“Guatemala’s Democracy Faces Collapse at the Hands of Its Worst"

Article at Revista Factum, published on 13 December 2023 https://www.revistafactum.com/entrevista-edgar-ortiz/

Guatemala has been in a deep institutional crisis for over a hundred days. On August 20, its citizens surprised everyone by electing as their future president a sociologist and former diplomat, whose main promise is to combat the mafias that have plundered the State for decades.

Since then, the traditional political elites, many linked to major corruption cases, have tried to disregard and reverse the election results. In response, many committed Guatemalan citizens have claimed this is an attempted coup.

To better understand the scope and implications of this crisis, Revista Factum spoke with Edgar Ortiz Romero, a lawyer and political analyst. He has filed numerous motions to prevent the consolidation of this coup. Here’s what he had to say:

If you had to explain to someone, in the simplest words possible, what the latest episode of Guatemala's electoral drama is, how would you do it?

Guatemala is a very particular case for many reasons. We don't have a charismatic leader or a hegemonic party that is the protagonist of the story. The second element is that, unlike your country or other countries in the region, Guatemala doesn't have real political parties. For example, the current president, Alejandro Giammattei, has run in presidential elections four times with four different parties.

We have a coalition of parties that form the majority in Congress, and it has been governing for the past few years. This coalition calculated that one of its members could win the 2023 presidential election. And, as we know, Bernardo Arévalo from Semilla, who is the fiercest opposition to this coalition, won. Since then, or since the second round of elections, they've tried to sabotage him.

They tried many things: persecuting the party, suspending it, accusing them of illegal campaign financing, and none of these had any results. So, on Friday (December 8), we saw the Public Prosecutor's Office, which has attacked the election head-on, say that in their view there was electoral fraud and presented a series of evidences that don’t clarify much, nor explain why the fraud supposedly happened, and they asked the Supreme Electoral Court to annul the elections. That’s the latest episode of the story. An open and formal attempt to annul the elections after they lost at the polls.

You mentioned at the beginning a coalition of political parties. But then you said that the Public Prosecutor’s Office is asking for the election to be annulled, and this is not a political party. Why is the Public Prosecutor’s Office taking on the role of asking to annul the elections?

We need to go back to 2018. Let’s remember that Guatemala had the International Commission Against Impunity in Guatemala (CICIG), a United Nations experiment that came to Guatemala not as a prosecution or "super prosecution" but as an assistant to the prosecution. From 2007 to 2019, this commission, along with the Public Prosecutor’s Office, fought against corruption, but in the end, it ended badly because the commission was kicked out. It had some cases where it wasn’t so forceful, which reduced support, and it ended up leaving.

In 2018, when the coalition gathered and said, “this can’t happen again,” the general attorney was changed. Consuelo Porras (the current attorney general) took office and, since then, there has been a conscious effort to dismantle everything that smelled like CICIG. Then, in 2022, the attorney general was re-elected, and the agenda shifted a little: now the political opposition would be persecuted, just as the members of the ruling coalition were during the CICIG era.

The Public Prosecutor's Office has led the persecution against several parties, journalists, and, for that reason, has become the coalition's strongest weapon. It’s the cannon they have to achieve some result and reverse the election.

Is the Public Prosecutor’s Office the one that must determine if there was fraud? Does it have the authority to opine on an election?

No, it doesn’t. We have, like in El Salvador, a Supreme Electoral Court. Here, the interesting ingredient is that the law of the Supreme Electoral Court, which is the Electoral Law, has a special rank that was written by the Constituent Assembly along with the Constitution. This law gives many guarantees to the court, precisely because of the past of military dictatorships we had. The Electoral Authority is supposed to be the only one with the power to make statements on electoral matters.

What the Public Prosecutor’s Office did to find a way out was to say, "I’m not saying that I will annul the elections, because I don't have the powers, but I will ask the court, based on my investigation, to annul them."

Technically, the Public Prosecutor's Office can’t do that either, because it has no functions or powers to determine or investigate electoral fraud, which, by the way, didn’t occur. Even assuming there was one, it’s not the prosecutor’s job to investigate it or ask for it.

But stepping out of the rule of law and what should be, it seems like if they want to force it, they can. They have the police to make arrests, the Public Prosecutor’s Office to put seals on any order, right?

What I believe they have, and we’ve seen it in recent months, is brute force. More than saying that they’re going to execute the annulment of the elections, another thing happened: the Supreme Electoral Court played a very questionable role for a long time. For example, during the candidacy registration stage, people said the TSE was part of the coalition. But when Semilla won and the Public Prosecutor’s Office tried to prevent it from going to the second round, the Supreme Electoral Court said they couldn’t comply with those requests because they were illegal.

So the Public Prosecutor’s Office presented a case about the overvaluation of software purchased by the court to transmit the electoral results. They said, "If you won’t cooperate, then I’ll persecute you." And today, December 13, we have four Supreme Electoral Court judges in exile, now without immunity, accused of overvaluing the software purchase. They are going to use all the tools at their disposal and say, "If this Supreme Electoral Court doesn’t comply, then face the consequences."

