In other selections — at least in the last one for attorney general — we saw that even people who received low scores [on the rubric] were participating and made it onto the list of finalists. The way they designed the rubric this time, they gave a lot of weight to the field of criminal law, which is valid: a prosecutor has to be successful in criminal law because the Attorney General’s Office is responsible for criminal prosecution. But the Attorney General’s Office is also responsible for ensuring the country’s laws are obeyed, and for that, general knowledge about society and its problems is also important. And they didn’t place as much importance on that. The commissioners rated academic experience, professional experience and human impact [which has been described as a “commitment to human rights and democracy”], and they say that they need to be tested separately. And the commissioners decided that all that had to be tested in a different way, not on the basis of professional experience.

Another area they categorized within professional experience was outreach to vulnerable populations. But when one is a judge, one is by nature a human rights defender. The commissioners wanted different experiences or different documents to prove all of these things.

IC: Some in Guatemala said that the commission developed the profiles with people in mind. Do you believe they favored some candidates over others?

CE: I believe so. The commissioners are close to numerous sectors and have their interests. They’re not out of reach of the country’s problems, and many of them don’t speak for the universities they represent; they represent their own opinions. You can see this in the media, in interviews … Some have said that the presidents or superior councils of the universities gave [the commissioners] the freedom to act on their own account. They’re acting, practically, on a personal level, and they stay close to the actors they want to favor, or they want to push for certain candidates. So the rubric was designed to favor certain applicants.

SEE ALSO: Guatemala News and Profiles

IC: It’s assumed that the postulation commission is there to guarantee academic excellence, but you and many others believe that the commissioners represent the interests of specific sectors and other actors in Guatemala. How does such a commission guarantee transparency in the selection and the suitability of the person who is chosen?

CE: It’s not any kind of guarantee. The weakness of the commissions has already been brought into the open. Previous commissions made it easier for questionable judges close to organized crime to make it into the judiciary. For example, we have three supreme court judges who have been investigated for their proximity and ties to corruption.

This has all been reported since 2014, but nothing has changed. There was no reform that created another way for justice officials to be chosen. The commissions exist according to how they are established in the Constitution, and it has not been possible to change it. Yes, the commissions have evolved in some ways, or they have taken positive steps to be more transparent or open up their discussions more, perhaps allowing for more social oversight, but none of this means they have stopped playing a part in networks of elite interest.

IC: Is legal reform the only way to guarantee more transparency?

CE: Reform is needed.

IC: But that seems very difficult in this context.

CE: It is very difficult, of course. How is it possible that prestigious and historic universities, with name recognition and a responsibility to society, tell the commissioners that they can act on their own, that they don’t have to be held accountable to the universities, that they don’t have to act according to the parameters of the universities. Some basic parameters already established at the international level should be incorporated for the selection of judges and magistrates. The United Nations has already done an analysis on the parameters that must exist, for example on the issue of meritocracy.

IC: How is meritocracy measured?

CE: It’s possible for a person to have demonstrated many skills or built up a lot of experience, but despite that they’re still not suitable. Some magistrates who have gone the way of corruption have titles, they’ve been published and highly rated by the postulation commissions. These things have been considered, but it turns out they weren’t the right people for those positions. The meritocracy isn’t coinciding with the rubric. For example, the official who investigated all the corruption cases … that was prosecutor Óscar Schaad, who was in charge of the investigations into illicit campaign financing. He was only given 49 points. With 12 years of experience. And? The rubric is not the right instrument for [this process].

“The commissioners are close to numerous sectors and have their interests”

IC: And in the end, at no point during the process do they bring up the issue of the candidates’ connections with interest groups, corruption or organized crime.

CE: No.

IC: In your case, the fact that you had little experience in criminal law worked against you.

CE: That’s what they said, that my specialization isn’t in criminal law. However, I have a doctorate degree in pluralist law from the Autonomous University of Barcelona.

We’re talking about various issues that are not directly related to criminal law, but that involve experience in that branch. I’ve worked on corruption issues since taking office in the judiciary. When I worked as an attorney, I spent years studying corruption.

IC: Do you believe you were taken out of the process because you challenged corruption within the Patriotic Party, and in some way the interests of such groups are still represented in the postulation commission?

CE: I think so. It’s how they evaluated me. Yes, the accusations I made exposing the group played a part. I think the law may be well-conceived but poorly implemented.

If the commissioners had been performing their duties thoroughly, respecting legal principles, we wouldn’t have these problems, but the commissioners are acting at their own discretion. In my case, there were areas where I provided the necessary documents to show my experience. They didn’t accept those, but in other cases, they did.

Here, there were no equal rights; there was an enormous amount of discrimination because I put the commissioners under the microscope. And they didn’t forgive me for that.

