PNUD Síntesis Inglés 2009-2010

The 2009/10 Human Development National Report examines the role the Guatemalan State has played in promoting human development during the last 25 years. The fi rst section, which covers conceptual and historical aspects, addresses the emergence of the modern State, the decisive stages of the formation of the national Guatemalan State, and the relationships between the State and development. The second section analyzes the structure, bureaucracy, and the fi scal policy of the State. The density of the State is measured at the municipal level through a three-dimensional index (presence of agencies, bureaucracy, and Budget) and three compo-nents (health, education, and others). The results are compared to the human development index, poverty, and other indicators. The third sec-tion analyzes the role the State has played in guaranteeing persons’ real freedoms (security and justice), in promoting essential capacities (health and education) and agency (democracy), and in reducing poverty and inequalities (indigenous peoples and women). The fourth section pres-ents a proposal for the State’s transformation towards a plural State which promotes human development. Finally, the statistical annex provides up-dated data and indicators about economy, education, health, population, security, and State’s presence.

The Synthesis of the 2009/10 National Human Development Report in-cludes an abbreviated version of the eleven chapters of the Report. It is organized similarly to the Report in terms of its chapters. Likewise, the graphics, tables, and fi gures are placed as in the original. The purpose of this is to facilitate the relationship between the synthesis and the Report and to encourage reading the complete text.

SynthesisSynthesis2009/2010 National Human 2009/2010 National Human Development ReportDevelopment Report

Synthesis of the 2009/2010 National Human Development ReportSynthesis of the 2009/2010 National Human Development Report Guatemala:Towards a State for human development

Guatemala: Towards a State for human development

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Guatemala:Towards a State for human development

Synthesis2009/2010 National Human Development Report

United Nations Development Programme 5ª. Avenida 5-55 Zona 14, Edifi cio Europlaza, Torre 4, Nivel 10 Guatemala, Centro America Teléfono (502) 2384-3100 www.undp.org.gtwww.desarrollohumano.org.gt

Melissa Larín and Olga Vanegas Rocío Acevedo, with elements from the 2009/2010 NHDR graphic artwork Rocío Acevedo, with elements from the 2009/2010 NHDR graphic artworkLigia M. Alfaro AvilaOlga VanegasServiprensaGabriela Barrios Paiz

2009/2010 HDNR graphic artwork: Cover design:

Layout: Translation:

Illustrations: Printing:

Editorial process coordination:

UNDPGuatemala: towards a State for human development. Synthesis of the 2009/2010 National Human Development Report.United Nations Development Programme, 2010.108 pages ISBN: 978-99922-972-9-21. Modern State. 2. Democracy. 3. Agency. 4. Plural State 5. State Density. 6. Equity. 7. Security and Justice. 8. Human Development. 9. Health and Education. 10. Guatemala.

This document was possible thanks to the support of the United States Agency for International Development, USAID; the Spanish Agency for International Development Cooperation, AECID (Spanish acronym); the Norwegian Agency for Development Cooperation, NORAD; and the Swedish International Development Cooperation Agency, SIDA.

The content herein expressed is the sole responsibility of the authors and it does not necessarily refl ect the opinions of the cooperating agencies and Governments.

Partial or total reproduction of this document is allowed providing the contents, authors’ and editing credits are not altered. Total or partial use of this document is encouraged for studies, research, and public policies implementation purposes on condition that the bibliographic source is stated.

First edition: 1,000 copies, 2010

Síntesis del Informe nacional de desarrollo humano 2009/2010

Index

Introduction 5

First Section Conceptual and historical aspects Chapter 1: Emergence of the modern State: liberal, democratic, Rule of Law, and plural State 7

Chapter 2: Formation of the national State in Guatemala: decisive stages (1821- 1985) 13

Chapter 3: State and human development, a necessary synergy 23

Second Section State dimensions and presence Chapter 4: The State: its structure, bureaucracy, and public expenditure 30

Chapter 5: State’s fiscal policy and human development 40

Chapter 6: About the territorial density of the State 48

Third Section The State and human development Chapter 7: The State, health, and education 57

Chapter 8: The State, security, and justice 68

Chapter 9: The role of the State in promoting democracy 75

Chapter 10: The State as promoter of equity 81

Fourth Section The State as a promoter of human development Chapter 11: The State as a promoter of human development 92

Bibliography

Glossary 108

102

4 2009/2010 National Human Development Report Synthesis

Elaboration of the 2009/2010 National Human Development Report Synthesis

CoordinationLinda Asturias de Barrios

Thematic ConsultancyEdelberto Torres-RivasDesireé Arteaga de MoralesRicardo Stein

Research and StatisticsGustavo Arriola Quan

Program AdministrationDelmi Paola GarridoPamela RodasAna Victoria Jelkmann

Communication and TrainingGabriela Barrios PaizFelisa Loarca MatíasLucrecia de Gento

Consultant Eva Sazo de Méndez

Responsible team

5Synthesis 2009/2010 Human Development National Report

Introduction

2010 is the twentieth anniversary of the fi rst Human Development Report published by UNDP since 1990. During these two last decades, the focus of human development has advanced in the world as a perspective centered on persons, where they are the purpose and agents of development. Some of its main measurement instruments have been refi ned lately and disseminated in The real wealth of nations: pathways to human development (UNDP 2010). Human development index (HDI) continues measuring life expectancy at birth, education, and standard of living, but now different indicators for the last two components are used. Human development index adjusted by inequality allows appreciating the loss in human development due to inequality.

The fi rst National Human Development Report (NHDR) was published in 1998 in Guatemala. Since then, nine reports have been prepared. They address crucial topics for the country such as rural development, human development fi nancing, exclusion, health and women, human development agenda, ethnical-cultural diversity, economy and the State. These Reports have become a reference for the Government, universities and research centers, media, international cooperation, social organizations, and interested citizens.

The 2009/2010 NHDR, Guatemala: Towards a State for Human Development, analyzes the role the Guatemalan State has played in promoting human development during the last twenty fi ve years. The report is organized into four sections. The fi rst one covers conceptual and historical aspects: the emergence of the modern State, the formation of the Guatemalan national State (1821-1985), and the relationships between the State and human development. The second section is oriented to analyzing the structure, bureaucracy and fi scal policy of the State, as well as measuring State density in the territory. The third section addresses the role the State has played in providing health and education services, guaranteeing the right to security and justice, promoting citizen participation and fostering equity. Finally, the fourth section poses a proposal for transforming the Guatemalan State in terms of human development.

The 2009/2010 NHDR presents a methodological innovation, measuring the State density in the territory. The State density index is used for that purpose. Such index is three dimensional: presence of State institutions at the municipal level, bureaucracy, and specifi c expenditure. The index is subdivided into dimensions as well as components: health, education, and other functions of the State. Experience has shown the usefulness of publishing separately a NHDR synthesis, whose size, format, and contents contribute to its portability and continued use as a reference of concepts, key data, main fi ndings and conclusions. Likewise, the synthesis has been conceived as an invitation to reading or consulting the complete Report, providing ways of relating both documents.

6 2009/2010 National Human Development Report Synthesis

Developing this synthesis implied a process which we share below. First, various kinds of synthesis were analyzed and one which kept greater closeness to the original work was chosen. The closeness was posed in the internal organization of the work, in selecting key paragraphs of the original text and summaries of sub sections. Second, tables, graphics, and fi gures which illustrate some of the main fi ndings of the Report were chosen. Third, a preliminary version of the synthesis which was thoroughly reviewed was developed. Fourth, the revised version was edited keeping the same style as the original. Finally, we proceeded to the last stages of editorial production. Because of space limitations, typical of a summary or abbreviated version exercise, the synthesis includes few boxes and fi gures. However, in the complete Report the tables contribute to developing gender, ethnicity, and other aspects. Likewise, the fi gures (maps and schemes) allow visualizing geographically the fi ndings in measuring the State density.

To facilitate the relationship between this synthesis and the Report, we used the same internal division of Chapters, both in the numbering as in subtitles. Thus, once identifi ed the topic or subtopic, the Report may be consulted for broadening the information. It is also suggested to consult the prologue of the Report which in a few pages describes the objectives, methodology, contents, and message of the same.

We are pleased to present to the Guatemalan society and the human development global community with the synthesis of the 2009/2010 National Human Development Report. We hope that this synthesis is useful for central and municipal Government offi cers, researches, teachers and university and upper secondary students, social organization leaders, media, political parties, international cooperation, and interested citizens. Printed and electronic versions of the publication are available. The latter may be downloaded from the website www.desarrollohumano.org.gt. We especially thank the cooperation of the people and Governments of the United States of America, Norway, Spain, and Sweden. Their solidarity expressions have ensured the periodic publication of the National Human Development Reports in Guatemala.

Linda Asturias de BarriosCoordinator of the Program on National Human Development Reports and Millennium Development Goals

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7Emergence of the modern State: Liberal, democratic, and plural State and Rule of Law

Chapter 1 Emergence of the modern State: Liberal, democratic, Rule of Law, and plural State

The State is a concept and a political reality. In general, the notion of State points towards the existence of a territorial public power. This power regulates the social relationships of a community and takes advantage of strength monopoly in favor of the interests of all or of some groups in particular. The State notion has evolved and is changing because it is a historical fact, thus it can be stated that the State theory is part of the history of the State study.

The formation of the State has been the result of political and social evolution during the last fi ve millenniums. Whereas, the modern State is a relatively new phenomenon which emerged in some European countries such as Great Britain, France, Holland, the Nordic countries, the United States, Australia, New Zealand, and others. This was the result of countless economic confl icts, cultural rivalries, common or opposite family interests, linguistic or religious jealousy, territorial disputes —e.g., power disputes—, in summary, wars that fi lled the Middle Ages. Multiple and complex dynamics led slowly to another modality of exercising power and its correlate: strength. That is the national modern State. Its progress set the path that the rest of Western societies would travel: capitalist economy, liberal democracy, equal citizenship, and division in social classes. From the multiple dynamics that led the modern State, it is worth to highlight two key factors: wars and capitalist economy.

This chapter is divided into two sections. The fi rst one addresses the emergence of the modern State, highlighting its main characteristics and its relationships to the industrial revolution, the nation, wars, and citizenship, as well as its separation from the Church. The second one describes different expressions of the modern State: Liberal State, Rule of Law, Democratic State, and Plural State.

1. The emergence of the modern State

The most relevant aspects of the modern State appeared slowly and not all of them come from the long feudal period. Specifi c aspects which defi ne the State make reference to a concentrated political power exercised over a population which resides in a geographic space more or less bounded. Inside that space, order is guaranteed and destructive confl icts are avoided through monopoly of force. It is a generalize accepted power with an interior legality. At the end of the XV century, there were around 500 more or less independent, political units in Europe, with very blurred borders and diffuse power. Towards 1900, this number had been reduced to 25 States with the specifi c characteristics mentioned above.1

The modern State was emerging as a new way of power when six characteristics, not necessarily concurrent, were developed with uneven grades of precision: a) a growing coincidence of territorial limits with a uniform government system; b) new processes and mechanisms for drafting and enforcing laws, including the constitution; c) a growing centralization of administrative power and the emergence of a professional and specialized bureaucracy; d) when tax resources and fi scal controls were needed and expanded; e) when the establishment of a permanent, professional, technologically equipped army was needed; and f ) with the establishment of relationships among the States through the development of diplomatic formalities.2

Likewise, the notion of sovereignty, which has two manifestations, arises. External sovereignty, whose reason of being lays out on the fact that the modern State coexists in a universe of States with which it keeps confl ict or recognition relationships. The second one is internal sovereignty, which

1 Tilly (1975).2 Sotelo, I. (1996: 38).

PART I : CONCEPTUAL AND HISTORICAL ASPECTS

2009/2010 National Human Development Report Synthesis8

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3 The French revolution democratic ideology was conformed in the Déclaration des droits de l’homme et du citoyen of August 26, 1789, given by French country representa-tives reunited in a National Assembly.

4 Until the third or fourth decade of the XIX century, in the French State territory existed regions where Occitan, Breton and Flamenco were spoken. A hard State policy imposed French as the mandatory language. Cf. Marquardt, B. (2009: 56).

5 Hintze, O. (1996: Chapters 4 y 6).

is essential to the idea of a modern State as an impersonal, legal, and constitutional order with the citizenship in the center. In previous State ways, the theocratic authority principle existed. This was subsequently substituted by the monarchic concept which recognized the King as the total sovereign. This was replaced by the political concept of personal, arbitrary power of the emperor, and then limited by the law when constitutional monarchies emerged. After the French revolution and the United States independency, popular sovereignty is proclaimed. 3

1.1 The modern State: industry, market, classes

The State, which emerged in the prime of the modern world, after the XVI century, was accompanied by the extraordinary development of the economy and the productivity of the industrial revolution work. During this period, a territorial power appeared: a powerful and vast State with a bureaucracy administering it along with the emergence of a mercantile economy capable of satisfying the demand of demographic growth. Capitalism development may be explained, in part, as a result of the changes in agriculture and the use of humid lands which increased economic performance; as well as the application of scientifi c knowledge from and in the urban environment. Steam machine, for example, which revolutionized the resources of physical strength, produced enormous surpluses of food and industrial merchandises (textiles fi rst) and multiplied the velocity and the volume of land (trains) and sea transportation (steam boats).

Without the unifi ed concentration of power, the domestic market, would have not been developed and this would have not been the support of the nation. The operation of the national State, as a process, needs to be completed with the existence of community domestic production and distribution relationships based on the acknowledgement of private property. The domestic market is the national space where everybody comes together in a free exchange which includes the sale of the labor force. Contracting is an exchange which the State guarantees. This is carried out using a common language and currency. Economic relationships establish inevitable differences between one —owners— and other —workers— human groups who live according to diverse ways of production and consumption and who receive different value shares for their participation in the work they create. With industrialization, assigned estates disappear and acquirable statuses appear. Classes diversify, as well as the differences among them. Ascending

social mobility, individual or structural, appears. All of this is inherent to capitalism.

1.2 Modern Sate: nation, wars, citizenship

Nation. Nation precedes the State when human groups who have common features (i.e., language, religion, ethnicity, and a shared tradition) exist. When groups organize themselves politically, the State emerges to provide support, continuity, and territory to that informal community. But in general, the State is the one who creates the nation; because it has the political resources to unite, in a well-defi ned territory, a human group not yet homogenous. The State provides a common language and a shared future. This is a simple model of extraordinarily complex, multiple, historic processes.

In general, the existence of a modern State involves a social group which the State unifi es and sets in order —the nation— and from which the State obtains power to accomplish its goals. The nation is a unifi ed community which emerges from a homogenous population in a physical and historic common space. The nation encourages social and cultural life of the group whose existence is a source of identities. Such identities provide a sense of belonging which the State ensures. The presence of an interior market completes national existence.4 Not always —and less in its origins— the population had common cultural features. The existence of a unifying political power ensures a growing homogeneity. The most important feature, sine qua non condition, is the existence of an offi cial language, Lingua Franca.