That’s how they’ve tried to break any organ that stands in their way.

We’re one month and one day away from when Bernardo Arévalo is supposed to assume the presidency.

Yes.

What do you calculate the probability of that happening is, and will he really take office at that time?

It’s difficult to make predictions. Obviously, by the book, it should be 100%, but under the current conditions, I believe there’s a 60% chance he will assume office, and a 40% chance he won’t. The coalition has a menu of options to prevent this from happening, all of them outside the legal framework, but I think we, as lawyers, must understand that political dimension matters. The rules are one thing, but power dictates other timelines. What’s certain is that it’s a regime very concerned with making everything look legal. So, they have options.

One is to say they annul the elections, which I insist is illegal, but they can cloak it in legality by saying that the Supreme Court requested it, that the Court said yes, that it was reviewed by the Constitutional Court, and there was no problem, and that the elections should be annulled.

Another option is to say the party is suspended and no longer exists, meaning there’s no candidate to give the presidential office to.

Each argument, as absurd as it sounds, is on their menu. The issue is that if there’s no transition on January 14, Guatemala becomes an international pariah, but I believe that a large part of the coalition currently in power doesn’t care and is even willing to reach that point to prevent Bernardo Arévalo from assuming office.

Does this coalition have tentacles in the private sector, or in any civil society organizations? How solid is it?

Another characteristic of Guatemala is that we are governed by an absolutely unpopular coalition, led by a very unpopular president. When you look at the Cid Gallup graph, where your president, by the way, is always in first place in popularity, ours is at the bottom: even worse than Maduro or Ortega. He’s a very unpopular president. The Congress, like all of Latin America’s, is very unpopular, but ours is even more despised.

That’s why I say the only thing the coalition in power has is brute force, from politics and from control bodies, because there are no guarantees, there is no counterbalance except in the Constitutional Court, in which everyone places their hopes that it will stand against the coup.

I would say the private sector doesn’t support the coalition; it’s clear that there should be a transition, except for two or three people probably. I’d say that 99.9% of the private sector gets it. Civil society gets it, academia gets it, except for two or three questionable universities.

The vast majority of social sectors don’t support this. It’s a strong minority that controls the state, the parties, and the formal spaces of power, and it’s willing to use brute force. It’s an experiment, a foolish bet, because if you’re not popular, the streets will respond. And how will you control that? With brute force, in a Nicaraguan-style way, because there’s no social base to justify what they’re doing.

What’s at stake for the coalition that is really willing to invent anything to avoid the election result?

There’s a lot. A significant part of the coalition members’ horizon is limited to the border with Mexico; they don’t see much beyond that. It’s a very clumsy, mediocre, ordinary, vulgar political class for the most part. For them, annulling the elections is like annulling a neighborhood soccer game; it’s such a simple thing for them.

I think there’s a small ideological nucleus of people who genuinely believe in these things, but it’s very small and very marginal, though it also exists.

Moreover, I believe that it’s more about the business that this coalition stands to lose that motivates their actions, plus the fact that they’re not a coalition that looks very far ahead.

When you talk about businesses, I assume they’re not just legal businesses…

I believe that the variable of whether a significant portion of drug trafficking is also interested in this coup has been explored very little, but drug trafficking has become a more invisible actor. In the 90s, in the first decade of the 2000s, they were bigger, more organized actors. Now they’re a little more gray, ghostlike, but the drug trade is also a player in this game. You don’t see them at the table, but they’re definitely participating.

For someone who’s not in Guatemala, it’s been surprising to hear a word popular in Latin America that we haven’t heard for a while: coup. We normally thought of a group of soldiers forcibly removing a president. Why is Guatemala talking about a coup today?

Disregarding an election and imposing, by force of legalism, an unelected president is a coup. So, Guatemala's main concern today is that in January, the president that people elected doesn’t take office. In fact, not even the Congress that the people elected will take office, and the one already in place will be extended, and they’ll say that since there’s no elected president because the elections were annulled, they’ll appoint someone with a finger.

That scenario is de facto, outside the constitutional framework because there’s no way this can happen constitutionally. It’s a coup.

As Levitsky and Ziblatt said in their book "How Democracies Die", democracies no longer die by military coups but in courts, in Congresses, and here, it would be a judicial and legislative death.

If the electoral result dies, what else dies in Guatemala beyond having Bernardo Arévalo as president?

The fight is not about Bernardo Arévalo. I always confess publicly that I didn’t vote for him, but my concern as a citizen, and why I’ve taken some legal actions, is to remind everyone that the rules of the game are simple, and they say that the one who gets the most votes wins.

If he doesn’t take office, the problem isn’t Bernardo or Semilla, but that democracy is lost in the hands of a group of unworthy people. That’s tragic because it would show that in Guatemala, brute force and shady interests are above anything else.

In terms not just of democracy and civil liberties, but also of investment and the rule of law, you become a pariah state, you "Nicaraguanize" yourself. And then there’s much more at stake. You "cross the Rubicon" and enter a different dimension that Guatemala hadn’t gone through since the military dictatorships. It’s that simple.

