Last Thursday's Update (Aug 21st)

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

Last Thursday at the PGN was very somber. The PGN lawyers sat at their desks and read carefully the newspaper article about the ruling of the Constitutional challenge. Although “Siglo Veintiuno” always has been against international adoptions and the article was biased , it conveyed the message that will set free hundreds of children, to join their permanent families. At mid morning, all the PGN lawyers had a meeting to discuss the consequences of the CC sentence and the amparos. It took them a couple of days to begin to distribute among the lawyers, the cases that were piling up at the reception office and at the Central Authority.

Until now, not s single file started after March 5th has been approved, except for a few that were approved by mistake. The Court of Amparo has received the petitions to initiate criminal process against Luis Rosales, the attorney general. He claims that the amparos should have been filed against the lawyers of the section that should have given the opinion, that is to say, Rudio Lecsán Mérida and the assistant lawyers. Which is not a bad idea that we will take seriously, because Merida is who has been holding up the cases for no reason, refusing to sign the opinions and supporting the illegal “previos” of the other attorneys. We have learned that Merida instructed the lawyers who got the after March 5th cases of the lawyers protected by the amparos, to request a “certified copy of the ruling of the Court of Amparo stating that no legal resources were pending” knowing very well that the appeal of the PGN before the CC is still unresolved, but that it does not suspend the order or the Court of Amparo.

As soon as the CC sentence on the challenge is official, Merida will not have more excuses to delay the cases. It is normal for the Constitutional Court to take a while to collect all the signatures of the magistrates in a sentence. There is no need to worry that the ruling may be changed. The legal resources filed against the Rios Montt decision is keeping them busy, and that could delay things a little. But it is just a matter of time. Now that we know the outcome, the waiting is less hard. As soon as a copy of the sentence is released, it will be translated and we will post it. After the publication in the official newspaper, three days later the sentence of the Constitutional Court becomes official and things will go back to the way they were before March 5th.

The Constitutional Court declared that Guatemala cannot accede to any international treaty. That ruling closed the door to the Hague Convention permanently. Those citizens of countries who do not share our happiness for this ruling, because their countries will not accept children of Guatemala until “the Hague Convention is properly implemented” should try to uncover what lies beneath their countries’ authorities to take such an uncompromising position. Of the five countries who objected to the accession of Guatemala to the Hague Convention, Germany, Canada, Australia and Spain were not accepting adoptions from Guatemala even before the accession. The enormous pressure of UNICEF over the countries who are parties to the Hague Convention can be analyzed in the “Report and Conclusion of the Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Inter Country Adoption 28 Nov –1 Dec 2000” pages 25 through 28. (http://www.adopt.dk/tal_publ/udland/haag.pdf)

It states how UNICEF brought the ILPEC report to the meeting as “evidence of the way adoptions are being done in Guatemala” and urged the receiving countries “to close their doors to the market of Guatemalan children”. Guatemalan adoptions were on trial at that meeting, and were condemned and sentenced without even a Guatemalan authority being present.

If you belong to a country that followed UNICEF’s orders, get in touch with us. We want Guatemalan children to find homes worldwide and refuse to give up on some countries, just because their authorities are being mislead by the strongest anti adoption entity, also known as UNICEF. Together we can find a way to prove that Guatemalan adoptions are under attack because they are successful and that each child who is adopted is a child who will not become one more of the "children of the street".

Regarding the Valladares law, it is highly unlikely that Congress will pass a law that is a text book case of grounds for constitutional challenges. The opposing political parties are keeping score of all the laws approved by the FRG that later have been ruled unconstitutional and that will be used against the FRG at the elections in November, when the Guatemalans will vote for all authorities the same day. The FRG does not want to increase the number of illegal laws. The ADA is poised to file an amparo supported by over two hundred lawyers in case any law that restricts adoptions is passed by Congress overnight and by surprise, and to file the necessary challenges. As we have said, all these battles are making us stronger and more proactive.

Regarding the cases before March 5th. the amparos already filed do not apply to them. The reason why some of those cases are being delayed has to be analyzed individually. In some cases it would be necessary to file an amparo. If several cases are being held up for no reason, a collective amparo could be filed. We understand that there is a list of pre March 5th cases and if there is not, one should be formed. A collective amparo would be stronger and less expensive.

A question that everybody asks, is if it is safe to accept referrals now. The answer is yes, if you have patience. Considering the backlog at the PGN and at the US embassy, it will take a while to process all those cases. But if you accept a referral now, by the time the hold up is over, your case will be coming out of Family Court. We cannot promise that you will celebrate the Holidays in December with your child, but we can assure you that your adoption will be finalized within the next months

Thank you to those who have personally expressed their gratitude for the drafting of the challenge and its favorable ruling. . Your comments are appreciated and encouraging.

Best regards,

Susana Luarca

Attorney at Law, Asociación Defensores de la Adopción

Guatemala City.