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25/04/2014 | Guatemala, The War of Paz y Paz: Enemy of the State

Steven Dudley

Given her record fighting crime, Guatemala's Attorney General Claudia Paz y Paz should be an obvious choice to retain her job. In addition to the high profile arrests of organized crime figures and her work improving access to justice for women, rates of impunity have dropped by 23 percent in the past six years, according to the United Nations-led judicial team the Commission Against Impunity in Guatemala (CICIG).


The Attorney General's Office, or Ministerio Publico (MP) as its known, is clearing more cases across the board. In 2013, there were 6,188 criminals sentenced, compared to just 2,884 in 2008. Judges have also issued more sentences for femicides every year since new mechanisms were put into place (pdf). Both international and inter-institutional cooperation has increased.

However, Paz y Paz is considered a long shot to retain her position. She is criticized for not doing enough to fight common crime and corruption. The MP managed only 12 convictions for corruption in 2012, and 149 in 2013. There have also been complaints about her administrative abilities. For instance, she has split prosecutors into those that do strictly investigative work and those who are litigators. The litigators, however, complained to Contrapoder magazine recently that they do not have enough time to prepare for the cases that some say are being shoved haphazardly through the system.

Without doubt, the loudest critics come from ex-military and conservative business and political circles, who say she has taken her leftist human rights agenda too far. They say the case against General Efrain Rios Montt -- in which the former military dictator was convicted for genocide before a high court reversed the decision 10 days later -- shows her partisan zeal. The lack of cases against former guerrillas, they add, illustrates her political agenda.

Paz y Paz did not help her case for another term when a witness in the Rios Montt trial insisted President Otto Perez Molina was involved in massacres while he was in the military. (Perez Molina vehemently denied the accusations, and Paz y Paz told InSight Crime she and her team were surprised by the testimony.)

In addition to former military members, the economic elites, and numerous political forces, there are also powerful business groups trying to stop Paz y Paz. Land tenure issues continue to plague Guatemala, and some mega-industrial and mining projects have stalled because of protests. Paz y Paz is seen as an ally of the protesters, adding these large business interests to the long list of detractors who are working behind the scenes to make sure she does not return as the attorney general.

What's more, groups aligned with organized crime figures are maneuvering to ensure Paz y Paz does not get a second term at the MP. Her record illustrates clearly that she knows few bounds, and four more years of her leadership could prove devastating for more than one large criminal network.

Perhaps the most notable of Paz y Paz's opponents, and a man who represents several of these special interests, is Gustavo Herrera. Herrera is a man of many faces. He is a businessman and campaign contributor with close ties to the Frente Republicano Guatemalteco (FRG), the party that former General Rios Montt founded and nurtured for years.

Herrera fits into this story because he is a broker for special interest groups. When his connections, be they in high political office or dodgy businesses, need something from the judicial system, it is Herrera they call. His ability to maneuver in this system has also helped him navigate stormy waters in his own life.

Herrera was accused of moving drugs and laundering money in 2004, including by President Perez Molina, when he worked as a security commissioner for that administration. However, no charges were filed against Herrera. Herrera has also faced down accusations of stealing millions from the government's social security agency, the IGSS, getting a court to drop the charges in 2009.

A (Vice) President's Political Operator?

After the IGSS case was dismissed and the drug trafficking charges subsided, Herrera resurfaced and has since been connected to President Perez Molina's Patriotic Party, and specifically to Vice President Roxana Baldetti (pictured below). Prensa Libre, quoting "congressmen" and "civil society sectors," said Herrera works at the behest of the vice president. The news outlet elPeriodico called Herrera Perez Molina's "narco-operator," singling out his relations with Baldetti. Siglo 21, quoting the head of watchdog group Pro Justicia, said that Herrera works closely with the president's Patriotic Party, which the vice president heads.

