SUPREME COURT SELECTION: HIGH STAKES FOR RULE OF

C O N F I D E N T I A L SECTION 01 OF 03 GUATEMALA 000454

SIPDIS

DEPT PLS PASS TO USAID LAC/CAM - K.SEIFERT

E.O. 12958: DECL: 05/08/2019
TAGS: PGOV KJUS SNAR PINR GT
SUBJECT: SUPREME COURT SELECTION: HIGH STAKES FOR RULE OF
LAW REFORM

REF: GUATEMALA 170

Classified By: Pol/Econ Counselor Drew Blakeney for reasons 1.4(b,d).

Summary
--------------

1. (C) The Guatemalan Congress recently set aside draft
legislation that would have cast much needed sunlight on the
selection process for the next Supreme Court, which is to be
selected not later than October. Congress will soon
establish a nominating committee to select the 13 new
magistrates via the current opaque process. The slate of
candidates the commission produces will likely be the product
of a negotiation between the governing UNE party and an
exceptionally influential private individual, Roberto Lopez,
who has ties to the FRG. CICIG and the Attorney General's
Office believe that approximately half of the current,
outgoing court is corrupt, and that some of its members are
in league with narcotraffickers. The integrity of the
incoming Supreme Court is important because the court will
influence rule of law reform efforts as well as the fight
against organized crime. End Summary.

New Supreme Court to be Elected
--------------

2. (C) The 13 magistrates of the Guatemalan Supreme Court
are elected for five-year terms. The current court's term is
drawing to a close, and a new group of magistrates is to be
elected not later than October of this year. The UN-led
International Commission Against Impunity in Guatemala
(CICIG) estimates that six of the 13 current magistrates are
corrupt. CICIG officers and Secretary General Gloria Porras
(protect) of the Attorney General's Office separately told
Pol/Econ Counselr that they believe at least two of the
current agistrates, Edgar Raul Pacay Yalibat and Augusto
Eleazar Lopez Rodriguez, receive regular payments from
narcotraffickers.

Judicial Reform? No Thanks.
--------------

3. (C) In addition to being the country's ultimate court of
appeals, the Supreme Court administers the court system,
including budgets and judges' assignments and promotions. It
therefore has a determinant role in approving or denying much
needed reforms to the judiciary. The current court has taken
an obstructionist approach to ongoing negotiations with CICIG
on the possibility of constituting specialized, hardened
courts that would afford protection to judges and prosecutors
trying narcotrafficking and other potentially
life-threatening cases. It allegedly has at least $20
million in "savings," which Acting President Eliu Higueros
told the Ambassador will eventually be used to build a new
Supreme Court building. Asked whether some of that money
could be used to protect vulnerable rural judges, police, and
prosecutors who are confronting narcotraffickers, Higueros
demurred (reftel). Many speculate that the current
magistrates are embezzling some of the interest on the
savings, and that they have been unable to come to agreement
on electing a Court President because they are fighting over
the money.

Sunshine Shut Out
--------------

4. (C) In part because the next court will play a decisive
role in rule of law reform, left-leaning, reformist
Congresswoman Nineth Montenegro introduced a bill in Congress
that would have made the Supreme Court selection process more
transparent. Specifically, her legislation would have:
Barred from service on the congressionally-appointed
QBarred from service on the congressionally-appointed
selection committee persons with criminal records; mandated
that the committee evaluate Supreme Court candidates'
professional performance; and made public candidates' names
so that they could be exposed to public scrutiny. In early
May, Congress removed Montenegro's bill from its agenda.
President of Congress Roberto Alejos (of the governing UNE
party) publicly said that, with the current session of
Congress drawing to a close on May 15 and several other, high
priority items pending, there was not time to consider the
transparency bill. Montenegro and several other pro-reform
Members of Congress told Pol/Econ Counselor that Alejos had
the option of calling an extraordinary session of Congress in
June to consider the bill, which could have been passed prior
to the legally mandated deadline of mid-June for constituting

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the Supreme Court nominating committee.


