Guatemala’s Constitutional Court Steps in to Protect Democracy, But Will Need to Remain Vigilant

In a preliminary win for democracy, on December 14, 2023, the Guatemalan Constitutional Court issued a significant decision holding that candidates elected in the general elections earlier this year—including president-elect Bernardo Arévalo, vice president-elect Karin Herrera, and other officials—must take office on January 14, 2024. The Court’s decision was an important check on the incumbent government’s efforts to prevent Arévalo and his party, Semilla, from assuming office. But the danger to Guatemala’s democracy is not yet over.

Over the last several months, incumbent government forces have aligned in a series of politically-motivated legal maneuvers designed to thwart Arévalo’s landslide electoral victory. Although the electoral observation missions of the Organization of American States and the European Union found no evidence of serious irregularities in the 2023 elections, the public prosecutor’s office, led by Attorney General Consuelo Porras (herself under U.S. government sanctions for “involvement in significant corruption”) opened an investigation into Semilla for alleged registration irregularities. In July 2023, criminal court judge Fredy Orellana (also under US sanctions for “authorizing unsubstantiated, politically motivated criminal charges,”) suspended Semilla’s legal personality.

In response, Semilla filed an amparo before the Constitutional Court, citing Article 92 of Guatemala’s Electoral Law, which explicitly states a party cannot be suspended once elections are called and until they are completed. The Court’s ruling in favor of Semilla allowed the second round of elections to proceed. Post-election, however, the Attorney General and Judge Orellana continued efforts to enact the suspension, interpreting Article 92 as protective of only the electoral process, not the results.

But anti-democratic elements have had to contend with the force of indigenous communities who have led the charge for democracy. These historically marginalized communities, which constitute sixty percent of Guatemala’s population, have been at the forefront of nationwide protests, on the streets, outside the courts, and the public prosecutor’s office, calling for the vote to be respected and for the “pact of the corrupt” to be eliminated. The leader of the Juchanep Indigenous community said in Guatemala city: “We are here out of moral obligation. We do not represent mere power, but true authority. We will not allow Guatemala to fall prey to a de facto government imposed on us.”

The Court’s December 14 decision came in this context, in response to an “amparo” (extraordinary constitutional appeal) brought by a group of Guatemalan citizens who argued that their right to democracy was at risk. The Rule of Law Impact Lab at Stanford Law School filed an amicus brief in this case on behalf of former U.S. Ambassador Stephen McFarland, calling on the Court to protect democracy and the rule of law and supplying international legal standards in support.

The Court’s decision firmly stated that the order suspending Semilla would not affect the election results. By extending the scope of Article 92 to include not just the electoral process but also the democratic outcome, the Court played a pivotal role in preserving electoral integrity and the right to vote.

However, while this ruling removed Semilla’s suspension as an obstacle, other serious challenges remain. Individual criminal investigations against Arevalo and Herrera, as well as threats to the immunity of electoral court judges, continue to loom over the democratic process. In days to come, the Court–and Guatemala’s valiant defenders of democracy–will have to remain ready to defend the vote and the rule of law.