Two of the foremost non-governmental organizations monitoring the judicial system, Accion Ciudadana and Movimiento Pro Justicia, as well as numerous governmental and independent analysts, also connect the presidency to Herrera. These outside observers say the presidency uses the current head of the IGSS, Juan de Dios Rodriguez, as his go-between for Herrera.

The implication is that the vice president may have her own interests to protect from an aggressive attorney general like Paz y Paz. However, the president refuted the alleged connections between Herrera and Baldetti and his office.

"The rumor [that Herrera is the presidency's political operator] that a small sector of the press and some observers pick up has no basis," the president said. "There does not exist any relationship beyond rumor with Mr. Herrera, not with the president or the vice president."

The president further distanced himself from Herrera when asked about the drug trafficking accusations he had made against Herrera in 2004.

"I reiterate what I said in April 2004," he wrote in response to InSight Crime's specific question about this matter.

The fact the president stands firm on the strong accusation he made previously may surprise those who still connect Perez Molina to Herrera. Contrapoder, which is financed by a member of Perez Molina's cabinet, recently described Herrera as "a government operative," who is at the heart of the problem of this process of selecting a next the MP.

"Does anyone have enough force to stop Gustavo Herrera -- the lawyer connected to the corrupt operations in the social security administration, who also has power in his profession, especially considering that, although he denies it vehemently, he is a government operator -- from collecting power in this commission?"

Moving in the Shadows

The commission in question is the so-called "Comision de Postulacion," or selection committee, which was established by the Guatemalan constitution to choose the final candidates for attorney general. It is one of several postulation commissions mandated by the constitution. These commissions are the filters for the selection of some of the most important posts in the nation's government, including the election oversight board, supreme and appellate court judges, the comptroller, and, of course, the attorney general.

How someone like Herrera became a broker in this process says as much about the state of political affairs in Guatemala as it does about the process itself. Like most things to do with the functioning of the state in Guatemala, the process of deciding who will get these commission posts is overrun with corruption and political shenanigans.

On the surface, the selection of the attorney general is democracy at its most transparent. There is an open call for Guatemalans who fulfill the basic requirements for the spot to submit their resumes and other paperwork for consideration by the commission. The commission itself is made up of the president of the bar association, the president of the bar association's honor board, the president of the Supreme Court (who also presides), and the deans of every law school in the country. There are currently 11 accredited law schools in Guatemala, making for 14 people on the Attorney General's Postulation Commission.

All commissions, in forums held in the Supreme Court building that are open to the public (and can be viewed on television and online), check the backgrounds and grade the candidates. In the case of the attorney general, the commission's ultimate responsibility is to use this system to select the final six candidates, which are passed on to the president, who then chooses amongst those candidates.

The process, however, is often subverted before it reaches the public and televised forum. It is helpful to break down how this happens into layers. At the top are several special interest groups, among them civil society, foreign governments, organized criminal groups, former military, and private businesses. These interest groups channel their efforts through brokers in the political parties, the presidency, congress, law firms and local non-governmental groups. All of them are trying to influence the bar association, private universities, and the country's national institution of higher education, the Autonomous University of San Carlos (USAC), who are the ones who actually fill the spots on these commissions and make the determination of the final candidates.

As noted above, Herrera works as a broker for political interests, specifically the Patriotic Party, President Perez Molina's party, and the FRG, Rios Montt's party. The FRG has been a highly effective broker in recent years. In a 2009 report on the commissions by the CICIG (pdf), the United Nations body determined that 38 percent of the commission members for the supreme and appellate courts for that year responded to the FRG. According to government investigators, Herrera also turned to the party when he needed to squash the charges that he stole millions from the IGSS. Both the Patriotic Party and the FRG are, as is apparent from their roots, tightly connected to the types of former military members that desperately want to see Paz y Paz out of the MP.

Herrera is also a broker for criminal interests, watchdog groups told InSight Crime. CICIG noted that numerous law firms with clientele connected to "dubious adoptions," drug trafficking, corruption and "influence peddling" wielded considerable power in the commissions for the supreme and appellate court. And Herrera's alleged longtime connections to the underworld make him a powerful interlocutor for these groups.