In this map of actors, we see Semilla and lawyers filing motions, the Supreme Electoral Court resisting, and the Public Prosecutor’s Office fighting, but we don’t see the current president. Where is he and what role does he play?

Alejandro Giammattei is a complex character, and I think he’s playing the disengagement game. He shrugs, distancing himself from the situation. He publicly says he respects the election result, but he has never condemned the Public Prosecutor’s actions, which have been excessive, and he has never condemned the open experiments to disregard the election.

He plays a bit dumb in the crisis, but deep down, no one genuinely believes that he’s not part of this or, at least, tolerates what’s happening because, as I said, one thing is not acting openly in favor of the coup, but he also has an institutional, not just moral obligation, to represent national unity and say, "the red line has been crossed." And he hasn’t done that.

Does he have something to lose if this coalition loses power?

There’s a widespread fear I didn’t explain earlier. I suppose many members of the coalition fear criminal prosecution for corruption cases. One of their closest figures, Miguel Martínez, was recently sanctioned by the United States.

They applied the Magnitsky Law to him, which is one of the harshest sanctions. In the corruption "Hall of Fame," if you get Magnitsky, you're already in the "Champions League of corruption," and in the semifinals.

I believe there’s that fear that close allies could be prosecuted if power changes hands, and that’s probably one of his motivations for acting this way.

Just to offer some perspective to those who are listening or reading in El Salvador, there are also Salvadoran officials sanctioned under Magnitsky, such as the Director of Penitentiary Centers, Osiris Luna; the Director of Social Fabric, Carlos Marroquín; and the Chief of Staff for President Bukele, Carolina Recinos.
The United States has sanctioned 100 lawmakers and revoked visas for many people. Does this matter to this coalition?
That's the problem. When I made the caricature or profile of the lawmakers and others as vulgar, mediocre, and short-term thinkers within the coalition, I said that they don't understand those sanctions. They don't grasp the problem.

However, the business sector does see it. For example, they believe that if we're sanctioned, it would be terrible in terms of economic performance or public debt. A series of sanctions proposed by the United States could bring us down. I think the business sector understands it better. The coalition, at night (doesn't get it). They don't depend on this. A little road here or a plaza there, and they’re happy, so it seems like the threat of sanctions doesn't affect them. Let’s remember that the sanction doesn't only aim to punish, it aims to change behavior, and that part we still don’t see having an effect.

If international sanctions don’t affect them, is there anything the international community can do to pressure and change this behavior?
Up until now, I think so. I also believe that what the United States does, especially with the Engel List, Magnitsky, and other sanctions at their disposal, is important and effective. I think it’s the right instrument, but not everything can be done by the international community. Sometimes it’s a bit unfair to say that the Americans aren't doing more, but they can only do what they have in their hands, and they have a limited set of measures they can take. They’ve taken them, and they’re still important.

It seems to me that the problem we face is the threat of the next level, which is economic sanctions, because I think that would put more pressure on them, even though they don’t understand it due to their ordinary nature. Also, it complements the actions of a disorganized population that can take to the streets when there’s a blatant violation of elections, and having that international backing through sanctions helps.

I think they are complementary instruments, but the ultimate solution depends on the Guatemalans. And I’m not saying this as a slogan for sovereignty, I’m saying it seriously: the international community can do many things, but we need to have the courage from various social sectors to stand up.

The Organization of American States approved a resolution expressing concern about this crisis, and El Salvador abstained from supporting it. What does it tell you that a government like El Salvador’s didn't join this resolution?
I was surprised that they were the only ones. There were 29 votes in favor, one abstention from El Salvador, and one against, which is obviously Guatemala. El Salvador abstaining tells me it's a bit of a 'today for you, tomorrow for me'.

That is, 'reelection is a bit questionable, and I imagine that at some point, there could be an issue like this in the OAS, and better not to get involved,' and I think that’s what weighed on them.

Obviously, there are other authoritarian regimes like Nicaragua or Venezuela that are not in the OAS, they are suspended, so they don't vote, but I suppose that if they had voted, they would have done the same.

In a Guatemala where even the Constitution, the laws, and what people decide at the polls is no longer respected, what else is at risk for the average citizen?
There’s something very interesting about this crisis: a large part of the protagonists of the protests were members and leaders from the indigenous communities. When the ones defending democracy are the people who live on the margins of the state, because the state doesn’t reach them and doesn’t give them anything, one thinks that maybe not everything is lost.

Unlike other regional experiments where they tell you to sacrifice political freedoms in exchange for prosperity or public services, here the scenario is much grayer, because you sacrifice your political freedoms in exchange for what? A predatory, corrupt, mediocre, vulgar, ordinary regime that doesn’t care about anything.

For many people, the scenario is much worse. It’s not even an exchange between freedom and prosperity, it’s the worst possible scenario: no freedom, no public services, no prosperity, and no future.

For me, the greatest danger, and this is the conclusion I draw, is not that Bernardo Arévalo doesn’t assume power. It’s the institutional collapse that Guatemala will suffer if there’s a coup on January 14."