It must be said clearly. The decision of the Guatemalan Constitutional Court (CC) to deny Ms. Sandra Torres the opportunity, even the right, to register as a presidential candidate for the upcoming elections of September is based on flawed arguments and a serious misreading of the Political Constitution of the Republic.
The argument I'm advancing here has nothing to do with the individual person, the poliical ideas, not to mention the actually dismal record of Ms. Sandra Torres as wife of outgoing UNE President Alvaro Colom and as head of one of the President's social funds. This argument pertains, rather, to the way in which the political institutions in the country continue to exhibit signs of arbitrariness, exclusionism, gender or ethnic discrimination, and ties to powerful groups both legal and illegal.
The truth of the Sandra Torres affair is this: her divorce from President Alvaro Colom was, without a doubt, a divorce of political convenience. But the Constitution has a noticeable void in cases of presidential divorce. What the Constitution (and the Civil Code) says about "The relatives of the President and Vice President within the fourth degree of consanguinity or second degree afinity" has no applicability to the person divorced from the President of the Republic. Divorce involves, by definition, the end of all ties of "affinity" to any degree, as defined by the Constitution, and thus the cessation of family relationship in legal terms, and therefore, in constitutional terms. There is nowhere in the Constituion or the Civil Code where the question of "distoring" the meaning of these provisions is ever broached or preempted. And in no previous occasion has the Guatemalan Constitutional Court dealt with a case of presidential divorce just like this. Thus, this is new legal territory for Guatemala and the Constitutional Court, under tremendous political pressure to make a decision quickly, has blatantly failed in doing its job.
This question of the "intentions" that the presidential couple may have had in deciding to get divorced is, in my opinion, beyond the legal jurisdiction of the CC. If these intentions are to be judged politically or morally, let it be judged so in the court of public opinion and in the context of the electoral process. When it comes to presidents and their spouses running for office, the Guatemalan political system and the Constitution itself are not above, for example, the case of Argentina where the wife of the late President Kirchner run for office when her husband was still in office, without any legal impediments, and is now poised to do so again and possibly win. Sure, Argentina and Guatemala are different countries, but the principles involved are nonetheless quite similar. But as a minimum, if the Guatemalan Constitution is to be clear on cases of presidential divorce, then the Constitution needs to be amended rather than blatantly misinterpreted or arbitrarily applied by a group of questionable judges. And if the Constitution is to be amended, as I think needs to happen here both to either make it clear that presidential divorcees are barred from running for office or that they are actually allowed to do so, this amemdment falls within the competence of Congress, not the CC, and should take place not in the heated context of an electoral process, but if possible when the stakes are at their lowest, and with a high degree of input from people rather than merely "experts".
The possible candidacy of Ms. Torres, as at one time could have been the case of Ms. Rigoberta Menchu, or as was the participation of Ms. Nineth Montenegro with the Encuentro por Guatemala party in previous elections, is a symbol of ever elusive gender equality in a country hopelessly dominated by militaristic and authoritarian male personalities. It is not a quesiton of whether Ms. Torres has got the right stuff for the country, the right ideology or political platform, the right brand of "feminism" (which she, of course, couldn't care for) or the right political record. After all, the entire crop of presidential candidates in the current electoral process leave much, much to be desired. For example, the current leading candidate in the country, former military man Otto Perez, exemplifies exactly the deeply entrenched patriarchal, militaristic and "tough-hand" political and ideological tradition that has plagued national politics for decades. Moreover, the Perez candidacy also represents, quite likely, the return of blatant neoliberalism to the country after four years of at least a mild attempt to humanize it and to spread the few benefits of "growth" of this tiny economy over the field of a growing and largely excluded population. The Coloms indeed represented, to a very small degree, a break with the very oligarchic, militaristic, and tough-hand approach to politics that Perez Molina represents, but their weaknesses, inconsistentices, and indeed wasted opportunities, in what is a country swamped with common and organized crime as well as with the influence and domination of a rapatious and unyielding economic elite, rendered most of their efforts effectively null. To some exentent, then, Ms. Torres has come to exemply the feeble politics of charitable inneffectiveness, an Evita-like motherly talk that no longer captures the imagination of enough people, in a country that needs to feel "secure" as much as it needs deep and decisive structural reforms. But these problems cannot, indeed must not, be confused with what the Constituton says about presidential divorce, which is nothing.
We must therefore emphasize this point. The decision of the CC reveals, yet again, the legal, political and philosophical poverty of the people supposedly appointed to ensure the strengthening of "democratic" institutions in the country.