War. In the emergence of various States —not necessarily the modern State— wars that mobilized local military forces versus diverse neighbors were important. Wars constituted territorial expansion impulses to impose legality and exploit manpower and/or neighboring wealth. As a result of victories or defeats, States changed their size, their external confi guration, their organizational structure, their ethnic composition, their material infrastructure, and other attributes.5 The availability of this strength and these features determined the State’s ability to set in order its external and internal relationships or, in other words, the capability to organize its coercion means (army and other armed forces) and to use them whenever necessary. In these times, the State functions were basically military (or geopolitical).

With warlike confrontations, some States disappeared and others became stronger. Economic growth was parallel to

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6 Giddens, A. (1985: cap. III).7 Bendix (1961: 78-79).

military capability, since the existence of enormous battalions during long periods involves a population that spends but does not produce. Consequently, at the core of the State rationalizing the fi scal aspect was key. A bureaucracy able to administer something that was far from the family economy was also needed. War, in specifi c conditions, was an engine for economic growth, political concentration, territorial expansion, and scientifi c boom. Capability to support warlike operations was necessary, whether men, weapons, food, or taxes.

During long periods of time, civil population was sacrifi ced in battles and fi scally plundered in peace times. In some cases, that caused populations to organize themselves around a growing discontent. People started to demand retributions and help from the State as a condition to cooperation and reciprocity. So happened that « […] as military costs increased, bigger was the need of governing authorities to negotiate with their citizens and obtain their support.»6 In some countries, these were the seeds of citizenship and democracy.

Citizenship. In the economic and social life of modern society, the inhabitant of cities was appearing strongly. As a consequence of various situations, this inhabitant was a producer, consumer, owner, wage earner, bureaucrat, professional, offender, and intellectual and had various ways of existence. Dominant groups recognized their own growth in quantity and resources; because of their number, they became a political force. The soldier-subject-worker became a soldier-worker-citizen. It was important that those who paid taxes and worked in inhuman conditions organized the claim. They were the more integrated inhabitants of society, those who lived in the city, thus they were called citizens. Increasingly, in the city one could learn how to read and work was collective. Cultural interaction became more intense than in the fi eld and social organization made access to justice and ownership easier. As a result of this, emergence, participation, and representation of the people became a reality.

In the national State, the citizenship keeps a direct relationship with power, whereas in the political medieval system, only the «important» in the kingdom had this right. In the formation of the national State, the codifi cation process of rights and obligations of all adults is important. The nucleus of this argument lies on the inclusion degree with which citizenship is defi ned. In the beginning, almost everybody was excluded: women, poor people, illiterate, rural inhabitants. Vote was conditioned. At a different pace, during the XIX century the diversity of subjects who had local, estate, religious, gender-related, ethnic belongings was replaced by a common citizen,

defi ned by the equality of all principle. So, the contents of the idea of nation are strengthened.7 The new basic unity of the State was the individual with his own autonomy environment, circumscribed by the freedom concept.

1.3 Modern State and The Church

In many countries, a key element for building sovereignty of the modern State was their separation from the Church and religious organizations. In its search for bigger power concentration, the State faced the Church which not only had an immense spiritual power, but also political and economic power. Secular ideas of the Enlightenment displaced geocentric interpretations of the world, which are typical of Christianity. In the process that establishes the State, this dilemma was manifested in diverse ways, according to religion movement (Catholicism and Protestantism). Catholic States had to fi ght with a supranational institution, the power of the Vatican, which had strong sovereignty attributes. In the case of Protestant States, the United States took the fi rst steps when separating from the Anglican Church through the fi rst constitutional amendment of 1791.

2. The Modern State

2.1 The Liberal State

More than symbolically, the French revolution established the political limit with the norms of the Old Regime: absolutist. From the institutional and legal point of view, this is the beginning of what is called the Liberal State, where the individual holds personal rights —political, civil, and social— and obligations —pay taxes, be loyal to the nation. Equality of all is proclaimed, as well as freedom and common good. Because of their philosophical foundation, all of these are included in the universal rights, i.e., human rights. The citizen is the center of political life, and before the State, he represents autonomy and freedom.

Despite its limitations, liberalism constitutes a symbol of the modern spirit; an irreversible conquest because of its insistence on equality of all before the law, without any discrimination whatsoever. Respecting the individual before the law is at the same time the State’s recognition of the citizen, who is free to act without any limitations but those established by the other’s freedom or the law.

The liberal State is the absolute State antithesis; consequently their difference is that the former lays on two normative-factual principles: the Constitution and human rights. In both cases, it is about limits imposed to the arbitrary power, to the sovereign’s power that may no longer be superior to


C 1the State power. A superior norm, or norm of norms, is now imposed: the Constitution. All forms of political life have to adjust to it. The express recognition of an individual’s right emerges when admitting before the State that those rights are inviolable.

Meanwhile, the legal-political articulation of the order was initially an elemental separation of functions between Government, Parliament, and Justice. This culminates in the modern world with the differential recognition of powers: executive, legislative and judicial. It must be remembered that the public power, whose basic function even under the new conditions remains keeping order and social cohesion, retains the monopoly of force.

The Liberal State meant an important step forward. The Liberal State has faced some of the consequences resulting from socio-economic changes to capitalist growth. Growth dynamics generate income, power, education, and wellbeing inequalities in general. Those constitute limitations to the political equality logic. A background of individualism, which hinders exercising and protecting the citizen’s rights and freedoms, exists. In fact, in the liberal State ideology and in its social order, natural rights or human rights are identifi ed above all by ownership and ownership-related rights. Individuals of the so called «lower classes»8 may enjoy these rights only formally and partially. In sum, the liberal State marks the beginning of a new modernity era, and undoubtedly, it holds the root of the democratic State which has been called social or Wellbeing State.

Box 1Women and State, a complex relationship

Contradictorily, enlightenment and liberal society ideas establish granting equality of rights, but this does not apply to women. During this phase of the establishment of the modern State, legal-formal citizenship was incomplete. Women’s incorporation into wage labor in deplorable conditions and their exclusion from education, ownership, and other civil and political rights granted by modern society were determinants that led to women’s claim for equality. Women mobilized into what originated the feminist movement.

As a result of these fi ghts, women’s right to vote was earned, as well as universal suffrage, which happened unrestrictedly for the fi rst time for New Zealand women in 1893. In the rest of the world, vote’s equality between men and women was slowly generalized in the XX century. In some countries though, «white» women could vote before indigenous or color women.9 It was only into the XX century when universal suffrage was acknowledged without restriction. In Latin America, countries that supported women’s vote were Ecuador, in 1929, Brazil and Uruguay, in 1932.10

Women’s fi ght for acknowledgement of political rights has not ended yet. Suffrage was only the beginning for acknowledging other rights such as equal salary, non-discriminatory treatment at work, punishment for those violent at home, and recognition of differences, among many others.

There are big differences among women as a result of excluding or oppressing relationships, ethnic origins, socioeconomic conditions and national or international geographic location, among others. Since its emergence, the modern State drags these differentiated relationships of power which persist to this day.

8 Díaz, E. (1998: 52).9 Regarding women’s vote, the 1945 Constitution of the Republic of Guatemala states the following: Art.9: Citizens are: 1. Male Guatemalans older than eighteen years. 2. Guatemalan women older than eighteen years who know how to read and how to write. Rights and duties inherent to citizenship include: to elect, to be elected, and to opt to public positions. Suffrage is mandatory and secret for all citizens who

know how to read and write; optional and secret for women citizens, optional and public for illiterate citizens.”10 Dictionary of New Zealand Biography: Sheppard, Katherine Wilson (1847-1934). Online document: http://www.dnzb.govt.nz/dnzb/

See Box 1.3 in the 2009/2010 NHDR (UNDP, 2010)

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2.2 The democratic State

Some confusion regarding the origin of Rule of Law exists. An important step in its establishment was the consolidation of written law. With the rediscovery of Roman law, the law was valued as a political instrument to the service of centralized power of the State before disperse local powers (feudal lords-vassal communities). Law slowly ceased to be the expression of tradition, religion, and local issues, to become the expression of a general, more comprehensive will. Positive law was created by a Parliament or National Assembly, and consequently, it was the manifestation of a majority representation. Ordinary laws subordinate to a fundamental law which is the Constitution or its equivalent.

The acknowledgement of citizen rights and guaranteeing them are parallel to fulfi lling obligations and respect of law by all. The separation of powers regime was a demand from the new legality which advanced throughout the XIX century. Such separation is expressed in the functional independence of said powers, e.g., enactment of laws is a function of the Legislative Branch and their enforcement corresponds to the Executive and Judicial Branches. It is worth clarifying that a rigid formal separation of those powers is not possible, because their unity is given by the State of which they are a part. The idea is a division of functions and jurisdictions, with several mutual interventions.

All of these legal developments belong to the past of the most consolidated democracies. Rule of law is an old conquest; it still constitutes an objective in new democracies escaping from traditional domination. Rule of law is redefi ned and important in weak States or those walking towards democracy. This has created some confusion between Rule of Law and a democratic State. A democratic State is a Rule of law State, but not the other way around. In a non-Rule-of-Law-regime what prevails is arbietrarity, casuistry; in general, a particularism in the use of power, which in practice, translates into diverse ways of patrimonial politics (patronage).

The democratic State is both a historic phase and a way of functioning. It is qualifi ed because of its inclusive dynamics. Democratic ideals, to which the democratic State aims, can only be achieved if they are based on the State; because this is the (main) instrument for eliminating the distance among citizens whose formal equality is not accompanied by a real equality. Currently, the democratic State is necessarily a Rule of Law State.

In the democratic State, administration of public resources is legally set in order and monitored by a system of administrative-contentious resources. Control or supervision of public management is important before the opacity of managing resources and functions. A double control exists: horizontal (monitoring by society) and vertical (supervision by State institutions).

2.3 Plural State

This is a desirable modality of the national State because it corresponds to the attention of all demands inherent to a heterogeneous, multi ethnic society. Legal recognition of cultural and ethnic-based differences is incorporated into the structure of power and all its consequences are assumed: the end of the monistic legal character of the State and of the policies which imply or search to impose the nation’s homogeneity. Building a plural State does not only require accepting existing diversities, but also the corresponding political effects. Likewise, establishing a Plural State forces to assume the consequences of colonization, which for centuries has turned indigenous populations into a subjugated collective, exploited and discriminated, especially women. In fact, indigenous women occupy the lowest strata and positions in society, thus the ethnic and class aspects are reinforced with multiple exclusion results.

A Plural State entails a radically new power, an alliance of social forces able to create democratic institutions of plural character, qualifi ed as such because many actors participate inclusively in their establishment and administration ensuring that indigenous citizens, men and women, do so under the condition of accepting that they belong to the nation. The Plural State’s characteristics include a power capable of addressing and regulating multiethnic reality and representing it, as well as promoting ethnic equity, citizen equality and nation’s plurality; a power able to represent and express the interests present in a society, including those of the indigenous populations who participate in the plural power.11

2.4 The XXI century State and globalization

We are living the beginning of a new era where the State fi gure is in a transition stage between the State of the future and the current power or national State, admittedly territorially based, with precise spaces that defi ne its political domain environments, legitimate violence control, spatial legality and development of a culture of national roots. All of this is summarized in the notion of national sovereignty.

11 For more information on this statement, refer to PNUD (2005: Chapter 14).


C 1Globalization is a factor of many dimensions, especially in terms of economy and fi nances, but also in terms of population, culture, and political-military aspects. These relationships tend to become interdependent, closely connected, networks; not in an equality level but with the prevalence of big fi nancial centers, producers of new information techniques and interpersonal communication. A coincidence between countries with high economic-fi nancial power and monopoly of scientifi c-technical development exists. Consequently, renewed ways of domination/dependency relationships emerge.

The so called new State capitalism is a recent phenomenon. It consists of nationalizing important economic assets. This phenomenon began as a control movement of the State after the 1973 petroleum crisis. It continued to mid-1980 in the XX century with the emergence of new strong economies (China, Brazil, India, and Russia) and then with the so called Sovereign Wealth Funds (SWF), which threaten western domain of global capital fi nancial fl ow. The biggest leap of State capitalism took place in 2007-2008, when the stronger States acquired the most important enterprises of their own markets. In fact, some States already own the biggest petroleum companies in the world and control 75% of world energy reserves. A new State power emerges, with inedited modalities in its political manifestations.12 It is about a movement of capital which has its direct reference in the State and not in the private sector, which undoubtedly will defi ne in a new way the market functions.

Conclusions

It is critical to recuperate the State for the next decades of the XXI century through diverse elements grouped in three alternate, eventually concurrent components: a) revalue the function of the State. The topic is no longer whether the State must or must not intervene, but how it must intervene. Again, it is critical to treasure public institutions, administrative and technical abilities of the State and political stability. All of them are conditions of long-term economic development;13 b) recognize that democracy does not generate better results if not by means of the State. Moreover, it is necessary to talk about the democratic State as its indispensable modality; c) strengthen the importance of the State as promoter of persons’ human development, exercising new social roles, focused towards improving the standards of living which promote the fl ourishing of well-being and the individual or collective agency.

12 Bremmer (2009: 15-26). Bibliography on this topic is abundant.13 Formulation by Stiglitz, quoted by Iazzetta, O. (2007: 103).

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13Formation of the national State in Guatemala: decisive stages (1821-1985)

Chapter 2Formation of the national State in Guatemala: decisive stages (1821-1985)

The study of the formation of the State in Guatemala is taken from a historical-structural perspective whose starting point is the end of the colonial status which Spain had established since 1524. The «rupture» of such condition created the opportunity for a republican, independent, and national State project. In the period studied, 1821-1985, six decisive moments are identifi ed in the establishment of the national Guatemalan State: fi rst, the liberal reform during Mariano Gálvez’ provincial government (1828-1837); second, the conservative restoration (1839-1871); third, the national State foundations (1871-1897); fourth, the political stagnation (1898-1920); fi fth, the liberal State crisis (1930-1944); sixth, the developmental State (1944-1985) with its phases: democratic (1944-1954) and authoritarian (1954-1985). When addressing these moments, features of the modern State described in chapter I are resumed.

1. The federal State and Guatemala’s State (1821-1839)

It has been said that the independent State was established with the ruins of the colonial power. In Guatemala, the colonial foundations were kept in key aspects such as political institutions, legal forms, social domination instruments, and maintaining creole’s interests. Deciding that the maximum colonial authority, captain general Gabino Gaínza, would continue as chief of the new independent power marked a path and a transaction style with the past that would continue. An important fraction of the dominant former colonial group, conservative Creoles, infl uenced the end of the independent republic, which was incorporated into Mexico, by that time an Empire.