As a broker, Herrera focuses his attention on two major participants in the postulation commission. The first of these is the USAC, in part because it's where so many of these worlds intersect. The USAC is by far the most important higher education institution by sheer size alone: it has 190,000 students enrolled. And many potential commission members and their suitors meet and mingle there. Contrapoder magazine, in a special report this month, noted that six members of the Attorney General's Postulation Commission graduated from the USAC.

The university can also sway votes in various sectors by handing out jobs. These jobs come with low salaries but generous benefits packages. Contrapoder said eight current commission members had worked at the USAC at some point. Still others might owe their job as deans of other law schools to the USAC. As they control votes in these commissions, these law schools have been popping up like flowers during springtime. Since 2004, the number of law schools has gone from seven to eleven. One of these universities was founded by a sitting congressman.

Maneuvering correctly in the USAC, therefore, can result in direct control over one vote in this Attorney General's Postulation Commission: the dean of the USAC law school. The former dean of the law school was a close ally of the FRG party as well as the Patriotic Party, both close allies of Herrera and enemies of Paz y Paz. But the current dean may be more independent of Herrera. Power in the USAC can also result in indirect control of several more votes via the deans of other law schools or via control of the bar association itself, specifically the president and honor board of the bar.

The second critical node where Herrera manuevers is the bar association. The internal workings of the bar association are akin to a political system, CICIG said in its 2009 report. There are lunches and campaign events to woo candidates, secure donors and influence votes for positions that impact the workings of the entire justice system, including the attorney general. Complicating matters are the numerous private law firms and professional lawyer associations, who often work for special interests.

"It's in this way that some lawyers, judges and businessmen begin to operate in this political environment as intermediaries between the special interests of some in order to influence the work of others," CICIG wrote.

Herrera reportedly has relations with the president of the bar. And the upper echelons of the bar have already shown they are clearly in the anti-Paz y Paz camp. In early April, the honor board suspended Judge Iris Yassmin Barrios, who had presided over the trial against Rios Montt, for forcing a lawyer to assume Rios Montt's defense during the trial against the former general. The lawyer complained to the board that it was an act of "personal humiliation" and against the ethics of the bar. The president of the bar, who also sits on the Attorney General's Postulation Commission, supported the decision to sanction Barrios.

But while there is consensus about Herrera's role as a broker, what he actually does to secure his influence is not altogether clear. While other brokers work in the open, holding public events and having lunches with politicians and law school deans in fancy restaurants, Herrera works from the shadows. He cultivates his candidates and contacts in private meetings. He does not speak to the press. He has numerous business interests but often works via partners and third parties.

In one of the few instances where someone publicly delineated his actions, a local non-governmental watchdog group denounced Herrera's meetings with law school deans, which included at least one representative of the USAC. Manfredo Marroquin of the group Accion Ciudadana said one of those who attended the meeting was surprised by Herrera's presence. Herrera, according to Marroquin, said he was there representating the government, specifically the presidency. He was "arrogant, like he wants to dictate what needs to be done," Marroquin told InSight Crime.

In the end, Herrera holds the proverbial stick and the carrot. On the one hand, it is his job to berate, cajole, convince and threaten anyone and everyone he needs to in order to get his candidates into the right posts. On the other hand, he needs to be ready to hand out favors. For this, he could turn to his unofficial bank: the social security institute, the IGSS. As several commission watchers noted, Herrera has good relations with the current head of the IGSS, Juan de Dios Rodriguez. His understanding of how to pillage one of the region's largest public entities, and his personal relationship with the head of this institution, is a critical, if largely untold, part of his power.

If he does his job well, the special interests, his political partners, those determining the commissioners and those in the judicial system itself, will be beholden to him. And any one of these who needs to sway judicial decisions will seek Herrera's ear and his connections.

