Envío Digital
Central American University - UCA  
  Number 285 | Abril 2005



Democracy? Rule of Law?

The most recent report from the prestigious Myrna Mack Foundation, summed up in these pages, raises serious doubts about the state of democracy and the rule of law in Guatemala. It also analyzes the main issues that are creating further divisions in this already sharply divided society.

Myrna Mack Foundation

The new year in Guatemala began in an atmosphere marked by contact and confrontation among the country’s various social groups and between some of these groups and the government. These conflicts threaten to leave the country even less governable in the months ahead.

Lack of dialogue,
lack of responsibility

In 2004 and the first few months of 2005, Guatemalan society once again bore witness to acts of violence in several parts of the country, provoked by conflicts that the authorities neither handled efficiently nor resolved adequately. The conflicts revealed a lack of dialogue, political responsibility and any willingness to establish and abide by a rule of law that might be a match for the influential groups in the state apparatus that hold real power in the country.

The inattention to this social conflict creates conditions ripe for confrontation, puts the country’s governance at risk and erodes the fragile process of building democracy. This in turn raises serious doubts about the kind of democracy now functioning in Guatemala and about the understanding of the rule of law among those who hold power in the country.

The inadequate policies established by President Oscar Berger’s government—especially in the area of public security—do little to help lower the conflict level. Rather than intervene effectively in the conflicts between social sectors, the government has become a central player in them.

The worst sign of these times is the obvious lack of effective communication channels among state authorities that might allow them to deal with the country’s problems. The leading figures in the executive, legislative and judicial branches clearly have a courteous relationship with each other and appear willing to cooperate, but they aren’t meeting together to make state decisions or find a comprehensive way of dealing with the multiple problems afflicting society. At least they aren’t doing so yet.

In some cases, government institutions have acted as mute witnesses to injustices, outbursts of violence and anti-democratic manifestations, and their authorities have not offered the slightest indication of concern to find long-term and comprehensive solutions.

Rule of law or
defense of private property?

The government has decided to respond with an increasingly repressive policy to the conflicts that have arisen during its term, among them a violent eviction on the Nueva Linda plantation in 2004, a confrontation around mining activities and the transport of mining machinery through Sololá and the unresolved problem of the former Civil Self-Defense Patrol members’ continuing violence. Although the government constantly uses language in defense of the rule of law, in practice this translates only into the defense of private property.

There is no such decisiveness in the government’s response to the persistently high level of crime in the country that poses a constant danger to the lives, physical integrity and property of thousands of people at risk of assault in their homes, on buses and in the streets. Nor have we seen such determination in response to organized crime, drug trafficking or the actions of the hidden powers that continue to undermine the country’s political institutionality. Moreover, the government has not acted with such firmness in cases of social injustice or the violation of constitutional rights that harm the majority to benefit powerful minorities.

In fact, it has put considerable effort and resources into neutralizing society’s growing demands and dissatisfactions. The situation in the country’s rural regions is the most troubling, as the rights of thousands of farm workers are violated on a daily basis by poor working conditions, their employers’ failure to observe the laws and even refusal to follow court orders that oblige them to make amends for the rights they have violated. This largely explains the conflictive relations that have prevailed for decades between large landowners and small farmers and farm workers. The government typically remains passive in the face of these problems, and when it does act, does so to favor the landowners.

A revealing controversy

Guatemala now lives at the mercy of a concept of a rule of law that lacks the most essential components of democracy and is being applied very unevenly to the population. It is apparently promoted by one group in the central government that has been gaining considerable influence, especially in the Government Ministry and its security structures.

