IACHR and RFOE Reject Entry into Force of Reforms to the Nongovernmental Organizations Act in Guatemala

May 19, 2021

Washington, DC—The Inter-American Commission on Human Rights (IACHR) and the Office of the Special Rapporteur for Freedom of Expression (RFOE) reject the entry into force of Decree 4-2020, which reforms the Nongovernmental Development Organizations Act (NGO Act) and the Civil Code in Guatemala. The IACHR and the RFOE urged the State of Guatemala to repeal these reforms, which place restrictions on public spaces, contravene the rights of association and freedom of expression, and disproportionately hamper public participation and the defense of human rights.

According to public information, on May 12, 2021, the Constitutional Court of Guatemala overturned a provisional injunction and several appeals filed to prevent the entry into force of the reforms that have been approved to the NGO Act and the Guatemalan Civil Code. These reforms were approved by Congress through Decree 4-2020 of February 11, 2020, and were sanctioned by the President on February 27, 2020.

As the IACHR has already pointed out, if these reforms enter into force, they will seriously affect the ability of human rights organizations to go about their legitimate work defending human rights in Guatemala. By reforming the NGO Act, Decree 4-2020 sets out a series of requirements regarding the establishment, registration, regulation, operation, and monitoring of Guatemalan and international NGOs in the country. In addition to being excessive and disproportionate, these practices could be used in a discretionary or arbitrary manner to the detriment of civil society organizations in the country.

Likewise, the IACHR and the RFOE are concerned by the establishment of rigid, restrictive definitions of what constitutes an NGO and the possibility of limiting access to foreign funding through vague, ambiguous criteria on the grounds of "public order." They are also concerned that this is being achieved by imposing sanctions, canceling permits, and initiating criminal proceedings. Likewise, the IACHR noted with concern that Decree 4-2020 would reform the Guatemalan Civil Code with the purpose of providing the executive branch with discretionary powers relating to the supervision and monitoring of NGO activities, including the power to dissolve such organizations on the grounds of "public order."

In a communication dated May 19, 2021, the State informed the IACHR that "Congressional Decree 4-2020 seeks to improve development in Guatemala by establishing mechanisms that ensure transparency in the actions of Guatemalan or international NGOs. This does not represent any limitations to the rights of association and freedom of expression or disproportionately hinder public participation and the defense of Guatemalans' human rights, nor does it prevent NGOs from going about their work." Likewise, the State noted that "Guatemala's model of government contains checks and balances, one of which is the work of the Constitutional Court, which overruled the writs of amparo filed against the decree in question."

The IACHR recalled that for individuals to fully and freely enjoy the right to freedom of association, States have the duty to create the legal and real conditions through which human rights defenders, media outlets, and journalists can go about their work freely. In this regard, the IACHR has noted that although the obligation to guarantee the right of association does not prevent them from regulating the establishment and monitoring of organizations within a State's jurisdictions, it must ensure that legal requirements do not prevent, delay, or limit the creation or operation of these organizations, as per the right to freedom of association. In this regard, it particularly urged the State to observe the standards set out in the Report on the Situation of Human Rights Defenders in the Americas and the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.

The IACHR and the RFOE once again noted that freedom of association is fundamental for human rights defenders to be able to go about their work. States need to have competent authorities for registering these organizations that do not operate with wide margins of discretion. Likewise, legal provisions should not contain vague, ambiguous, discriminatory language that might place disproportionate, arbitrary limits on the exercise of the right of association. In this regard, the IACHR and the RFOE called on the State to repeal the reforms in question as they would run counter to standards on this matter.

Finally, the IACHR expressed its regret that the Constitutional Court ruled to allow the entry into force of the aforementioned reforms despite the fact that Congress has refused to swear in one of the judges who were elected to the court in question for 2021–2026. In response, the IACHR called once more on the Guatemalan State to guarantee judicial independence by respecting the process for appointing judges, in accordance with domestic regulations and international obligations.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 128/21