After the annexation to Mexico failed, the autonomous destiny of the region was considered again. A decisive moment was the creation of the fi rst Federal Congress ( June 24, 1823), whose most important product was the Federal Constitution

(November 22, 1824) and the decision to establish the Central America Federal Republic. The federal modality established fi ve autonomous provinces and a federal district. With that decision, the liberal fraction, strongly infl uenced by the United States model which was already successful, succeeded. The conservative vision was centralist in so far as it reproduced the hegemonic notion of colonial nature. The fi rst legal existence of the Guatemalan State was its condition of an autonomous province, or federal model. The Constitution of the State of Guatemala (1825) established limited citizenship to literate male of legal age, who had some fi nancial resources. Furthermore, it legislated under the liberal idea that property makes men free. For that purpose, wasteland and communal land were available for sale. The State facilitated their redemption.

In a setting full of instability and confl ict, what has been called the fi rst moment in the formation of the State initiated when the provincial government took a fraction of liberal creole led by Doctor Mariano Gálvez (1828/1837). This group of owners, businessmen, and intellectuals appeared as the promoter of the fi rst liberal reform, which was full of modern, lay, and anticolonial measures of strong foreign inspiration. The program of the so called Liberal Party included the European colonization, promoting mining, expropriation of Church property, roads construction, freedom of press, slavery abolition, end of the «Indians’ Republic», justice applied according to the Livingston Code (or jury trial), renovation of municipalities, colonization of wasteland, ports opening, application of the Lancasterian education method, legal marriage and divorce laws, tithe abolition, religious freedom, cemetery administration, lay education, and others.

The «State» represented by Gálvez was weak and incomplete. As an initial process, it was a cyclopean task to substitute the State fragments of the colony with others typical of modernity. Ideologies supported by the enormous Catholic Church power also made this goal diffi cult as well as the immense


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14 Taracena, A. Unpublished paper. 15 Pinto, JC. (1996: 214) y Woodward, RL. (2002).16 Pinto, JC. (1996: 35). 17 A list of registered traders and planters in the Commerce Consulate between 1800 and 1839 includes 168 last names, but only twelve repeat in the three lists. Wood-

ward, R.L. (2002: 140). 18 Religious orders were the biggest owners of land, estates, cattle, houses, sugar mills, and other material goods. 19 Taracena, A. (1997b). 20 The conservative elite commission’s manifesto that appointed Carrera as chief for life includes the number of clerics, militia, offi cers, and personalities who signed: 2362

citizens. This means, in other terms, that these citizens represent 0.27% of the total national population who elected him. This is just an example of the extension of citizenship in that time.

21 Holden, RH. (2004).

weight of tradition and social and economic foundations of indigenous citizens opposed to change. There were agrarian confl icts between communities and landholders, as well as with the liberal authority because of its agrarian policy. Discontent in the east of the country, not less important, was due to the destruction suffered by the region when it was the main theater of more than twelve years of federal wars. That discontent became the fi rst expression of the social protest by masses of the independent period.14 This was exacerbated at the beginning of 1837 by the decisions of the stalked liberal government to combat the cholera morbus epidemics. Peasant mobilization was perceived as a threat both by liberals and by conservatives.15 The so called «Mountain Uprising», which started in Santa Rosa and spread throughout the East, culminated with peasant occupation of Guatemala city in 1838, with general Carrera as rural chief.

In summary, the forming nation State went through two decades of wars and social confl ict which resulted in the end of the federal Republic, the weakening of political forces supporting it, bankruptcy of the fi rst liberal project, and the raise of conservative creole to power. Morazán’s defeat in Guatemala City (1839) and the success of Carrera before the greatest liberal army concentration in the Battle of Arada (February 1851) are facts that, more than possessing a military character, have a political appearance and close an era. 16

2. Conservative restoration (1839-1871)

This second moment is defi ned as a conservative restoration because the actors who led a new power experience (1839-1871) implemented policies and supported on colonial institutions. They also belonged to the most traditional creole oligarchy. They believed in the Habsburg’s reasons and had a conservative mentality. It was an incomplete «restoration» because the weight of the colonial aspect did not paralyze the emergence of the State features process, which, in some aspects, continued arising.

The restoration impetus altered the postcolonial State’s profi le. After 1839 religious communities, the Catholic as the offi cial one, ecclesiastical jurisdiction, and religious festivities were reestablished. The Commerce Consulate and

the Friends of the Country Society led again the economic, commercial, and fi nancial life.17 In 1840, legal marriage law was annulled and marriage dissolution was prohibited. In October 1852, a concordat was signed with the Holy See and the Church presence was reinforced. The Church took charge of administering hospitals, cemeteries, women’s prisons, and the Civil Registry (which handles registration of births, deaths, matrimonies, heritage, etc.), and, above all, of education, which was considered one of its natural functions.18

Two historical facts reveal the State sense of this second moment; one, the military defeat of the separatist political project from the important agrarian-craft highland elite. The project had secessionist purposes fed largely and based on economic autonomy, as well as on the strong regional identity which led its leaders to proclaim the Highlands Republic (1840 and 1848). An army with full indigenous support, led by Carrera (and then by Mariano Paredes), ended the division.19 Another fact, the decision made on March 20, 1847 to separate from the federal Republic and proclaim Guatemala as an independent State. The decision was positively valued by Catholic Church, by dominant groups of the provinces, and above all, by English interests led by Mr. Chatfi eld, British consul. By that time, English smuggling was the symbol of free commerce in Belizean code and the United Kingdom market opened as the fi rst in importance.

The 1851 Constitution ratifi ed the independence of the province turned into State and defi ned the restrictive condition of citizenship: only literate men, with a profession, occupation, or signifi cant possessions, «heads of family», above 25 years (or 21, should they be married). Conservative’s nation was a very small community. It was composed only of creole-mestizo elite who had leading functions, a minority, that in a rural society, monopolized land, education, and commerce.20 This elite was slowly expanded with a brief mestizo portion which met citizenship criteria. They were priests, generals, lawyers, intellectuals, businessmen, harvesters. White-skin immigrants joined the elite. The «national» identity was restrictive and the nation was not homogenous: it could not be in its origins.

Wars in all countries helped to defi ne the State and the national aspect. They stimulated identities.21 In Guatemala, Army institutionality is a process which «advanced» when armed

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22 Clegern, WM. (1994: 152).

peasants were even more and permanently armed. They ceased to be peasants and became soldiers. After the 1848 highlands defeat, recruiting began and irregular salary forms were prescribed. Life in the barracks, technical hierarchies, and initial foundations of the Army began. 22

Economy and State advance when a national market is established. This could not be accomplished with the rachitic dye agriculture, colonial product that reinitiated its raise after 1830, when the cochineal replaced añil [TN: The indigo plant or the blue dye obtained from it]. Dyes were harvested in small and medium plots with a simple infrastructure in the hands of small owners in areas of Amatitlán, Sacatepéquez, and Santa Rosa, and then in other regions of the country. Crop mobilized numerous indigenous labor in times of harvest, which was subject to natural cycles and English demand. It was a production without a geographic scope, with small but numerous mestizo owners. It created a rural elite and a strong intermediate commercial sector, a mercantile capitalism operation of low capitalization. After 1850, coffee crop began to expand, especially in Costa Cuca and among landholders of Los Altos. Land needs as well as labor, credit, roads, and other infrastructure for export did not receive much attention by the conservative power.

During the Thirty-year Regime, there was some zigzag progress in State structuring. There were all kinds of limitations both in the political social aspect as well as in the national and cultural ones. Regarding the former, the role of the Church, religious corporations, the Commerce Consulate, and the Friends of the Country Society, among other institutions, limited the scope of the public-State jurisdiction. Regarding national and cultural limitations, the homogenous nation could not project itself, since domain relationships were essentially excluding.

3. National State foundations (1871-1897)

The 1871 military victory, led by generals Miguel García Granados and Justo Rufi no Barrios, started the period called liberal. During that period, which we identify as the third moment, the State consolidated in relative terms. It is still a debate if the 1871 exploit constituted a revolution or not. Nevertheless, it can be said that it was an intense period of modernizing reforms supported on colonial work modalities. It is called ‘liberal’ not only because it replaced the conservative power, but also because of its inspiration on philosophical positivism and liberal doctrine. The next paragraphs summarily analyze the most delineated State

features. They were reached during the liberal period, in an order that does not imply any primacy:

3.1 Class or national elite

In Guatemala, this «national group» was formed by the most powerful fraction of coffee growers and businessmen who towards the 1860s already shaped a coalition together with army people and politicians, without any relationship to outside powers. By elite or national class we understand the dominant fraction whose members had the ability (or created opportunities for) having access to power. They supported on strength resources, promoting their economic interests; organizing themselves politically and creating ideologies to increase their control. There is no possibility for a State without an independent dominant national class, which cannot exist if it does not have economic resources, force instruments, and a bureaucratic apparatus which allows it to set in order society according to its interests.

3.2 Economy and the interior market

Power does not only develop through politics; it requires an economic structure of national scope, permanent, able to create and to sustain the political architecture of the nation. From the mid XIX century, a productive structure was constituted with dyes fi rst; it later became more dynamic with coffee. The farm (or estate) was the productive unit and the farm system was the political support. It was the socioeconomic and cultural microcosm where domain relationships occurred and existing inequalities reproduced. The coffee farm supported on the big property and the labor offer which, because of the State’s intervention, was compulsory, abundant, and cheap.

3.3 Power centralization

The concentration of power, characteristic of every modern State, alludes to the military and expansive economic force of the dominant class’ interests. Their force incorporates territories, human groups, and economic wealth and puts them to its service under central jurisdiction. The liberal State tried to comply with that necessity when the commanders’ and the departmental political chiefs’ functions merged. Political-military power was concentrated as presidential power. In another dimension, when political-military power succeeded at reincorporating the extensive highlands region and it was weakened when it lost territories which remained as part of Mexico, England, and El Salvador. In fact, the federal pact break was a pro-State decision. The creation of stable authorities, such as the conservative regime, favored political


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23 The Military Code (1878) established political functions for graduated offi cers to serve as arms commanders, and then after the disposition included in the Organic Law

of the Political Departmental Government (1879) to be political chiefs. Both functions were performed by the same person. 24 Organic Law of the Political Departmental Government, Decree 244, of 1879. The «free municipality» was established throughout Latin America, since it refl ects deep

Spanish medieval tradition. 25 Notion suggested by Gustavo Palma Murga.26 ‘Modern’ in the terms established in Chapter I, i.e., the State that ensures for itself the unique control of force instruments inside the nation.27 Herick, T. (1974: 190)

concentration. The expansion of the «agricultural frontier» under the liberal regime, as well as the establishment of land, electrical, and political communication routes, generate more effi cient control forms, with more power concentration. Similarly, local power militarization must be considered.23Law recognized the municipality as an independent entity and with (formally) elected authorities.24

3.4 Homogeneous/heterogeneous nation

Power concentration, formerly mentioned, takes place in the scope of the nation. In the case of Guatemala, because of origin circumstances the nation could not be homogenous. Constituent forces did not search to create a homogenous nation, but a homogenizer one.25 1879 Constitution proclaimed that Guatemala was a sovereign nation, with a representative, republican government. It recognized nationality to those born in the territory, and citizenship to male over 21 years of age who had an income or a profession. Through a modifi cation, in October 1885 the defi nition was completed when demanding that the citizen be literate. Thus, indigenous populations were not incorporated as citizens, but as labor force. This was enough for the purposes of the national class.

When the State precedes the nation, as so happened in Guatemala, homogeneity does not exist previously. In the beginning, there can be a non-homogenous nation, which would be the result of miscegenation or cultural assimilation policies, promoting education, improving life and work conditions, the existence of fewer inequalities such as class differences, practicing positive discrimination, and in general, encouraging participation as a practice that leads to less differentiated citizens. In Guatemala, the existence of an elite, a homogenous dominant class or group, was enough to begin founding the Nation-State.

A heterogeneous nation needs to be analyzed fi rst in socio-historical terms. The modern State26 is the capitalist Sate. Its economic base implies, inherently, a social stratifi cation that generates class differences which are accentuated by ethnic-cultural heterogeneity. In fact, what is known as a marginal inclusion exists. Indigenous people are part of the nation; they live on the edge, including their participation in the work market and in marginal forms of consumption as a result of levy.

3.5 A professional army

Constituting an army is part of the State confi guration. The State power is the center of the political domination agenda. Carrera’s power was supported on a not-yet-professional army. Very soon, liberals would take care of this purpose. At the end of 1872, a Spanish military mission arrived in Guatemala with the purpose of creating a Polytechnic School in order to have academic military offi cers.

3.6 Monetary and fiscal system

Two State features relative to the nation are common language and currency. The currency is the market transaction instrument, a fortiori, without it, buying or selling merchandise, paying salaries, or collecting taxes is not possible. Guatemala was an example on how recurring diffi culties to achieve a stable currency hindered mercantile transactions and delayed payment of external debt. They were an excuse for not paying labor and they weakened the country’s fi scal system. The fi scal regime is also important since it constitutes the master beam of the State administrative structure. This necessity relationship between the public power and a fi scal system is two-way: only the State can collect taxes, but only by doing so it becomes a modern State.

3.7 The Church and the State

A profoundly anti-clerical climate was generated in Guatemala. The liberal regime opened an uneven combat front: it took measures of diverse political and cultural scope to ensure that public worldly functions defi nitely became the State’s. The Church would take on matters that had to do with the spiritual life. On September 3, 1871 Jesuits were expelled. In December of the next year, tithes were prohibited and in January 1873, Ecclesiastic Courts and their penal and civil jurisdiction were suppressed. Then, the Church control over the Civil Registry, teachers, and marriage validity ended. Cloisters and their property were suppressed.27 The use of religious habits in public and processions were prohibited, among others.

3.8 Frontiers

The problem of territorial boundaries was the cause of wars, losses, and annexations. It is an important issue because frontiers do not only defi ne internal State jurisdiction

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28 On September 21, 1981, the United Kingdom granted the independence to Belize. On September 30, 2002, Guatemala and Belize agreed to resolve the confl ict, which is still pending.

29 Estrada Cabrera disobeyed the United State policy to expropriate the Germans during the First World War, as well as the recommendations to establish fi scal and mon-etary order according to the Kenmmerer Report. USA infl uence in that period has not been assesed enough.

(domination boundaries), but they mark abroad where the neighboring States begin. There was a preliminary accord with México, when in September 1847 Mexican authorities unilaterally decided that the Soconusco district be added to Chiapas and, consequently, to the Mexican nation. The defi nite treaty was signed by Barrios in New York on August 12, 1882. Through this, Guatemala lost 50,000 km2. On April 30, 1859 a boundaries treaty over Belize was signed with Great Britain. This established a commitment which the latter did not honor.28 Hence, the liberal government submitted several unsuccessful complaints and the limits with Guatemala remained vague.