In Guatemala, it is often a question of access more than of justice. The special interests that need to influence the system do not always know when and how they will need it, so what they are buying from brokers like Herrera is access to those who control the system at the precise moment they need it. It is this access that is often the difference between a successful business venture and a failed one; a political victory and a political defeat; being in jail and being a free person; removing an effective attorney general or living with the consequences of having her in the post another four years.

'Finishing up right'

Paz y Paz has her own powerful allies, among them members of the European Union and the United States government. The lobbying is happening at the highest levels, InSight Crime has learned, but the backroom deals between the commissioners and brokers like Gustavo Herrera do not include the foreign diplomats.

The diplomatic community can meet with members of the commissions, which both CICIG and the US government have done in the past. European Union members, however, have mostly refrained from taking part in what they see as crossing a diplomatic line into political interference. And the US is between ambassadors. This may affect how effective a strategy the embassy can implement to push for another Paz y Paz term: there is a difference between calling for transparency in public statements and meeting in person to remind commissioners of their responsibilities.

With direct contact at a minimum, foreign governments are doing most of their work by funding watchdog groups such as Pro Justicia and Accion Ciudadana, who keep an eye on the process and lobby for "transparency," rather than advocating for a specific candidate. To be sure, Paz y Paz is not the only solid candidate. And her international fame and polarizing period as attorney general has left a "stain" of sorts on her and her reputation, a reminder that the process is as much about professional jealousy as it is about political differences between the top prosecutors.

If all things were equal, Paz y Paz should win on her own merits. And her strong showing during her first three and a half years seems to have secured at least some support from as many as four private university law school deans, among them some of the more established names in academia in Guatemala, commission watchers say.

When asked, President Perez Molina also claimed to support the attorney general's work at the MP. In a written response, the president told InSight Crime he had a "positive" relationship with her and cited the increased budget to prove it.

"It's a relationship of coordination and working together," he said. "This is clear in how much assistance my government has given the Attorney General's Office, that since 2012, it received an additional $25 million."

He added that the vice president's relationship with Paz y Paz was just as "positive."

"The relationship with the vice president is the same as it is with the rest of the government," he said.

However, there is little hiding the isolation that Paz y Paz feels these days from much of the rest of the government and special interest groups. The Constitutional Court's recent decision to cut her mandate short by six months, followed by the sanctioning of Barrios by the bar association, have sent a clear message.

The initial phases of the current postulation commission have also not gone well. Paz y Paz received 32 of 79 of what are known as "tachas," which are formal procedural or even criminal complaints presented by civil society and watchdog groups. The next closest candidate received seven tachas. Observers of the process admit it is hard to say who is coalescing with whom just yet, but the high number of tachas for Paz y Paz points to a strategy of disqualifying her for technical reasons. The commission's determination of the six finalists is expected by May 2.

The sheer quantity of her enemies and their reach have worn Paz y Paz down and pushed her into being a political actor more than she had anticipated or wanted. During her time as attorney general, she has managed to keep much of her private life out of the public eye, but things have slipped through the net. As the process to select the next attorney general heats up, more personal matters will inevitably be revealed.

To cite but one past example, her son, who has cancer, had to get emergency surgery, which coincided with Perez Molina's presidential inauguration. The timing forced her to release a statement on Facebook, to explain her absence at the ceremony, lest anyone believe there was a rift between her and the new president. The memory still makes her feel uncomfortable and is the type of experience that makes her cringe at another four years under the microscope.

Paz y Paz is in fact noticeably tired. When asked what motivates her to continue, the attorney general cites the cases she has brought forward. And while she still gets excited explaining how her office has prosecuted formerly untouchable criminals, she has to be prodded to take credit for her doings and, in general, dislikes public appearances and press conferences.

She is, she says, a litigator at heart, an enforcer of the law. But she knows that is only half of her job description. The other part of her job -- that of being a political operator who can fend off adept and powerful enemies on all sides -- is grinding away at her enthusiasm. While she has not given up, she is preparing for the end, and already talks about "finishing up right." (Estados Unidos)


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