IC: You mentioned the case of Óscar Schaab. Was there also discrimination there?

CE: I didn’t study [the commission’s] analysis of him. Schaab had one of the best interviews. How can it be that he had the experience, the hands-on experience, in working against corruption, yet he wasn’t awarded the minimum score the commissioners arbitrarily established, because [the scores] aren’t in the law or the regulations?

IC: In an ideal world, a candidate like that, who has conducted investigations on illicit campaign financing and corruption, would seem like a good candidate, but in a world where the person making the selection is President Morales, who is being investigated for illicit financing, it doesn’t seem possible. Could it be said that the commission is discarding candidates precisely to prevent such investigations from going any further?

CE: It’s probable. It’s not only the president who is being investigated, it’s the political parties, the businesspeople, the entire private sector. The private sector is within the legal area of economic operations, but we have also seen that there are criminal organizations financing campaigns. Various sectors have obtained commercial benefits and have contributed to campaigns and have received money from questionable sources. All those interests are represented in the commission.

IC: Are we talking about a commission that is not there to guarantee suitability, but interests?

CE: These are the paradoxes of the postulation commission, of some deans that should be guaranteeing citizens that the most capable person, the most ethical, the most honest person is going to be chosen.

IC: But they are not…

CE: No, they are not.

SEE ALSO: InDepth Coverage of Elites and Organized Crime

IC: What is at play in Guatemala with this selection in the context of the clash between traditional power groups and the Attorney General’s Office and the CICIG?

CE: It’s very serious. If the president chooses an attorney general who softens the fight against corruption in Guatemala, we will see a setback in all the investigations, and we will reach a point where it will be the law of the jungle, in which each individual will do what they want.

The problem in Guatemala is that the rule of law never really existed. In a society that is under construction, in a democracy that is beginning to rise from a civil war that left many people very hurt, this is very serious. During the war, citizens’ rights were never respected, and the interests of the contending parties were defended. We finish that with the peace agreements, and from there we create a path that we are beginning to move forward.

Since the arrival of the CICIG, we started to see signs that the rule of law was being formed, in which they began to sanction the illicit activities of certain groups. This will not continue if the person who arrives at the court or the Attorney General’s Office arrives to protect a particular sector. An opportunity would be lost for the country to build not only on the subject of criminal prosecution, but also on the major legislative reforms that are needed and on the mechanisms that prevent corruption from reaching other levels.

IC: In 2015, with the customs fraud case and the discovery of corruption within the government of Otto Pérez Molina and Roxana Baldetti, Guatemala took to the streets … With the arrival of President Jimmy Morales, it seems that everything has gone downhill. What happened?

CE: In part, investigations extended into other sectors of economic power, and when the economic sector is exposed, when it is exposed that great fortunes have been made from corruption, all this has an effect. The economic sector has come out to say that the fight against corruption is preventing the country’s economy from growing. We must not deny it, it does have an economic effect. But that’s because much of the economy is based on corruption. It’s as if thanks to the fight against drug trafficking, suddenly all the economic flow that this produces is no longer there, of course there would be a negative economic impact. But it’s not possible for us to accept that drug trafficking is Guatemala’s economic sustenance.

But beyond all this, what has happened is that the economic powers have been affected. The greatest minds of military intelligence and counterintelligence are in the Mariscal Zavala [prison], and there they are conspiring against the social movements that demand justice and respect for the rule of law. With a narrative that makes the fight against corruption look like a leftist struggle in a country once divided by a civil war, being left-wing is a crime for some groups in itself.

IC: Do you think this is a struggle between the left and the right?

CE: No, I don’t think so. It’s a narrative to weaken the fight against corruption. I, for example, am a judge who studied at Francisco Marroquín University — the most conservative university — with a liberal economic outlook. But because I demand a better justice system, they place me on the left, which is not true. But that is the narrative that has permeated, and there are those who see this as a way to discredit the whole fight against corruption.

IC: Sometimes it seems that this narrative is effective, even here in Washington, where there is a crack in the support for these anti-corruption struggles in the Northern Triangle. Do you perceive it that way?

CE: I see that in Washington there is a confrontation between the Guatemalan government and the institutions that are fighting against corruption. But it is also true that here, they do not like instability, that there are situations that they perceive can cause the country to get out of control. Then they have the false idea that by avoiding confrontation they will maintain control of the country.

What is the US interest in Central America? Issues of security, migration and drug trafficking. If Washington perceives that they can work with the government in office they will try to maintain it, that makes them support, say, both currents. That is what [US Ambassador to Guatemala Luis Arreaga] has done, but he has also argued that stability is not maintained by removing the support for a legitimate effort to build a legal system.

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