4. Oligarchy

Expansion of coffee production and of various institutions established for its export would have not happened without the State’s direct impulse, without the commitment which shapes the identity between power and coffee. «Coffee is the nation», stated a landowner. Free land delivery or at «political» prices, diffusion of crop techniques, import of strains or samples, presence of experts coming from Costa Rica and Colombia, and then communication services, legal registry, and credit, are only a few examples of what constituted the intimate nature of a power openly dedicated to stimulate and protect the interests of the dominant elite. In a two way relationship, the State protected coffee growers and these shaped the State.

5. Political stagnation (1898-1920)

In 1897, there was a profound crisis in the coffee international market. On top of this, the regime inherited a serious monetary and fi nancial crisis. Private Banks were authorized to issue tender legal notes and the State lost monetary authority and became a debtor. Banks’ obligation to pay in silver or gold currency was waived before the submission of bills. Payment of taxes in paper money was allowed. The exchange rate fell and monetized economy was more weakened.

The aforementioned crisis affected State’s functions and features. When attorney at law Manuel Estrada Cabrera took offi ce (1898-1920), economy grew with so many diffi culties that it seemed like stagnation. By that time, other adverse factors took place such as the earthquake that destroyed a portion of the capital city (1916-1917) and the First World War effect. With Estrada Cabrera, the political system stalled. Consensus was substituted by reelections without pluralism or competition. The dictator leaned on people’s organization as Liberal Clubs,

some sort of vertical populism which appears as the fi rst use of the population as a source for electoral maneuver.

During these years, there were three economic phenomena with medium term effects for the State’s constitution: a) foreigners’ growing participation, mainly Germans, on coffee business; b) the emergence of banana as an export product; the fi rst concession of national lands was granted to United Fruit Company (UFCO) which, since then, began to grow throughout the region; c) the very same banana capital began to control the rail system. UFCO’s and International Railroad of Central America’s (IRCA) interests became a powerful political force during the fi rst half of the XX century. Likewise, Tropical Radio & Telegraph Co. produced all electrical energy used in the country.

In this period, the State’s sovereign power weakened by making huge concessions of national wealth without compensation, without taxes, and on the national market side, by accepting productive structures which functioned as enclaves and did not benefi t the same national market. Coffee growers lost competition as producers in relationship to foreign growers who had high levels of productivity, and also by sharing as minority «partners» the profi t share with foreign exporter intermediaries. Dictatorship, as such, did not admit any form of organization and political participation. It remained as a jealous autocracy supported on police to exclude or punish.

The crisis that expelled Estrada Cabrera was led by military, political, religious, union personalities; some of them were organized in the Unionist Party. The leader was removed by the National Assembly, which declared him insane. It was, in fact, an ecumenical alliance made up of artisans, conservative politicians of the oligarchy and military men, heirs of liberal tradition. But, above all, by determinant infl uences of the United States’ policy29 which encouraged unionism and pressured Estrada Cabrera.

6. Liberal State’s crisis (1930-1944)

Estrada Cabrera’s substitution opened a moment of political, democratic, developmental potential which was frustrated. There was an awakening of social forces suffocated by the dictatorship. School generals José María Orellana (1924-26) and Lázaro Chacón (1926-29) returned. In February 1931, General Jorge Ubico was elected as the opposition candidate.

The relevant aspect of the 1921-1929 decade was the Constitution reform to prohibit presidential reelection (1927). New concessions to IRCA were granted. UFCO was granted


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30 Dosal, P. (2005) Miguel García Granados, grandson of the 1871 leader, and Ubico’s close friend was part of this group. He later fl ed to Mexico.31 Gramajo Morales, H. (2003: 213), quoted by Arévalo, B. (2008: 35).32 The military commissioner fi gure has played a role sometimes indispensable in the local military control network, in the base of a power pyramid.

land at the shore of Motagua under onerous conditions for the country. In terms of setting the country in order, the United States’ interest included supporting expert E. W. Kemmerer’s recommendations related to adopting gold standard and the establishment of a Central Bank. Notwithstanding monetary reform, at the end of 1927, the quetzal was created with dollar parity and the end of the economic and traditional monetary disorder began.

The 1929-1930 world crisis generated a fi nancial crack which, in export societies, affected fi rst international trade expressed as a fall of prices/volume in exports and then the State’s demand and income. In Guatemala’s case, its expressions did not happen in the fi nancial sector but in export agriculture. Capital accumulation was reduced and for the fi rst time and during over a decade, it affected coffee bourgeoisie. This contributes to explaining the deep discomfort that divided the oligarchic elite. Defl ationary policy reinforced in the long term the negative effects of the fall of the exports-based income. Public expense was suspended radically, including extreme measures such as restricting bank credit, suspending the scarce public works, and reducing bureaucrats’ salaries.

Jorge Ubico took offi ce as President of the Republic in 1931. Ubico’s State’s reason, in the heart of a suffocated society, was the obsession with order defi ned as immobility due to obedience and the hard passive acceptance of public measures which affected almost everybody. Middle classes resented because of the lack of proposals of cultural innovation, because of the punishment to legal protests and the opposition to economic and social renovation projects. Examples of upset manifestations include: an indigenous upraise in Totonicapán quickly repressed in 1930 and the strike of Cementos Novella workers in 1931, which moved some and disturbed others. On the other hand, in 1932, there was a raise of 30,000 indigenous people who were massacred in El Salvador. This event had deep political effects throughout the region. Ubico used these effects when arresting some 300 people accused of communists. By that, he silenced the union movement. The General did not tolerate protests by the agrarian bourgeoisie. In September 1934, a group of important politicians and high level Ubico offi cers was accused of conspiracy. A Military Court condemned to death 16 of them as well as 60 accomplices who had to witness the execution.30

The regime reformed the old liberal legislation. This was substituted by a norm that strengthened the role of the State and its domain relationships over peasants. «Vagrancy» was declared a «crime» which was committed if one did not prove to have some profession, some level of income, or farming.

The «guilty», identifi ed by the State, had to work between 100 to 150 days in a coffee property for a salary established by the owner. Vagrancy law allowed the Sate to exercise some control which would increase with the «road tax». It determined that all Guatemalans, men and persons of legal age, had to pay two quetzales (equivalent to two dollars) or work for free for two weeks in road construction. The government militarized the postal service, customs, and institutions in charge of census, cartography, some health services, and even the symphonic orchestra and secondary education. Coronels were appointed in charge of these institutions and they were granted the rank of reserve offi cers.31 Public and private meetings were prohibited, except those authorized by the police. State militarization increased with the creation of military commissioners. The most relevant person in each community was appointed; he was considered as the «eyes and ears of the Army ».32

On the other hand, USA military assistance granted during 1942-43, because of the Second World War and the training of an offi cer generation abroad, did not strengthen Ubico’s personal power but the Army’s as an institutional power which gained autonomy since then. These circumstances may account for the division of the Army when Ubico’s resignation took place and of the various repressed political sectors: laborers, students, and teachers who protested in the streets demanding democracy, participation, and education. Social tension was forming the effect called pressure cooker. Under limit circumstances or situations, repressive bodies can no longer support on fear and on the auto regulation possibilities. In view of the «Letter of the 311», the University and public schools strike, and mobilizations in the streets, general Ubico resigned on July 1, 1944. His escape constitutes the beginning of the Liberal State crisis.

7. The developmental State (1944-1985)

The State that emerges in Latin America after the world war is called the developmental State. It associates the power with the more advanced capitalist development. The idea that economic development and society modernization could be the result of strategies elaborated and applied through political decisions by the State emerged. For a long time, classical liberal belief assured that capitalism development was an apparently spontaneous process, it had to happen. It was certainly a capitalism protected from the political point of view (military order assured it) though not politically promoted.

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33 As may be seen, there is no mention of the indigenous issue, almost ignored by constituents, absent in the political debate and not considered key in the agrarian reform project.

But in this postwar, new interests and social aspirations, predominance of an urban population, and social stratifi cation changes emerged. New middle classes emerge. They are profoundly differentiated in their interior and characterized by their education levels, their consumption patterns and their political activism. The intensity of the expectations and social demands which appeared around these years, posed the need to change: to leave behind agrarian society and consider development as a reachable political goal. Power and development meant that change is a political problem.

The developmental State was, in part, a political program which raised equality and democratic hopes. It was a power with new attributes and functions to answer positively to expectations derived from the attempts to conquer the previous period. The developmental model was established as an intentional, economy reformist planning, as well as with a national ideological tint. There were new social conditions and an economic juncture stimulated by prosperity driven by postwar boom.

The theoretical conception that conceived the developmental State was different than what the laissez-faire liberal State had been. The Keynesian vision was predominant in more developed societies. It infl uenced valuing public policies above the market as an economy regulator mechanism. It considered the State as a generating source of impulse and guidelines for economic growth. It was a thinking style that linked economy with politics and society with the State in a new way. Many policies and many politicians in Guatemalan were Keynesian without knowing it, others, reluctantly.

7.1 Democratic stage of the developmental State

The October Revolution initiated the liberal State crisis in Guatemala. Society promoted modifi cations that can be summarized in four facts which, as political milestones, they mark the change. The fi rst one, when popular pressure forced general Ubico to quit. The result was the signifi cant increase of organization and participation of these unknown social forces. This led to the military uprising of October 20, which had university students’ participation. As a second result of said uprising, general Ponce, interim president, and together with him, various generals attached to the old regime, were expelled. The Government Revolutionary Board was established. It made decisions such as disolving the dictatorship Congress and calling for constituent elections. The third fact was the enactment of the Constitution of the Republic in 1945, which abolished the 1876 Constitution and

established the framework for amplifi ed nationality, social rights, and rights of some legal institutions. The fourth fact was the electoral triumph of the anti-Ubico forces candidate, Doctor Juan José Arévalo, in March of 1945. Thus the country had a civil, democratic regime which was the result of elections.

Unlike the liberal State, support to the new regime came from mobilization and organization of popular sectors, laborers, and peasants led by middle class parties or leaders. One of the facts that better defi nes this moment was the (defi nite) irruption of middle class into political and social life: students, liberal professionals, teachers, offi cers, small owners, and artisans.

Statements approved by the Government Revolutionary Board and incorporated into the 1945 Constitution included: ensuring autonomy of the three powers of the State; power alternation; prohibition of presidential reelection; recognizing the right to rebellion; reorganization, unpolitization, and new functions of the Army; municipal and university autonomy; recognition of political parties and minority electoral representation; mandatory suffrage; citizenship for literate men; public vote for illiterate people, though only in municipal elections.33

Among the outstanding measures that subvert traditional order are: the Labor Code (1947) and Executive Decree 712 (1949). The former grants rights that defend labor condition and salary. It opens spaces to unionization and the right to strike in order to reach collective labor agreements. The latter has an even bigger meaning by forcing landowners to lease land to peasants and collect rent not higher than 10% over the production value.

It is worth adding the bank reforms which included the Central Bank Law, the Monetary Law (1945), and the Industrial Promotion Law (1947); the creation of the development bank, the Production Promotion Institute (Infop, Spanish acronym 1948); and cooperative promotion. All of these measures established that development is a State responsibility. Social policies defi ned in a particular way the State’s functions. A notable impulse to public education and health care was granted (the Guatemalan Social Security Institute was created in 1948).

The change and reform process initiated by Doctor Arevalo smoothed the road for his successor, coronel Árbenz, to submit a development program which faced foreign and


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34 With obvious reason, Guerra Borges states that «Arévalo was a reformist; hence, he was a president of this time. After so many years of mandatory immobility and forced silence, it was indispensable to travel that period so that society overcame its numbness. That was a period of accumulating strength and a self-examination. Without reforms there would have not been a revolution». Guerra Borges, A. (1988: 6).

oligarchy interests. Arbenz proposed an agrarian reform that aimed to end the unproductive form of land property and belated work relationships derived thereof.34 Agrarian reform intended to reach the development of an independent, capitalist economy, oriented to increase the living standards of the population. The instrument to reach this goal was modernization of work relationships in agriculture through expropriation of estates bigger than 270 hectares which were not being cultivated to grant them as usufruct plots to peasants who demanded them. Arbenz’ program also had a more ambitious goal. It included the construction of a road to Puerto Barrios, a port in the Atlantic, and a hydroelectric power plant which would rise in four times the installed capacity of the country. Railroads, the only port in the Atlantic, banana plantations, and electricity generation belonged to United States companies; hence Arbenz’ project attacked their interest directly.

The process radicalness, as then perceived, explains the nature of its goal. This radicalization was accentuated, partly, because of the active infl uence of communist leaders around president Árbenz. The conspiracy of the Central Intelligence Agency (CIA) and of an ample coalition of military men, politicians, entrepreneurs, and religious men, gives an account of Arbenz’ spectacular fall. However, what articulated the complot were UFCO’s interests and the perceived threat of Arbenz regime as «head of shore» of the Soviet Union. The end of the national-popular project was also the end of the democratic regime, political parties, and social organizations, the escape of the leadership, and others’ death and clandestinity.

7.2 Authoritarian stage of the developmental State

The bureaucratic-authoritarian aspect was called differently in Guatemala: the counterrevolutionary State, so called because it violently substituted the Arbenz’ coalition: middle class democratic parties, laborers and peasants organizations, students and professionals groups, convinced of the need of reforms that the Revolution had undertaken. In Guatemala’s history, military men are heirs of a deep power tradition, guardians by antonomasia of security, so that when anti Arbenz discontent exploded, they led the triumphant coalition and took charge of power. Since July 1954 they led the authoritarian stage of the developmental State, which ended only in 1985 (after 30 years), with the advent of electoral democracy. This group headed the regime change with little success to establish the new State with the required stability. The 1954-1966 period was full of greater confl icts: the murder

of a Chief of State, fi ve coups d’états, three constitutions, three fraudulent elections, and two popular uprisings.

Of the varied change experiences that took place during this period, fi ve are analyzed because of their importance. The fi rst experience refers to army forces, the most important technical-organic institution of the State in Guatemala. From being an indigenous-labor recruiting Army (Barrios), it became a police-Army (Cabrera/Ubico), in charge of capturing and/or eliminating criminals and opponents. Starting in 1956, it became a counterinsurgency Army as part of army modernization throughout Latin America. In March 1963, armed forces, as an institution and as the result of a decision by the leadership, replaced president Ydígoras with his Minister of Defense, coronel Peralta Azurdia. From that moment, the armed institution would defi ne as such its own destiny and the State policies during the next 20 years.

The second experience happened in the market and economy arena, when the country lived its period of higher sustained growth in the XX century. Export agriculture modernized and expanded (cotton, meat, cardamom, and others) and the fi rst and more effective ventures to implant an industrial park were taken. Said park was destined, above all, to the Central American market, whose integration also began in those times. In the 1960’s, developmentalism with authoritarian style was the political regime modality more common in Latin America: economic change without political freedom.