A controversy that broke out recently revealed differences within the government, especially between the group around Vice President Eduardo Stein and the one led by Government Minister Carlos Vielman. The controversy arose around the actions of Edmundo Urrutia, then head of the Secretariat for Strategic Analysis, who is associated with Stein’s group. Since the early months of the administration, it was clear that Urrutia was not part of President Berger’s close circle and held onto his post only with Stein’s support. Attempts to remove Urrutia finally bore fruit in January, when some problems were discovered in his administration. Juan Carlos Villacorta, a member of Vielman’s group who had served as deputy government minister in charge of security, took over his post. This fueled speculation that Vice President Stein and his group had lost out to the Government Ministry group. More important than these suspected internal animosities, however, is the risk that the Secretariat for Strategic Analysis might end up operating as an internal security apparatus, when its priority should be strategic analysis.

The strong influence of a particular political current within the government that favors harsh measures in security and other areas of national life could explain why Berger’s administration has become a central actor in the conflicts, when its role should be to try to resolve the conflicts among social groups.

The bishops take a stand

The government’s abysmal attitude has been especially apparent in its handling of the mining issue. The Guatemalan Bishops’ Conference has taken the lead in opposing mining, and its stand on the issue sparked a debate that proved very uncomfortable for the government and the business sector.

The positions of those who have advocated granting mineral exploration and exploitation concessions without consulting the communities directly affected, as well as the government’s harsh response to demonstrations against the concessions, sparked acrid debates that initially led to confrontation rather than a search for solutions. When Cardinal Quezada Toruño and the Bishops’ Conference made statements on the issue, President Berger dismissed their opinions, thus starting a confrontation with the Catholic hierarchy as well. As has happened on numerous occasions since this government took office, Vice President Stein had to intervene to calm the waters. The incident led to the formation of a high-level commission made up of representatives from the Catholic Church, academic experts, government officials and environmentalists, among others. The political parties kept out of the conflict, although after the rhetoric had died down somewhat, some parliamentary blocs revealed an interest in exerting some kind of control over the situation.

The Guatemalan Bishops’ Conference is convinced that there is sufficient reason to be concerned about the negative effects of mining on the country’s future. The bishops believe that opening the country up to mining activities could pose serious risks to the environment as well as to the lives and health of Guatemalans, and have argued that developing the country’s neglected forestry and tourist potential would be far better options.

The bishops took such a strong stand that President Berger finally agreed to consult the population on the concession of licenses and decided not to grant new ones for the time being.

The government’s political tactlessness in responding to the bishops must be emphasized, with the President himself making a number of impertinent statements. This led the bishops to close ranks on other social issues as well. The conflict with the government brought the bishops closer together, including Álvaro Ramazzini, the progressive bishop of San Marcos, who has had little support within the Bishops Conference in recent times. The attacks by the President and other powerful sectors that support the mining projects, such as the business sector, ended up uniting all of the bishops behind Ramazzini’s positions on the deteriorating social situation of the poor in his diocese and the rest of the country.

The battle with the government created a correlation of forces in the Bishops’ Conference favorable to Bishop Ramazzini. And the government’s inept handling of the issue made the Catholic Church an important political actor able to make demands and exert pressure on authorities about the social impact of the policies the government would like to put in place.

Poorly addressed conflicts

Issues that create differences of opinion—like approval of the Central American Free Trade Agreement (CAFTA), the ongoing protests by the teachers’ unions, the persistent threats of violence from former Civil Self-Defense Patrol members or the agrarian conflicts that the state has still not addressed in a comprehensive way—hover like dark clouds above today’s horizon.

Despite impassioned demonstrations against the free trade agreement between the United States, the Central American countries and more recently the Dominican Republic, the Guatemalan Congress ratified its approval on March 10. Several people were wounded and arrested when police contingents occupied the center of Guatemala City to keep the protesting demonstrators away from the legislative building while the representatives were gathered there. After CAFTA was ratified, the protesters announced that they would hold more demonstrations to demand social measures to soften its negative impact on social and labor issues.

In addition, a 24-year-old activist died in a road block in Colotenango, Huehuetenango, most likely from bullets fired by the police or soldiers, who are again becoming quick to respond to matters of public order with their weapons, as used to be the case under the repressive governments of Lucas, Ríos Montt and Mejía Víctores.