5. (C) Montenegro, Guatemala Bench Congresswoman Rosa Maria
de Frade, and Congressman and former President of Congress
Jorge Mendez Herbruger separately told Pol/Econ Counselor
that there are a variety of interests at work that prefer
that the process remain opaque. It appears that the
governing UNE party and center-right, opposition FRG are now
working to reconcile their lists of potential magistrates
that will be submitted to the nominating committee for
review. (Note: The nominating committee is to be named by
Congress, and consists of representatives of the lawyers'
guild, academia, and appellate court judges. It will forward
a list of 26 candidates to Congress, from which Congress will
choose the 13 new Supreme Court magistrates. End Note).
UNE, FRG, and possibly other collaborators have legitimate
political interests in appointing politically sympathetic
magistrates to the court. The UNE's list is widely rumored
to have been developed by First Lady Sandra Torres de Colom.
The FRG's list was developed by wealthy businessman Roberto
Lopez Villatoro, popularly known as "The King of the Tennis
Shoes."

The King of the Tennis Shoes
--------------

6. (C) Lawyer Roberto Lopez Villatoro is reputed to be a
smuggler of licit goods, such as televisions and tires, and
additionally is said to import counterfeit tennis shoes,
mixing them among the brand-name shoes in his chain of
Payless Shoe stores. He is also the former son-in-law of
former de facto President Efrain Rios Montt of the FRG, and
heads an NGO called "Justice for Change." Lopez developed
the FRG's list of candidates. He told Pol/Econ Counselor
that his slate of candidates would win election to the court,
and to underline his point, noted that his slate won election
to the leadership of the Lawyers' Guild. Lopez offered to
remit his list of candidates to the Embassy for narcotics
vetting. Pol/Econ Counselor responded that the Embassy might
vet his candidates, but for the full range of crimes, and
that we would not disclose details of any derogatory
information we might provide. Lopez never submitted his
list. Congresswoman de Frade, Congressman Mendez Herbruger,
and other informed observers privately told us that Lopez has
methodically developed a network of judges, some of whom he
sent abroad for graduate legal study, who do his bidding. De
Frade said the FRG openly sells judicial decisions on
Congress's floor. Lopez's judges then execute the decisions.
Mendez Herbruger said Lopez's judges facilitate his
smuggling operations.

Reform Needed?
--------------

7. (C) Views differ on whether the current Supreme Court
selection process needs reform. Carlos Larios Ochaita,
former Supreme Court President and General Counsel to
President Colom, told Pol/Econ Counselor the current
selection process is working well. Guatemala is a small
country, and the few dozen jurists who are sufficiently
accomplished to become candidates for the Supreme Court are
well known within the legal community. There is no reason to
vet professionals whose work is already well known to peers.
Larios Ochaita objected to Montenegro's draft reform
legislation, saying it was presented too late and was in any
case unconstitutional. He would advise President Colom
Qcase unconstitutional. He would advise President Colom
against signing such legislation even if it passed, he said.
(Comment: while Larios is smart, we believe he has his own
agenda, and do not fully trust him.) Congresswoman
Montenegro told Pol/Econ Couns that it was fine for the
government to work with allies to stack the bench with
magistrates who empathize with it politically. However, some
were taking advantage of the opaqueness of the process to
also nominate magistrates who would protect narcotraffickers
and other organized criminals. Subjecting candidates' names
to public scrutiny might help to filter out those with links
to organized crime, she opined.


8. (C) Secretary General of the AG's Office Gloria Porras
said her own experience as a candidate for the Supreme Court
highlighted the need for reform. Advised to lobby Congress
for a seat on the court, she met with Congressmen from the
FRG, who asked whether they could count on her to defend the
FRG should a case against it ever arise. On her second trip
to Congress, a senior congressional leader had asked that she

GUATEMALA 00000454 003 OF 003


sleep with him in exchange for his support.

Comment
--------------

9. (C) It is not surprising that the government wants to
influence the Supreme Court selection process so as to
produce a politically sympathetic court. In its effort to do
so, the governing UNE and its congressional allies set aside
Montenegro's transparency legislation, and will soon begin
the process of selecting the Supreme Court (as well as
appellate court judges) via the standing, opaque process. It
is in the USG's interest to ensure that the new court is less
corrupt and has fewer ties to narcotraffickers than the
current one. Doing so is important not only because of the
sensitive nature of some of the cases the next Supreme Court
will decide, but also because of the Supreme Court's
administrative function. Guatemala's courts are corrupt and
vulnerable to narcotraffickers' influence. CICIG and the
Embassy are working to change that, for which we will need
the support of the next Supreme Court. We will continue to
use our influence to ensure the cleanest possible outcome,
including using public concern about the May 10 Rosenberg
murder to press the GOG and opposition to approve the law
(septel).
McFarland