The industrial phase, a project that had been tried several times, was also promoted in the 1960’s. This happened throughout Central America, at the end of the 1950’s of the XX century as part of international organizations initiatives such as the Economic Commission for Latin America (ECLA). In Latin America, the developmental State already applied successfully industrial promotion, protecting the national market and substituting imported industrial goods. In Central America, together with promotion and state protection policies, bilateral commerce treaties and a General Treaty of Central American economic integration (December 1980) were signed. This set forth the foundations for a regional market. Industrial promotion policies had the full support of the State.

At the heart of a domestic market, where more than half of the population lived in poverty, the alternative of expanding the consumer market throughout Central America was chosen. It is worth asking if regional integration is the result of the export sector depletion. The answer is no. Integration was

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35 Adams R. (1970: 319-345).36 El Salvador had a similar electoral model in similar dates. Call for elections happened every fi ve years from 1962 to 1979. In this last date, the model had a crisis; in

Guatemala it began in 1964 and ended in 1982.

the solution to the diffi culty of having a national market without industrial consumption power. The industry grew, but it remained as it is currently, with a productive structure of immediate consumption goods or light industry —as also called— and with a strong foreign investment.

Multiplication of economic activities translated into diversifi cation of interests in the market, but not in society. In Guatemala, coffee oligarchy remained as a dominant group; some of its sectors became industrial, multiplying their investments. The medium term result was the conformation of powerful owners groups with interest in traditional agriculture and in new agricultural items, in industry, commerce and as a logical result, the fi nancial sector.

Which are the effects that the State has experienced by promoting agricultural and industrial development? The fi nal product is a weak developmental State and strong owner classes. The State was not able to have agro exporters’ profi ts invested in new industrial items, as recent stories of Korea and Taiwan demonstrate.

The third experience refers to the organized emergence of private corporate business interests which wthin a few years reached a high level of internal structure and political coherence. All of this turned the so called private sector into a source of public power. The Coordination Committee of Agricultural, Commercial, Industrial, and Financial Associations (Cacif, Spanish acronym) was an initiative of industrials and businessmen created in 195735 which grew until it became a powerful political force, especially from the 1970’s in the XX century. Growing respectability of the business sector did not depend only on its organizational guild, but on its unifi ed diversifi cation in the agricultural, industrial, services, fi nancial, and other arenas. It so happened that, by looking after its multiple market interests, many times business initiatives became State policies. When these business initiatives were defended because of decisions the State might take, they infl uenced fi scal, monetary, and exchange policies, labor commitments and, in general, social policies.

The fourth innovative experience of the period being analyzed is political. It is articulated with Army institutionalization processes and its project to exercise power by controlling the State, following democratic formalities. This purpose, explicit since 1963, took shape in the 1966 elections, the fi rst ones in national history called for by the Institution. These elections promoted citizen participation/organization processes, a monitored electoral democracy «model» applied in various

Latin American countries. In Guatemala, this model was tried several times between 1966 and 1982. It was an institutional initiative of the Army directed to the society, it intended to solve various critical aspects of power: the legality of the Army being in command, and succession and rotation according to law. The «model» includes three elements: a) the existence of a constitutional order, in other words, a basic legality; b) the presence of political parties previously accepted; and c) general elections which would be called upon periodically36 to elect President, Congress, and municipal authorities.

This period, which defi nes the complex ambiguity of the authoritarian-developmental State in Guatemala, encompasses various features: it is about a highlighted developmental power, it seeks a dimension of authoritarian democracy and another one openly repressive, clearly counterinsurgent. For example, a temporary moment such as the period between 1978-1982 unifi es this triple and complex dimension of the State: important rates of economic growth were reached, at the same time, the fi fth presidential elections of this «authoritarian democracy» took place and the worst expressions of counterinsurgency were applied. The State and its «facade democracy» modality have a crisis with the fi fth elections in 1982. Military leadership breaks, and in 1985, it leads to the return of the neo-liberal democratic State.

The fi fth experience pertains to the guerrilla phenomenon arising towards the mid-1960s and late 1970s of the XX century. Guerrilla constituted the manifestation of a profound radical discontent originated on the way the national-popular Arbenz project was ended and on the repressive measures applied in the following decade to the social movements originated because of socioeconomic demands. Guerrilla insurgency was the necessary cause, though not totalizing, of counterinsurgent structures organization. The latter is found in the intolerant climate stimulated by the Cold War, in the social discomfort due to the increase of poverty, which was contradictorily caused by agro-commercial modernization and the serious democratic shortage. Counterinsurgency was a modality of military power which overstepped order and control functions the State is called upon to perform.

The inclusion of this fi fth experience is justifi ed by two reasons related to the State. The fi rst one is that the constitution of radical guerrilla forces gave the opportunity for components associated to assumption of Regnancy to be deployed and that military occupied State control positions beyond their order and control functions. Exercising violence against insurgents overstepped until it reached groups or persons who were only in legal and public opposition or who did


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not exercise any activity. The second reason relates to the fact that in the heart of this excess of violence against society, counterinsurgent actions were responsible of the murder of more or less 80,000 indigenous people whose villages were destroyed. Their culture was threatened. With this, sharply racist features appeared. They characterize all of this period. Against everything that could have been predicted, indigenous genocide has had, among others, an effect of the biggest importance: the emergence of a new political subject in the power scenes: indigenous people. Their presence is potentially decisive in defi ning their ethnic identity, not only their interests as Guatemalan citizens, but as bearers of rights and of specifi c demands.

8. Post conflict: democratic, subsidiary State

As a consequence of structure changes introduced by the international economic crisis, the internal armed confl ict, the regime change with the election of civilians and the participation of political parties of diverse signs, plus the pressure to apply economic adjustment policies, possibilities of a new State momentum increase. Changes in the elite demand new power and infl uence balance. Changes in the process generate different demands, different levels of support, violence, discontent, and coercion. Structural change generates a partial change in the structures for making decisions, infl uence, and control. It also motivates modifi cations to the degree of power centralization and decentralization, to the level of power concentration and institutionalization, thus transforming representation, autonomy, and composition of system structures. The State, thus beginning to confi gure from the 1985 Constitution and from the fi rst civil government, of 1986, is subject of analysis in this Report.

Box 2Plural state construction

Indigenous fi ghts and organization, and in general those from democracy immediate future, demand the need to take into account a multicultural and multi ethnic nation reality. The democratic State period, already addressed in various national Reports, points directly to a heterogeneous, yet inclusive nation. In Guatemala, if the State of the future has to be democratic, it must have an inclusive drive: it has to be a plural State.

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23State and human development, a necessary synergy

Chapter 3State and human development, a necessary synergy

37 Refer to Sen, A. (2000); Nussbaum, M. (1985); Alkire, S. and Deneulin, S. (2009).38 Refer to Alkire, S. y Deneulin, S. (2009).

Human development is based on a group of ideas and theories whose purpose is to focus the goals of said process in people’s freedom and in social contexts favorable to it. Even though there is not an explicit association with specifi c theories or ideologies, there is a close relationship between the type of State that rules a given social organization and the human development results. This chapter discusses characteristics of this relationship and it examines the function the State may fulfi ll.

1. The human development approach

1.1 Functionings, capabilities, and agency

The human development approach differs from other approaches because it emphasizes the importance of freedom in contrast to realizations. Another important difference is people’s role in the process. While other perspectives visualize persons just in one side of the coin (means or benefi ciary), human development poses the person as the end and also as process agents, through individual and collective actions.

Human life may be expressed in a group of functionings, i.e., a group of states and actions, everything a person is and does. The term capability has been suggested as the group of possible functionings which a person is capable to choose. The group of capabilities refl ects a person’s freedom to live a certain type of life versus another one.37

Human development is the process of expanding freedom to reach valuable accomplishments. In other words, an expansion process of the persons’ group of capabilities in order to accomplish valuable functioning. The capability group includes both options to reach reasonable wellbeing forms as well as the agency capability. Development depends

on a person’s freedom to make decisions and to work towards key objectives.

Agency is a person’s capability to act, and particularly, to participate in decisions that affect his life in the social context. Persons are agents who act to reach their objectives. Agency capability is limited or enhanced by the context, which includes individual, environmental, institutional, and socio-political factors. That is to say, persons must be actively involved in defi ning processes that will shape their lives. By focusing on persons, human development needs subjects’ participation as agents. Agency, understood as the possibility to decide, is a freedom in itself and enhances (is instrumental to) the achievement of other valuable operations.38

1.2 Basic principles in the human development process The approach has some of the main principles for the human development process highlighted by different authors who have promoted it. Following is a summary of those principles:

a. Equity recognizes that those who have had unequal opportunities due to different disadvantages may require preferential treatment or an affi rmative action.

b. Effi ciency is defi ned as the lowest cost method which allows reaching the goals to maximize individuals’ and communities’ opportunities through the optimal use of human, material, and institutional resources.

c. Participation implies that persons are involved in all


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a. levels of activities, events, and processes that affect their life, not as benefi ciaries but as agents capable to search and achieve goals they value and with reasons to value them.

b. Sustainability applies to all areas: environmental, social, political, and fi nancial. It implies that current consumption does not jeopardize future generations’ access to resources.

1.3 Human development index

To achieve an evaluation of human development that is comparable and with available data in every country, it is necessary to design indicators that synthetize some of the fundamental dimensions of the process. Within these indicators, the most widely spread are those included in the family of human development indices. The human development index (HDI) appeared in public life in 1990 as a succinct exercise for measuring three key dimensions of development: possibility of a long life, educational achievements, and the availability of material resources. HDI is the average of the three aforementioned dimensions and its value may vary between 0 and 1. The latter expresses the highest progress in human development.

In the last decades, Guatemala has achieved some progress in its HDI (Graphic 1). However, the progress has been different in every component of the index. Regarding life expectancy

at birth, the country has moved forward according to the global demographic tendency. In education, there is a more signifi cant progress after the end of the armed confl ict and the establishment of civil governments. The Gross Domestic Product (GDP) has not had a signifi cant increment in the period analyzed.

Graphic 1 Guatemala and some selected regions HDI

Source: GHDR (2009) y GT-NHDR (2007). See graphic 3.2 NHDR 2009/2010 (UNDP, 2010)

0.42

0.51 0.52

0.69 0.70 0.72

0.82 0.830.90 0.90

0.93 0.95 0.961.00

0.50

0.00

Low

HD

Áfric

a SS

GT l-

e

Med

ium

HD GT Asia

LAC

High

HD

GT H

igh

Ocea

nia EU NA

Very

hig

h HD

Low HD: low human development countries average. GT l-e: low extreme stratum of Guatemala. Medium HD: medium human development countries average. GT: Guatemala. LAC: Latin America and the Caribbean average. High HD: high human development countries average. EU: European Union average. NA: North America average. Very High HD: very high human development countries average.

d.

State and human development, a necessary synergy

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25

A relationship between the State’s purpose and the promotion of wellbeing has been frequently mentioned. However, the multiple theoretical links, which happen on a daily basis in people’s lives, (conceptual) and practical (historical) have not been established yet, among the different manifestations of what human development is and the State’s function. The relationships between both aspects complete a necessary and indispensable vision of what really happens in society. The following pages have some proposals over this vital enunciation.

2.1 Two concepts and their links

The State is the center of power which every community has to organize and reproduce itself with control intentions over a population, who lives in a delimited territory. By doing so, the State establishes an interior space as a sovereignty framework before the exterior. It has an institutional structure, a group of bureaucracies which mobilize it and fi nancial resources to allow its operations. As a power, the State establishes its own legality, a group of norms which sets forth its regulations, mechanisms, and procedures as well as policies consistent with the general will which the State expresses. To achieve all of the above, the modern State has two legitimate monopolies which no one can contest: the control over force resources and the capability to collect taxes.

The central purpose of development is the full realization of the person, understood in a multiple manner. First, as a path where the subject may choose freely what he/she wants to do with his/her life. This election shall be in agreement with the defi nition of dignity he/she has chosen. Then, that freedom to choose depends on the equality of capabilities he/she has enjoyed and thus he/she tests.

Human development is an amplifi cation of freedoms enjoyed by the person because he/she has had opportunities to choose based on those capabilities developed. Thus, a group of rights or situations the person values arises: income, education, and health as well as others related to the right to a clean environment, political participation, information, and freedom of expression, access to justice, practicing sports, artistic creativity, and to enjoy love, music and spare time.

2.2 The State that fulfills its functions and human development

With any of the defi nitions of human development, the State appears with more or less strength for at least two reasons: on one hand, because in performing its functions, the State fulfi lls many of the situations or rights that defi ne human development. On the other hand, because there is a common reference to equality of opportunities or capabilities the subject has, as well as to equal acknowledgement of rights the citizen has. The road of freedom to choose what one values most, based on individual decisions can only be traveled in a society where inequalities do not impede it or do so limitedly .Who constituted those freedoms and how were those inequalities established? The latter are determined by economical-social growth (the market) and the former are established by the State, though not always, but as a balance of power of political forces who lead it. This thinking is the linking axis between political strength of the State and the social demands of human development.

Of the various functions the State fulfi lls, which justify it as a central authority in the national community, one stands out. This is conditio sine qua non of the others; it refers to keeping order through the creation of institutions that watch and guarantee peaceful relationships of all, the use of force for punishing disrespect to law, all, in benefi t of legal reproduction of the system. Guatemala’s history reminds us that keeping the order varies in a democratic State from one which is not. Political control functions, in military governments, are more important than those of social cohesion; strength substitutes politics. Human development, in its dimension of personal choice of what one wants freely, cannot be exercised because freedom environments are diminished.

When the State order is democratic, the control over the population seeks consensus and is performed through the best distribution of public goods, internal peace, and the absence of confl icts and of violence. In an order so considered, security and access to justice are also facilitated. These qualities of every democratic political regime are conditions for promoting human development, which requires subjects (citizens) with the same capabilities and opportunities.

2. A State for human development: a utopia with the feet on the ground

Abbreviate version of Edelberto Torres-Rivas’ special contribution

State and human development, a necessary synergy

2009/2010 National Human Development Report Syntesis26

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Also decisive for human development is the group of cohesion and social integration policies by virtue of which, some of the differences between citizens are attenuated. These differences originate in poverty and inequalities. When inequalities weaken, polarization may diminish. In the fi eld of subjectivity and culture, inequalities create apathy, reticence, ignorance, and sickness. Social integration and cohesion must be understood as functions of the State directly related to the promotion of the individual’s agency and of what, under another optic, is called social rights (including the economic ones).

2.3 The democratic and social State

The democratic State may be understood as a power that consults with citizens, who decide by majority, freely, in partisan competition spaces and ideological pluralism, who will have the power. Equal access to media and to the voting places is guaranteed. Results are respected applying representation norms previously established. Rigorously, democracy cannot function in its version of citizen competition system to elect if there is not a State. Democracy cannot be imagined as the ideal defi nition of a relatively egalitarian order outside the State. Consequently, one has to always talk about a democratic State.