Conflicts are inherent to all societies. They never disappear, but rather are constantly transformed and manifest themselves in new ways. Their evolution, however, depends on how the state intervenes in them, how it uses the resources offered by the political system to respond to them and what policies it proposes to handle the generation and manifestation of new conflicts.

For this reason, it is of utmost importance that the task of addressing new problems should fall to the state, and should be handled by its apparatus in an orderly, institutional manner. Only this way can we avoid situations in which conflict resolution is left exclusively in the hands of a President like the current one, who tends to hastily issue opinions that must later be “interpreted” or “clarified” by the Vice President to smooth over insults or rectify misunderstandings and injustices.

Social divisions run deep

The persistence of large social deficits—especially in the areas of education, health care, jobs and security—and the high poverty rates in several parts of the country, especially the 51 municipalities classified as “high risk,” keep a significant part of the Guatemalan population in a permanent state of crisis.

The social policies of recent decades have not reduced the deep social differences or helped transform the adverse conditions in which so many people struggle to survive. Furthermore, given people’s lack of effective access to their government officials and of channels to mediate between different social interests, the government’s decisions end up being imposed and most often do not correspond to the population’s most strongly felt needs and demands.

This is precisely what has happened under Berger’s administration. His government team designed the “Let’s
Go Guatemala!” Social and Economic Reactivation Program as its government policy for 2004-2005. The emphasis in this strategy is not on social issues, however, but on essentially economic achievements: encouraging economic growth, attracting investments and being competitive in the CAFTA framework. The social component is characterized by assistance and solidarity measures that do little if anything to improve the lives of most Guatemalans.

Violence: A crucial issue

The achievements to date are especially insignificant in the area of public safety, the population’s main concern. The Government Ministry remains the object of criticism, mainly because of various problems in the National Civil Police. This is yet another reason why the government’s actions must be more firmly aimed at strengthening its institutions and removing inefficient and corrupt personnel. Another important step would be to adopt a preventive public safety policy that would make it possible to effectively deal with the difficult security situation clouding the country’s horizon. Although changing social conditions is inevitably a medium- and long-term task, if the violence and crime remain at today’s high levels, they will prevent whatever policy the government implements from having the desired impact.

Thus far, the measures this government (like its predecessors) has taken in the area of public security—more patrols, arbitrary arrests, increased efforts to fight minor infractions—have had only limited effect since they tend to respond only to the immediate situation and don’t involve any kind of comprehensive approach or even reach beyond urban areas. The security forces don’t efficiently respond to crimes that have a huge impact on people’s lives, such as homicides, assault, robbery, organized crime and drug trafficking. To make matters worse, no public policies address the sources of political violence affecting those who work in the justice system, human rights activists or the leaders of social movements, among others. A study currently underway by the Myrna Mack Foundation is revealing how police activity focused on arbitrary arrests and the pursuit of minor crimes and infractions generates a chain of problems in the operation of the justice system that costs the state millions of dollars a year.

A weakened congress
caught between two powers

Guatemala’s Congress began the year under heavy fire from public opinion, with criticism focusing on its insignificant legislative accomplishments in 2004, the ample signs of corruption among the congressional leadership and the poor administration under the direction of Rolando Morales during the first year of this legislative period. The legislature is justly criticized. The last straw was the legislators’ decision to give themselves a $1,000 a month raise at the end of 2004. The move sparked an avalanche of criticism on top of the ongoing criticism of their poor legislative work and administrative problems. At the beginning of this year, they were forced to backtrack in response to a threat of public protests and fear that efforts to oust them from their posts would not be far behind.

