Carolina Ovares-Sanchez
Elections in Latin America have historically been organized on the basis of mistrust, the product of authoritarian legacies and a history of electoral fraud. The transition to democracy in the eighties of the last century led to the challenge of how to manage this distrust and consolidate an institutional framework with the capacity to conduct reliable elections and whose results are considered legitimate by those who participate in the electoral contest, including those who they lose the elections and especially the citizenship. In this context, a central institution acquired prominence: the electoral bodies or authorities, in charge of organizing and judging electoral processes, and qualifying the elections, that is, declaring the result and validity of the elections.
A particularity of the electoral authorities, called Electoral Tribunals in the Central American region (with the exception of Honduras, which divides the electoral function into two bodies), is that they are designed to make various decisions and precisely generate that reliability and legitimacy in a politically very sensitive field: the electoral results that determine who will be our political representatives.
Due to the function that they acquire in democracy, electoral organizations present two central characteristics: being autonomous from the Executive and Legislative powers (or they are expected to be and are designed accordingly) and being specialized in electoral matters. This is key to ensuring that the declaration of the electoral results is what the citizens decided at the polls, and that the decision process – which determines what the result of the voting will be – does not raise doubts. Precisely, the electoral authorities are designed – especially – to manage mistrust.
However, the autonomy and authority of the electoral authorities have been challenged by another important political actor in our democracies: the constitutional courts or tribunals. This matter is not minor and the case Guatemalan is a serious one about it.
Let’s recap the facts. On June 25, national elections were held, which gave as a preliminary result, given by the Supreme Electoral Tribunal (TSE), that two political forces obtained a sufficient number of votes to go to the ballot: Sandra Torres Casanova, from the National Unity of Hope Party (881,000 votes, 15%) and Bernardo Arévalo de León, from the Seed Movement Party (654 thousand votes, 11.7%), and having as a particularity that the protagonist was the null vote, since almost a million people voted this way (17% of the total valid votes), in accordance with the preliminary data del TSE.
What seemed to be an electoral calendar with two long and tense months until the second round on August 20, due to the unexpected result (Arévalo was not among the first candidates intending to vote), was interrupted by the concatenation of a series of episodes. Which led the Constitutional Court (CC), six days after the elections, to issue an order to the TSE to suspend the qualification of the resultswhich as the supreme electoral authority corresponded to him.
The CC upheld a provisional amparo filed by nine political groups, including the government party. Alluding to the urgent need to “guarantee the purity of the electoral process”, ordered the Electoral Boards to hold hearings to review scrutinies, execute a comparison of minutes and hear challenges. In turn, the CC pointed out that the Electoral Boards, if deemed necessary, must indicate in the resolutions, duly reasoned, if there are cases of nullity and/or the need for a new vote count.
In a democratic context and respect for the Rule of Law, hearing post-electoral challenges is part of the procedure and of the elections, and it is a function usually exercised by the electoral justice system, that is, the Electoral Tribunals or Courts. However, in a context where electoral integrity is at stake and consequently also the electoral dimension of democracy, the intervention of the CC erodes the certainty that the procedure for choosing representatives is supposed to provide. This is what happens in Guatemala. The Judiciary, including the CC, is delegitimized, and is part of the serious and structural problem of the regime of impunity and corruption known as Pact of Corrupt.
Taking this scenario into account, the action of the Constitutional Court is serious and had consequences, by causing uncertainty in the electoral process. Likewise, it has been pointed out that the CC assumed an authority that did not correspond to him, by taking part in the political contest through an abusive use of the constitutional norm. His actions raise many doubts if what is sought, by those who filed the legal remedies, is to use the judicial apparatus, try to validate the electoral results and manipulate so that the courts decide the results.
As I indicated at the beginning, building confidence about who is the winner and loser of an electoral contest is the improbable, which the electoral authorities must make probable. In a democracy, where the procedures are followed, the results are decided at the polls. In view of this, whenever a body other than the one specialized in electoral material faces the question of intervening in the procedures for determining the popular will, it should in principle take a step back, even having an institutional normative justification. There may be conditions that this should be qualified, but as far as we can understand from the facts that have been presented to us, such is not the case with the first round of the Guatemalan election.
Carolina Ovares-Sanchez
She is a Central American political scientist and sociologist living in Argentina. She is a PhD Candidate in Political Science from the National University of San Martín in Buenos Aires. She works in the academic area and in political and electoral analysis. Her research areas are democratic institutions, the intersection between justice and politics and on mechanisms of direct democracy. She is part of the Network of Political Scientists.
Fuente Divergentes.com