The democratic State is based on the universal exercise of political rights. Two of the most known and exercised rights, though not always respected, have been the right to vote and to be elected. Political rights are granted to all citizens nowadays through a modern defi nition and a wide acknowledgement: the right to universal suffrage. The 2005 National Human Development Report examined in detail the evolution of citizenship in Guatemala. For over a century, women, illiterate and indigenous people were not considered citizens.

Universal suffrage, which currently exists in Guatemala, is important as the fulfi llment of a law formality and the consecration of international values. Nevertheless, that formality is distant from the effective exercise of political rights, which will be further analyzed in chapter IX of this Report. Economical inequalities are political inequalities; they condition the existence of citizens of diverse hierarchies. The political order is ensured with better social integration of the population into the political system, where power and money resources act more or less unevenly.

The idea at this point is that political rights are part of the human development «paradigm», and that its practice is different because suffrage happens in an asymmetrical environment, where the ones who have power always win.

Why, if the liberal principle that a person is a vote is applied? Not only do they always win under democracy situations, but they turn derisory the vote of those who oppose radically. Here is the fi rst limit: human development keeps a wrong relationship with the State: this does not always ensure political rights.

The Well-being State (sometimes called social State) has never existed in Guatemala. It could be said that only some of its features have been valid in a few Latin American societies. The Wellbeing State corresponds to a political organization pertaining to highly developed societies. As a consequence of their high initial religious integration (puritans, evangelicals), these societies had already reached egalitarian forms of social life (e.g., income distribution). Achieving this political system in England, Holland, Belgium, and the Nordic countries, for example, meant a historical alternative to the socialist project between the First and Second World Wars.

The level of wellbeing reached in these societies is the result of a civic unblemished culture of all citizens, a strong electoral participation and two key conditions: the existence of discipline laborers parties and strong negotiation ability between entrepreneurs and laborers. This has allowed them to sign social pacts where ones give up in their confl ictive-protest abilities and others in granting social and economic rights which alter the nature of the workers’ wages. This is the direct result of explicit political pacts, regardless of the productivity and the value-work relationship. Of course, it is not only the labor, mentioned as an example.

But all of this would not be understood, it would not happen, if there was not a democratic, strong State, which presides negotiations and is the result of them. In fact, its vigor is measured in numerous ways, but one has to be highlighted: its fi scal capability, which ranks between 40-50% of tax burden. This allows for the construction of hospitals and paying philharmonic orchestras, prisons, universities, roads, and a thousand other services.

The State guarantees the socio-democratic pact, because by reaching an agreement, classes strengthen it. The common sense which sometimes confuses the place where reality operates with the wishes or aspirations, calls social democrat anything, e.g., the political power exercised by some erratic social policy. The conclusion is very important. The Social Democrat State is really the authentic social-rule of law-State, which meets all the opportunity conditions for human development based on every person’s capability to choose. It is not by chance that in the world ranking of the annual Human Development Report, the aforementioned countries (only as an example) are permanently in the fi rst places in the HDI.

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2.4 A human development State?

It is appropriate to suggest some conclusions articulated with the key question posed by this Report: Is the Guatemalan State a State for human development? There is not one State that qualifi es itself as a human development power, a State whose adjective is human development. By creating conditions for wellbeing, a State can develop capabilities to elect among its citizens. In any case, it is necessary to establish equality possibilities to enjoy wellbeing.

This kind of State is a necessary condition. To be enough, it requires the permanence over time. A democratic State for four years cannot establish controls in relationship to the market, ensure a better distribution of income and apply policies aimed at meeting the minimum demands of public goods. Poverty nor inequalities reproduction, are reduced in the short term. The short term result may be supported on a temporary economic growth of exports, or in the electoral success of a political group. Social policies reduce poverty when they are kept from one generation to another; when it is possible to change the «poverty culture », wealth becomes the capability to choose freely. Is this optimistic scene close to human development?

In the framework of traditional debate, of the utilitarian optic, of inequality as the space between rich and poor, the ideals would be reached with an improvement in the amount of income. What about the other wellbeing indicators, access to

university education, to intellectual creativity, to security and justice? The State for human development cannot have as a reference the debate limited to economic statistics, since the GDP is not the only important aspect.

Let’s analyze a few examples: total GDP in 2008 in Saudi Arabia was almost the double of Holland, but the latter is way above in the hierarchic order of the HDI of the former. This result is not only based on a brutal income inequality or material resources per capita between both countries. It is also based on lack of attention to education, health, political, and cultural rights, a male chauvinist culture, and total legal unprotection. Another example is the fact that the HDI of Iceland is above the United States’ despite having 20 times less wealth production. Undoubtedly, the Iceland citizen has more freedom to choose his future.

The notion of human development does not properly rest (only) on the objectives of less inequality and/or poverty, but on the power to guarantee and expand the capability of all citizens to make their personal choices. Human development requires, fi rst, equal opportunities and then freedom of capabilities. It is the State’s role to guarantee them and the subject’s to claim them. Without a public space for ample participation (in education and the other cultural goods, income, health, and other opportunities) there will never be equality at the starting point of opportunities. The State-for-human development is a reachable ideal, a utopia with the feet on the ground.

3. Public policies and human development The State, when executing its social order operations, establishes institutions, develops normative frameworks (laws, regulations, etc.); ratifi es agreements; adheres to declarations, and formulates and executes programs and projects of every kind. Through the institutionality created and bureaucracy,39 every one of these interventions can be included within the public policies category. These interventions affect the persons’ lives in every aspect where they interact.

The universe of public policies study is coarse and changes from context to context. For this reason, there is not only one valid concept to defi ne the term. Public policies have been considered as «contingent answers [of the State] to the situation status of a country ».40

Also, in an ample sense, public policies have been conceived as any State action that generates impact on the space of the public matter, even when the action implies not to do anything.41

In the framework of this Report, public policies are understood

39 When speaking about State’s institutionality and its bureaucracy, this document refers to the concept of ‘government’.40 BIDB (2006: 16).41 Meny (1999). When such intervention does not exist, it could be interpreted that: a) the State does not know the phenomenon; b) the State does not consider the phe-

nomenon important and c) the State decides not to act ver the phenomenon. Any of these options implies political positions that impact the phenomenon itself and, therefore, the public space.


C 3Country (HDI 2007) Stability Adaptability

Effective implementation and

application

Coordination and coherence

Orientation to public interest Effi ciency Policy index

Brasil (0.813) High High High High Medium Medium High

Chile (0.878) High High High High High High Ver High

Costa Rica (0.854) High Medium High Medium High High High

El Salvador (0.747) High High High Medium Medium High High

Guatemala (0.704) Medium Medium Low Medium Low Medium Low

Honduras (0.732) High Medium Medium Medium Low Medium Medium

Nicaragua (0.699) Medium Medium Medium Low Low Medium Low

Panamá (0.840) Medium Low Medium Low Low Low Low

Table 1 Characteristics of public policies in selected Latin America countries (2005)

Source: IDB (2006:147); HDI values, UNDP 2009d) See table 3.1 NHDR 2009/2010 (UNDP, 2010)

as a group of actions that the State performs through its administrative structure. Such actions aim to fulfi ll social needs according to law; policies are the result of complex exchanges, confl icts and negotiations among political actors which happen in public settings and in delimited temporary moments. The most prominent actors are the State itself, political parties, civil society organizations, and any other group with a collective interest. Policies are, in summary, technical-political actions which the State performs to fulfi ll its operations or offers. It is the State’s duty to formulate, propose, enforce, and supervise that group of processes that form its policies. For that, it must have enough human, technical, and fi nancial resources.

3.1 Notes on public policies

Public policies are complex processes, with multiple dynamics and intentionalities. These may aim to search justice, equity, or an increase in persons’ capabilities. They may focus on keeping the status quo, uneven distribution of power or wealth, or benefi ting only a group of people. Public policies are linked to multiple actors; public policies are affected by power relationships existing among those actors.

In Latin America there has been progress in studying public policies as new instruments of public management. The IDB report The politics of public policies (2006) published a general index of the quality of public policies. This is an average of six indicators that describes the quality characteristics of them: a) stability, b) adaptability, c) coordination and coherence, d) implementation and effective application, e) orientation to public interest, and f ) effi ciency. In the Central American environment, in the index of public policies, Guatemala, Nicaragua, and Panama were classifi ed in the low

category; Honduras, in the middle one; and Costa Rica, in the high category. In the same publication, this index and its components are statistically related to some economic growth and development indicators (HDI included). The conclusion is that the policy index has positive correlations with growth indicators (GDP per capita growth) and development (HDI change, poverty reduction, and others).42

3.2 Participation of actors with agency: key to institutional change

The human development approach trusts that, to the extent that people have better capabilities—including agency as a fundamental capability—, there would be a better relationship between institutionality and actors around the policy. From this approach, what is argued is that a better agency in persons could allow institutional democratic change processes which generate legitimate public policies, discussed and audited by civil society.43 The human development approach also provides elements to study democracy and making democratic decisions, since these elements are intrinsic to the paradigm.

To legitimize democracy, it is necessary that public deliberation, participation, and infl uence on making decisions capabilities are not in the hands of a few actors, but that they also include those whom the system has kept in «political poverty».44

At this point, another aspect of democracy in the political system is key: the role of political parties as part of the systems and of social and civil organizations as advocacy promoters, if not of pressure over the former. These actors, plus media, are fundamental to change, since they participate in the formulation, discussion, debate, implementation, and

42 For the HDI change, more important correlations were on the Adaptability (partial: 0.782**), Implementation and effective application (partial: 0.711**) and Effi ciency

(partial: 0.592**) indicators. In general, the policy index has a partial correlation of 0.614**. (All the numbers quoted, signifi cant to 1%). In the case of partial correlations, the idea is to verify if the countries whose policy index is higher than expected, given their initial per cápita GDP, tend to have development indicators also higher than expected, given their initial income. IDB (2006: 150-151)..

43 Deneulin, S. and Shahani, L. (eds.) (2009). 44 According to the quoted text, «political poverty » is a term formulated by James Bohman (1996, 1997), who defi nes it as «the inability of citizen groups to effectively partici-

pate in democratic processes ». Deneulin, S. and Shahani, L. (eds.) (2009: 175-176).

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monitoring processes of public policies. Therefore, the term agency does not refer only to the individual action of public reason (where the person makes the better decision according to his/her own interests), but to collective public reason —relational— where participation is based on searching benefi ts for the collectivity. Democracy in the human development paradigm is not only in people’s possibility to increase their agency, but on the way these institutions represent and succeed in enforcing public policies that represent greater equity and justice for all.

Formulation and execution of public policies is not apolitical. The State’s functions are eminently political and must respond to a model of State proposed and legitimized within a democratic system. If there is not a clear model of State that leads and defi nes public policies, a space opens for other forces, which may be exclusive, to do so.

3.3 Capability spaces and instruments of the State

The human development approach poses a series of capability spaces which may be studied from the State’s action. The capability spaces include cultural freedom, work, education, health, security, justice, and political participation. The key instruments the State has to promote them include the economic development model, the judicial framework, civil service, fi scal policy, social policies and policies to reduce inequalities. In the 2005 NHDR cultural freedom was addressed within an approach of ethnical-cultural diversity and citizenship in a plural State. The 2007-08 NHDR analyzed widely the economic development model of Guatemala and its effects on work and human development of the population. This Report focuses on the other capability spaces mentioned above.

Conclusions

Democracy entails, inherently, citizens’ participation in deciding over that which interests and/or affects them. For this to happen fully, satisfactorily, and functionally, citizens have to have certain capabilities and the possibility to have the required agency (in terms of opportunities) to have the type of individual and social life they want to have (in terms of freedoms). This depends on the State. On that account, it is the State, and the democratic State, where human development can become a reality. Likewise, human development makes the survival and permanent improvement of the same State possible.


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Chapter 4The State: its structure, bureaucracy, and public expenditure

This chapter introduces the analysis of the Guatemalan State through three constitutive dimensions. The fi rst one refers to its institutional framework, the organisms that perform operations established by law. The second discusses the bureaucratic structure, what is called public employment, the total number of workers in charge of formulating and applying public policies, and administrative management set forth by law, regulations, and the institutional hierarchy. The third one refers to fi nancial resources of the State, by virtue of its fi scal capacities and according to the norm of the General Expenditure Budget. This topic is further discussed in Chapter V. This chapter includes a section about expenditures and employment that allows analyzing the strong State – weak State dichotomy, with data from Guatemala and Costa Rica.

The description of the changes that took place in the Executive, Legislative and Judicial Branches and in their respective bureaucracies is divided into two periods. The fi rst, the one from the democratic beginning, goes from 1985 to 1996, when the Agreement on a Firm and Lasting Peace was signed. The second, after such signature, includes the 12 next years. The complete Report includes diagrams of the three branches for the beginning, middle, and end of the period studied. These diagrams are not included in this synthesis.

1. 1. The State and the democratic beginning (1985-1996)

1.1 Some changes

There was a regime change in Guatemala in 1985-1986, from the previous dominant coalition (military governments) to the new coalition (civilian governments). The new constitutional text became valid on January 14, 1986, when the governing authorities took offi ce. Prior to this, there were public institutions which acted with a liberal tradition and did not

work well (e.g., habeas corpus and writ of relief ). Their dynamics change under the new democratic conditions when the State takes its own operations back, but with a relatively different logic, even in the counterinsurgency dominant framework. For the State’s political control and the citizen’s defense, for example, the Human Rights Ombudsman’s Offi ce (PDH, Spanish acronym), the Supreme Electoral Tribune (TSE, Spanish acronym), the Constitutional Court (CC, Spanish acronym) and the Comptroller’s Offi ce (CGCN, Spanish acronym); also, the Writ of relief law, habeas corpus, and constitutionality law (with their amendments). The operations of the Legislative Branch became important because they began to refl ect the game of political parties and citizen participation. Despite the delays dragged from the previous period and other limitations imposed by powers outside the State, the Judicial Branch’s function of administering justice gained relative independence and respect.

Particularly relevant was the Electoral and Political Parties Law which was enforced during the 1985 elections. This law introduced the substantive change of total independence, as well as the composition of majority and proportional representation in Congress. This legal instrument redefi ned partisan organization and operations, now overseen by the TSE.