The possibility of political motivations behind some of the criticisms leveled against the Congress should not be ignored, however, since powerful groups are interested in exerting greater control over its work, among them the traditional powers, which resent not being able to control the many different political forces in the current Congress. And then there are the hidden powers, which are eager to regain the positions they lost due to the 2003 elections. This concern has reawakened debate on the need to reduce the number of legislative seats to form a smaller, more efficient Congress. Representative Nineth Montenegro has introduced a bill to this end.

The constant criticism of the Congress is further weakening this already weak institution. But lack of credibility is not its only problem. Equally important are the lack of a defined legislative agenda and the internal political instability being produced among the party benches by at least two very visible factors. First, they are extremely fragile, as members are constantly resigning to declare themselves independent or join another bench; and second, they have been obliged to carry out their work on the constantly shifting sands of the temporary agreements, coalitions and alliances reached among the various parties they represent.

A new alliance formed in late 2004 by the groups in Berger’s Grand National Alliance (GANA), the Guatemalan Republican Front (FRG) and the Unionist and Patriot parties to elect a new congressional leadership and approve the 2005 national budget suggests that the legislature may be on more solid ground and could get beyond having to form new agreements on every issue. This seems increasingly possible as other smaller parties have also been joining the alliance, and because Vice President Stein has been meeting with the parties’ general secretaries in an effort to reach agreements that could hold over the medium term. Everything will depend on the degree of cohesion achieved among these four large benches over the course of the year on the main issues under negotiation and on the political conditions in which these discussions take place.

Justice system:
Important elections

This will be an important year for the institutions that make up the judicial system, especially the Constitutional Court and the Public Ministry, since both will be preparing for a change in leadership. In April 2006, the Constitutional Court will elect new justices for the 2006-2011 term, and the following month, a new head of the Public Ministry will be named for 2006-2010.

Regardless of who is appointed its chief prosecuting attorney, however, a top priority for the Public Ministry this year will be obtaining concrete results in the high-profile cases against several high officials from the administration of Alfonso Portillo. These cases have been underway for the past year, but have yet to prove the officials’ criminal responsibility in the actions they allegedly committed. This year will also be decisive regarding the ministry’s ability to implement the qualitative institutional changes promoted since 2004 and ensure that they are established as institutional policies.

Another important challenge will be to define better the criteria for criminal prosecution. Juan Luis Florido, the current chief prosecutor, has focused his efforts on the most important corruption cases, thus downplaying prosecution in other major crime cases, including homicides and assaults resulting from common crime, political violence or organized crime that have a daily impact on the lives of virtually the entire population. While the determination to investigate and judge the officials involved in the corruption that characterized the Portillo government is commendable, the Public Ministry must also put more effort into responding to the population’s demands on public security issues, to avoid delaying further the task of creating an institutional capacity to deal with these problems.

Although the commission in charge of nominating candidates will not be convoked for some time yet, forces are already on the move around this process, directed by groups interested in taking control of the Public Ministry and deciding the course of the investigations and prosecutions that fall under its mandate.

The power of pressure
or transparent elections?

As for the Constitutional Court, a new president will take the place of Cipriano Soto who has held the post since the beginning of last year. By order of succession, the presidency should go to Francisco Flores, who it is hoped will guide the institution in a new direction by better managing the administration of justice and exercising control over the judicial system corresponding to this court.

The groups that have an interest in influencing the court’s work are already beginning to go into action around next year’s election of new Constitutional Court justices. They are aiming their pressure at the Supreme Court, the University of San Carlos, the Bar Association and the executive and legislative branches, the five institutions responsible for appointing the magistrates and alternates who will make up the court for the 2006-2011 period.

The situation in these two institutions during their pre-election period demands attention and constant alert to ensure
that the political interests of the various groups that wield power in this country do not influence their make-up, as happened in 2004 with the election of Supreme Court and Constitutional Court justices. The challenge is to ensure transparent elections whose sole purpose is to designate authorities with high ethical and professional profiles, ready to put their best efforts into serving society as a whole, not particular groups. Will this be possible?

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