1.2 The Executive Branch

Structure

The Executive Branch, especially in presidential regimes with dictatorial tradition, as is the case of Guatemala, tends to be a hypertrophied structure. In fact, the department of Guatemala encompasses the majority of the public bureaucracy, it has the biggest amount of fi nancial resources and performs the greatest number of State functions. Executive functions are multiple; they are summarized as the group of public tasks needed to administer society. The executor is the President of the Republic, who, in this State confi guration, is vested

PART II: DIMENSIONS AND PRESENCE OF THE STATE

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31The State: its structure, bureaucracy, and public expenditure

Figure 1 Diagram of the Executive Branch (1986)46

Source: prepared by UNDP based on D.o 93-86. See fi gure 4.1 NHDR 2009/2010 (UNDP, 2010)

STATE’S POLITICAL CONTROL

HUMAN RIGHTS OMBUDSMAN OFFICE

SUPREME ELECTORAL TRIBUNAL

PRESIDENT OF THE REPUBLIC

VICE-PRESIDENT OF THE REPUBLIC

ECONOMIC PLANNING NATIONAL COUNCIL GENERAL SECRETARIAL

CONSULTATIVE BODY

CIVIL SERVICE NATIONAL OFFICE

PUBLIC ADMINISTRATION NATIONAL INSTITUTE

TECHNICAL SUPPORT FUNCTION (4)

PRESIDENTIAL GUARD

GENERAL TOPICSSECRETARIAT

PRIVATE TOPICSSECRETARIAT

PUBLIC RELATIONSSECRETARIAT

SOCIAL WELFARESECRETARIAT

POLITICAL TOPICSSECRETARIAT

CIVIL SERVICE NATIONAL BOARD

NATIONAL RECONSTRUCTION

COMMITTEE

REAL ESTATE PROPERTY NATIONAL

REGISTRY

STATE’S JUDICIAL-ADMINIS-TRATIVE CONTROL

CONSTITUTIONAL COURTSTRATEGIC-POLITICAL

FUNCTION (2)COMPTROLLER GENERAL OFFICE

GENERAL SOLICITORS OFFICE

PUBLIC MINISTRY

ADMINISTRATIVE SUPPORT FUNCTION

(9)

MINISTRY OF

FOREIGN AFFAIRS

MINISTRY OF LABOUR AND SOCIAL PREVISION

MINISTRY OF THE INTERIOR

MINISTRY OF NATIONAL DEFENSE

MINISTRY OFPUBLIC FINANCE

MINISTRY OFEDUCATION

MINISTRY OF PUBLIC HEALTH AND SOCIAL

ASSISTANCE

MINISTRY OFECONOMY

MINISTRY OF AGRICULTURE,LIVESTOCK AND FOOD

MINISTRY OF COMMUNICATIONS, TRANSPORT AND PUBLIC WORKS

MINISTRY OFCULTURE AND SPORT

MINISTRY OF URBAN AND RURAL

DEVELOPMENT

TECHNICAL-OPERATIONAL

FUNCTION (12)

45 Estrada, E. (2010).46 Diagrams that graphically represent what is called units have been included throughout this chapter. A unit is a grouping of functions/bureaucracies that perform politi-

cal and judicial control or strategic-political, technical support, administrative support functions or others. Units and diagrams should be used with caution and only as reference or illustrations to allow a temporary comparison exercise.

with a considerable concentration of power. He is supported by the Ministries of State, as well as by a growing number of decentralized and autonomous institutions linked to the Presidency or through delegation of public functions to the private sector.

The Reconciliation National Commission (CNR, Spanish acronym) was created in 1987 and the fi rst steps to end the armed confl ict were taken. By mid-1994, the fi rst Peace Accords were signed and CNR was dissolved; it was substituted by the Peace Commission (Copaz, Spanish acronym). Military conscription was substituted by the new Military Service Law which established voluntary service. Demobilization of military commissioners and their assistants, as well as of 270,906 members of Surveillance Committees, was agreed upon in 1995.

In the 1986-1996 period, the Executive Branch was made up of 27 «organizational units».45 These have been basic groupings who gather a bureaucratic group that performs activities or fulfi ll the same specifi c function. By virtue of this, an organizational structure is made up of units that follow the specialization principle and are responsible for labor division and coordination. There were two units at the political strategic level, nine units with administrative support functions, and twelve units in the technical operative level,

which includes the Ministries of State internally structured in a functional hierarchic manner (see fi gure 1).

Interministerial coordination is complex. Ministries and their superior institutions are closely integrated with the Presidency of the Republic or with the Vice-presidency. As established by the Constitution, the Vice-Presidency currently develops its own functions. General coordination of the State and its executive function is performed jointly and permanently with the Cabinet. In fact, the Executive Branch is integrated by Ministries, the Presidency, and the Vice-presidency. Various Secretariats with specifi c functions are attached to the Presidency. Some of them have been created successively.

Bureaucracy

In relationship to the State bureaucracy, it is necessary to make some references prior to 1985-1986 since there is not information for that period. Thus, it is important to mention the Civil Service Law, which established norms that describe the nature of the operations, duties, responsibilities, specialities and requirements necessary for public employment. The United States Federal System and the Civil Service System of Costa Rica were models for Guatemala’s civil service law. The 1991 Classifi cation Plan of Executive Branch Positions was modifi ed and subsequently amended in 1998.


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Figure 2 Diagram of the Legislative Branch (1986)

Source: prepared by UNDP based on Decree 93-86. See fi gure 4.2 in NHDR 2009/2010 (UNDP, 2010)

TECHNICAL- SUPPORT FUNCTION (12)

ADVISORY AND CONSULTANCY

INTERNAL AUDIT

CONGRESS OF THE REPUBLIC

PUBLIC RELATIONS

EXTRAORDINARY SPECIFIC COMMISSIONS

23 LEGISLATIVE WORK ORDINARY COMMISSIONS

HUMAN RIGHTS COMMISSION

STRATEGIC-POLITICAL

FUNCTION (4)

ADMINISTRATIVE SUPPORT

FUNCTION (4)

TECHNICAL-OPERATIONAL

FUNCTION (26)

CONGRESS LEGISLATIVE SECRETARIAT

BOARD OF DIRECTORS

PRESIDENT OF THE CONGRESS

PRIVATE SECRETARIAT OF THE CONGRESS PRESIDENCY

CENTRAL ADMINISTRATIVESECRETARIAT

TREASURY

PERMANENT COMMISSIONS

There is not information about bureaucracy in 1985-1986, but the 1977 I National Census of Offi cers and Public employees (Cenafep, Spanish acronym) has some. The II Cenafep took place in 1992.

1.3 The Legislative Branch

In the years after 1986, some operations and legislative institutions which were «on hold» came to life and gave new perspective to the power of Congress. Congress performs fundamental operations, especially in a presidential regime: it controls and moderates Executive’s performance as administrator of the nation, which is its basic function. Congress appoints Judicial Branch magistrates and basically exercises the legislative power, i.e., the capacity to issue decrees, amend, and abolish legal norms that ensure, orient, and promote life in society. The public institution of the nation with the most representation is Congress, because its members are elected directly through universal suffrage. To ensure their independent work, Congresspeople have the constitutional privilege of immunity. The Legislative Branch structure in 1986 is shown in Figure 2.

1.4 The Judicial Branch

Before 1986, the Judicial Branch had a limited bureaucracy and fi nancial resources, but above all it was subordinated to contingent politics. In fact, in military settings, judicial functions, especially in the criminal area, tend to devaluate and to lose the classical sense of justice. In a democratic setting, these fl aws become more visible and there is a tendency to correct them. That has not been an easy task in Guatemala, even though public opinion knows that an effi cient justice system is critical for democracy.

The 1985 Constitution reiterates the basic powers of the judicial function: to judge and promote the execution of what has been judged, recommending that justice be equal to all and that it be quick, effi cient, and of low cost. So understood, justice is a value that requires solid institutions, that is, a group of objective norms that establish which members of society must judge and how and who must be judged. In a democratic Government, and that is Guatemala’s goal, formal guarantees are granted for the Judicial Branch’s autonomous operation and for searching probity in justice administration and independent decisions.

In 1989, the Judicial Branch structure included 41 groups of main units (Figure 3): the Supreme Justice Court and the Presidency of the Judicial Branch with strategic-political functions; 11 technical support units, 10 administrative support units, 8 middle management units(Criminal Courts, Civil Courts, Family Courts, and others); and 10 for technical-operational functions (Courts). Besides the separation of substantive jurisdictional and judicial operations, the administrative area includes a General Management plus its units. The technical support area includes, among others, the Institutional Training Unit.

Institution 011 022 041 Total

Núm. % Núm. % Núm. % Núm. %

Ministries of State 82,097 85 632 1 13,463 14 96,192 100

Decentralized entities 16,464 76 1,458 7 3,817 18 21,739 100

Others 5,300 83 206 3 912 14 6,418 100

Total 103,861 84 2,296 2 18,192 15 124,349 100

Source: II Cenafep (1994). See table 4.3 NHDR 2009/2010 (UNDP, 2010)

Table 2 Employment in the Executive Branch and decentralized agencies by budget line item (1992) (Number and percentage)

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Figure 3 Diagram of the Judicial Branch (1989)

Source: prepared by UNDP based on articles 203 to 222 of the Political Constitution of the Republic and decree 2-89 of the Congress to the Republic, Judicial Branch Law. See fi gure 4.3 in the 2009/2010 NHDR (UNDP, 2010).

SUPREME COURT

CERTIORARI AND PRETRIAL COURT

CRIMINAL CHAMBER

CIVIL CHAMBER STRATEGIC-POLICY

FUNCTION (2)

CRIMINALCOURT

CIVILCOURTS

DEPARTMENTALJOINT COURTS

FAMILY COURTS LABOR AND SOCIAL WELFARE COURTS

CHILDHOODAND ADOLESCENCE

COURT

JURISDICTION CONFLICTS COURT ADMINISTRATIVECOURTS

DISTRICT COURTS IN CHARGE OF FINANCIAL CONFLICTS BETWEEN

CITIZENS AND THE STATE

COURTS IN CHARGE OF FINANCIAL CONFLICTS

AMONG CITIZENS

DISTRICT JUVENILE COURTS

LABOR AND SOCIALWELFARE COURTS

FAMILY COURTS

RULING COURTS AND JOINT DISTRICT COURTS

DISTRICT CIVIL COURT

CRIMINAL RULING, NARCO-ACTIVITY, AND

ENVIRONMENT CRIMES COURTS

CRIMINAL ENFORCEMENT COURTS

DISTRICT, NARCO-ACTIVITY, AND

ENVIRONMENT CRIMES COURTS AND FISCAL

CRIMES COURTS

MIDDLE MANAGEMENT FUNCTION (8)

TECHNICAL OPERATIONAL

FUNCTION (10)

JUDICIAL BRANCH PRESIDENCY

COURTS GENERAL SUPERVISION

PRESIDENCY GENERAL SECRETARIAT

PLANNING AND INSTITUTIONALDEVELOPMENT SECRETARIAT

SUPREME COURT SECRETARIAT

GENERAL MANAGEMENT MANAGEMENT COORDINATION

INTITUTIONAL INFORMATIONSECRETARIAT

HUMAN RESOURCESMANAGEMENT

FINANCIAL MANAGEMENT

ADMINISTRATIVEMANAGEMENT

SOCIAL COMMUNICATIONS

MANAGEMENTTECHNICAL SUPPORT FUNCTION

(10)

ADMINISTRATIVE SUPPORT

FUNCTION (10)

INTERNAL AUDIT

LEGAL ADVISORY

INSTITUTIONAL TRAINING UNIT

PROTOCOLS GENERAL FILE

JUSTICE ADMINISTRATION AUXILIARY SERVICES CENTER

CRIMINAL MANAGEMENT CENTER

FORENSICS SERVICE

LEGAL PSYCHOLOGY UNIT

LEGAL STATISTICS DIRECTORATE

Of greater relevance were the amendments to the Criminal Code approved in December 1992 and enforced since January 1994. The new Code established oral and public trial; it gave ample participation to the Public Ministry’s (MP, Spanish acronym) prosecutors in investigations under judicial control. It simplifi ed the process, amended the role of judges so that «only» they judge and execute what has been judged and it established judicial control for the execution of sentences. Likewise, greater process guarantees were created, they are no longer inquisitive, but accusatory, which strengthens the victim’s defense and expands the publicity of the trial, thus allowing greater control of the judicial activity.

2. The State after the Peace Signing

At the beginning of the 1990s, the Cold War, which damaged so considerably national politics life, had ended. Likewise, local confl icts were ending in different settings of the planet. Democratic governments were spreading and reconciliation

and peace mechanisms were being activated. Central America was not isolated from these changes under whose framework the Peace Accords in Nicaragua (1990), El Salvador (1992) and Guatemala (1996) were reached. In this country, the Firm and Lasting Peace implied substantive agreements when referring to aspects that had to do with the internal armed confl ict causes, hence signifi cant democratic institutional changes were expected. It was an opportunity for the State to suggest a national unity strategy around a development program with equity, long term, and consensus.

The Peace Accords have promoted some changes in the political life of the country, though in numerous aspects they have not been met. This is not, however, the opportunity to establish a balance about their compliance. In relationship to the intent of this Report, it may be noted that if some Accords were to be applied, the performance of the State’s operation, as the axis for every structural change, would have been strengthened.


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47 However, there is available information that does not coincide, since it states that the number of army offi ces was decreased from 46,900 to 15,500. Guatemala Studies

Center (CEG, Spanish acronym, November 2009). Refer to www.ceg.org.gt/fotos/situacionseguridadjusticianov09.pdf48 According to Article 224 of the Political Constitution of the Republic.49 Set forth by articles 182 to 202 of the Political Constitution of the Republic, as well as Decree 114-97 of the Congress of the Republic, Executive Branch Law, December 12,

1997. 50 Estrada, E. (2010).

2.1 The Executive Branch

Signifi cant changes were introduced to the structure and bureaucracy of the State between 1997 and 2000. Some were motivated by the Peace Accords, others by a neoliberal vision over State modernization. In 1997, the Secretariat of Peace (Sepaz, Spanish acronym) and various joint commissions were created to reach consensus on complying with some immediate aspects of the Accords. For example, the Woman National Fund (FNM, Spanish acronym), the Joint Reform and Participation Commission (CPRP, Spanish acronym), the Commission for Defi ning Sacred Places and the National Council of the Peace Accords (CNAP, Spanish acronym).

Other institutions established in the 1997-2007 period were the Council for the Defense of Indigenous Women (Demi, Spanish acronym); the Women Presidential Secretariat (Seprem, Spanish acronym), advisory and coordinating entity of the National Policy for women’s integral development; the Secretariat of Agrarian Aspects (SAA, Spanish acronym), which defi nes the institutional judicial framework of developing agrarian policies; the Ministry of Environment and Natural Resources (Marn, Spanish acronym), which abolished the National Commission of Environment and the Secretariat of Environment and Natural Resources; the Presidential Commission against Discrimination and Racism against Indigenous people in Guatemala (Codisra, Spanish acronym) and the Secretariat of Food and Nutritional Security (Sesán, Spanish acronym), the coordinating entity of the National System of Food and Nutritional Security (Sinasán, Spanish acronym). On the other hand, the position of the Peace Accords Good Will Ambassador was also created.

The Accord on strengthening the civil power and the role of the Army in a democratic society, is relevant. This notes the need of a new Army institutionaltiy in times of peace. Between 1997 and 1998 the number of military offi cers was reduced to a total of 31,423, based on the organization and equipment tables of the Army (TOE, Spanish acronym).47

In 2000, the Maya Task Force was inactivated. The Military Itinerant Police was demobilized (PMA, Spanish acronym), whose members, around 180, were incorporated into the incipient National Civil Police (PNC, Spanish acronym) and into the Prisons Directorate. The Army commissary was closed and the Geographic Military Institute (IGM, Spanish acronym) became the National Geographic Institute (IGN, Spanish acronym), dependent of the Ministry of Communications,

Infrastructure and Housing (Micivi, Spanish acronym). The television frequency of the Army was transferred to the Presidency of the Republic and it was decided that the graduates of Instituto Adolfo V. Hall became members of the military reserves. Towards 2003, the Presidential Guard (EMP, Spanish acronym) was substituted by the Secretariat of Administrative and Security Matters (SAAS, Spanish acronym). The budget of the Ministry of Defense was decreased by 5.3% during that year.

In 1997, the Law of the Executive Branch was enacted. This law defi nes the role of the Government as «[…] the exercise of the administrative function, formulation and execution of government policies through which entities that form the decentralized administration must be coordinated».48 Criteria for privatization of administrative functions, normative centralization, and operative decentralization are stipulated. It also collects the principles of solidarity, subsidiarity, transparency, probity, effi cacy, effi ciency, and citizen participation.49 Based on the aforementioned legislation, the Executive Branch applied a policy of functional and institutional reduction of the State through the Public Sector Modernization Program.

The establishment of the Superintendency of Tax Administration (SAT, Spanish acronym) was also important during this period. SAT is as decentralized State entity for exclusively exercising tax administration functions. SAT has searched to set in order and modernize tax collection and administration, which has contributed to combatting tax evasion.

In 1997 the Executive Branch had 45 unities: two of political-strategic function, nine of administrative support, 22 of technical support, and 12 Ministries with technical-operational functions. Ten years later, in 2007, its size has increased to 51 units: two of strategic-political leadership (Presidency and Vice-presidency), ten of administrative support, 26 of technical support (Secretariats, National Offi ce of Civil Service (Onsec, Spanish acronym), Presidential Commissions, Coordinators, and authorities) and 13 Ministries of State at the operational technical level.50

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Source: Minfi n. See table 4.6 NHDR 2009/2010 (UNDP, 2010)

Total (011 + 022) 011 022 029

Department 2000 2006 2009 2000 2006 2009 2009Núm. % Núm. % Núm. %

Total 85,460 100.0 99,960 100.0 163,176 100.0 84,954 96,581 154,911 506 3,379 8,265 10,144

Guatemala 39,591 46.3 41,217 41.2 63,148 38.7 39,276 40,711 57,470 315 506 5,678 6,928

Chimaltenango 2,014 2.4 2,594 2.6 4,252 2.6 2,008 2,517 4,142 6 77 110 45

Escuintla 2,969 3.5 3,397 3.4 5,466 3.3 2,964 3,333 5,358 5 64 108 125

Quetzaltenango 4,674 5.5 5,050 5.1 7,383 4.5 4,656 4,950 7,251 18 100 132 115

San Marcos 3,300 3.9 4,710 4.7 8,565 5.2 3,295 4,591 8,334 5 119 231 95

Huehuetenango 3,343 3.9 4,382 4.4 8,655 5.3 3,328 4,253 8,462 15 129 193 84

Quiché 2,727 3.2 3,746 3.7 7,783 4.8 2,724 3,658 7,636 3 88 147 135

Alta Verapaz 2,708 3.2 3,449 3.5 8,151 5.0 2,704 3,368 7,982 4 81 169 203

Petén 2,302 2.7 2,942 2.9 5,230 3.2 2,274 2,825 5,041 28 117 189 237

Izabal 2,039 2.4 2,525 2.5 3,989 2.4 2,036 2,418 3,830 3 107 159 65

Chiquimula 2,204 2.6 2,555 2.6 3,957 2.4 2,202 2,452 3,801 2 103 156 34

Jutiapa 2,326 2.7 2,759 2.8 4,469 2.7 2,316 2,656 4,333 10 103 136 43

Otros 15,263 17.9 20,634 20.6 32,128 19.7 15,171 18,849 31,271 92 1,785 857 2,035

Table 3 Employment in the Executive Branch by department (2000, 2006, 2009) (number and percentage)

2000 2006 2009

Between 2000 and 2009, employment by the Executive Branch under budget line items 011 and 022 has been concentrated in the department of Guatemala. In 2000 it represented almost half of the positions in said Branch. In 2006 it decreased to 41.2% and, in 2009 to 38.7% (Table 3). The relative weight lost during that period in the department of Guatemala was gained by San Marcos, Huehuetenango, Quiché, Alta Verapaz, and Petén.

2.2 The Legislative Branch

This power is increasingly becoming more decisive for democratic construction, especially because diverse political forces of the nation are represented in its interior and because civil society organizations become pressure groups as a result of their particular interests. That is where alliances and confl icts of said interests weave the most general plot of the political life of the country. The Legislative Branch

has been the setting for the increase of party division and Congresspeople’s turncoat. This translates into diffi culties for establishing majority. Without majority, certain law projects in which the Executive and/or the country in general are interested cannot be approved. Reelection and turncoat may turn more than one Congress seat into a politicized place and Congress into a place for patronage negotiation. Between 1985 and 2007, four reelection modalities operated. Out of these, two implied changing parties. 27 congresspeople were reelected; one as a member of another party in the same list; six, twice; fi ve, three times; fi ve, four times; and one, fi ve times. 22 congresspeople were reelected as members of another party and another list, one to fi ve times.

There were some changes to the internal structure of the Legislative Branch, such as the separation between branches with legislative functions and others with administrative functions. 11 support units were added by 1997 to the existing


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legislative units of 1986. The structure has 41 groups of units: fi ve at the strategic level (Congress Plenary, the Board of Directors, the Presidency of Congress, the Vice-presidencies, and the Legislative Secretariats of the Board of Directors); three technical support units; 26 Legislative Commissions (a Permanent Commission, a Human Rights Commission, 23 Ordinary Commissions, and a group of Extraordinary and Specifi c Commissions); and seven of administrative support. The latter are: the Private Secretariat; Regional Branches Coordination; Executive Directorate; Internal Audit; Legislative Directorate; Administrative Directorate; Financial Directorate, and Personnel Directorate.

In 2007 Congress had basically the same structure as in 1997. However, the number of Ordinary Commissions had increased from 23 to 33. New commissions had been incorporated. They handle topics related to culture, consumers’ defense, sports, regional integration, migrants, small and medium enterprises, food security, labor, minors, and family.

Table 5 shows that between 1986 and 2008, the proportion of congresswomen has only increased from 7 to 12%. This shows a weak effort to reach the required gender representation. In Latin America, this reaches an average of 34.0%.

2.3 The Judicial Branch

In 1997, the structure of the Judicial Branch remained equal to the one generated in 1989 with the Judicial Branch Law,

Decree 2-89. Hence, this section highlights some elements of the justice administration reform, its fi nancing, and employment.

Derived from the Peace Accords and modernization, new requirements of justice administration reform raised. For that, the Modernization of the Judicial Branch Unit was created and a plan was prepared aimed to improve the courts function, strengthening access to justice, fi ghting corruption, and improving social communication.

The Justice Strengthening Commission (CFJ, Spanish acronym) was created in 1997 to diagnose the status of the justice system and issue practical short-term recommendations. CFJ ended its functions in 1998 with the publication of the book A new justice for Peace. In 1998, the Supreme Court appointed an ad hoc commission to support and follow up on the CFJ recommendations. Such commission was substituted in 2000 by a permanent commission.51

The fi rst developments in executing the plan were possible because of internal and external resources. The former were the result of a budget increase. A loan with the World Bank (WB) was signed in 1999. This became the biggest fi nancial support to the reforms to be implemented as of April of that year. This fi nancing, along with resources from the Interamerican Development Bank (IDB), allowed infrastructure progress.

Among the actions relative to the JB, the justice sector, and norms for the justice sector are: Peace Courts were expanded to every municipality in the country, and every department capital had at least four courts: one Criminal Court, one Sentence Court, one Civil Court and another one specialized in issues related to labor and family.52 There was a managerial and organizational redesign which implied delimiting administrative and jurisdictional functions; integrating services to support courts; establishing Mediation and Conciliation Centers and a Computerized Management Unit of the criminal cases in Guatemala City. In 1997 the Criminal Public Service Law was approved and the Criminal Public Defense Institute (IDPP, Spanish acronym) was created. It works since 1998 and it is an autonomous institution in charge of defending and guaranteeing due process for poor people.

The Coordinating Instance of Justice Sector Modernization (ICMSJ, Spanish acronym) was established in 1997. This was recognized a year later as a collegiate body which integrally coordinates policies, plans, programs and joint projects of the

Source: prepared by UNDP based on information from TSE, various years. See table 4.11 NHDR 2009/2010 (UNDP, 2010).

Table 5 Total of Congress slots and congresswomen (1986-2008) (number and percentage)

1986

-199

1

1991

-199

4

1994

-199

6

1996

-200

0

2000

-200

4

2004

-200

8

2008

-201

2

Total 100 116 80 113 113 158 158Women 7 6 6 11 8 14 19

Percentage 7 5 8 10 7 9 12

Source: prepared by UNDP with information available at http://www.congreso.gob.gt/gt/mostrar_ley.See table 4.10 NHDR 2009/2010 (UNDP, 2010).

Year 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Congresspeople 80 80 80 113 113 113 113 158 158 158 158

Decrees 99 99 23 99 80 89 56 40 99 45 79

Table 4 Number of congressmen and legislative decrees approved (1997-2007)

51 Pásara, L. (2002). 52 Ibid., 117.

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justice sector.53 ICMSJ promoted in 1999 the establishment of Justice Administration Centers (CAJ, Spanish acronym) in the interior of the country. These aim to facilitate greater access by rural populations to the justice system and to promote organized forms of communication among institutions offi cers.

In 1999 the Judicial Career Law, which aims to improve human resources administration policies, was passed. Between the late 1990s and the fi rst decade of the XXI century the 24-hour Minor-Offenses Courts and the Itinerant Peace Courts ( jurisdictional area) were established, as well as the Women and Gender Analysis Unit (administrative area). Regarding employment, graphic 2 shows the increase percentage of various positions in the JB between 2002 and 2007. There was an increase in all the areas; the most important one was in the administrative area, with an 80%, followed by the magistrates and judges group which increased by 20%.54

Table 6 shows that in 2002, the highest woman/man ratio was among justice assistants and the lowest among magistrates and judges. 68 out of 100 assistants were women and 38 out of 100 magistrates and judges were women. In 2009, the relationship 56 to 100 among magistrates and judges shows a favorable change for women.55

3. Strong/big State – Weak/small State

In Latin America there has been a superfi cial debate which faced the market with the State, forgetting they are both complementary forms of social institutions, mutually necessary, and not exclusive. That generates a confusion regarding size and effi cacy of the State, thus concluding that

a big State is a strong State one, and that the small State is a weak one. The objective is to reach an effi cient and effective State structure which is what adequately has to be called a strong State. A State is strong as long as it satisfactorily fulfi lls its basic purposes: security, order, social cohesion, and justice.

53 Executive Decree 89-98. 54 More information in Chapter VIII.55 Comparative data for 1985, 1995 y 2009 in Chapter VIII.

Box 3Public expenditures in the three Branches of the State (1985-2006)

Graphic 3 shows eloquently that, during the 1985-2006 period, public expenditures of the Executive (bars) is the highest compared to the resource fl uctuation (dotted line) which the Legislative keeps almost without changes. The growing importance given to judicial functions (continuous line) is also evident, especially as of 1995-1996. These resources are probably part of the judicial branch modernization projects implemented in those days. This graphic clearly shows the priorities in allocating expenses.

Source: prepared by UNDP based on Minfi n information. See graphic 4.7 in NHDR 2009/2010 (UNDP, 2010)

Graphic 3 Public expenditures of the three Branches of the State (1985-2006) (percentage)

120.0%110.0%100.0%

90.0%80.0%70.0%60.0%50.0%40.0%30.0%20.0%10.0%

0.0%

5.0%

4.5%

4.0%

3.5%

3.0%

2.5%

2.0%

1.5%

1.0%

0.5%

0.0%

98.9%

0.2%

0.4%

0.5%

99.2% 97.2%

2.0%

0.8% 0.8%

95.9%

3.4%

1.1%

94.4%

4.5%4.4%

94.7%

1.0%

1985 1986 1995 1996 2005 2006

Executive Branch

Legislative Branch Judicial Branch

0.3%

Graphic 2 Absolute and relative changes in Judicial Branch employees (2002-2007) (number and percentage)

80%

7000

6000

5000

4000

3000

2000

1000

0

90%80%70%60%50%40%30%20%10%

0%

20022007Variation %

Magistrates and judges

Justice auxiliaries

Administrative staff Total

71986120%

3,4073,4963%

1,2582,264

5,3846,62123%

Axis

Title

Source: prepared by UNDP based on information from Investigation and Social Studies Association (Asies, Spanish acronym 2003 and 2009). See graphic 4.6 in the NHDR 2009/2010 (UNDP, 2010).

Man Woman Total Ratio W/M

Magistrates and judges 522 197 719 0.38

Justice Auxiliaries 2,025 1,382 3,407 0.68

Administration 824 424 1,258 0.51

Table 6 Judicial Branch employees by sex and work area (2002) (number and ratio woman/man)

Source: Asíes (2003). See table 4.17 in the NHDR 2009/2010 (UNDP, 2010)


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Graphic 4 Costa Rica and Guatemala tax burden (1990 and 2008) (GDP percentages)

Source: Cepal database over offi cial statistics. See graphic 4.9 in NHDR 2009/2010 (UNDP, 2010)

1816141210

86420

Costa Rica Guatemala

1990 2008

10.9

15.6

7.7

11.3

ECLA statistical data for 18 years are shown below. This is as a symbolic reference to the time needed to coming of age (1990 and 2008). Guatemala data are compared to Costa Rica, a Central American country which also emerged from coffee; it was an agrarian and oligarchic society fi ghting to stop being one. Costa Rica did its fi rst education reform in 1885, democratized its political system in the fi rst years of the XX century, and abolished the Army in 1948. Under this framework, the following comparisons are made:

a) Income of the central Government, tax and non-tax as percentage of gross domestic product (GDP) for 1990, showed that Costa Rica collected 11.4% and Guatemala 8.1%. Both percentages increased in 2008 to 15.9 and 12.1%, respectively.

b) Tax burden as a percentage of GDP was 10.9% for Costa Rica in 1990 and for Guatemala 7.7%. In 2008, it increased to 15.6 and 11.3%, respectively. These results imply a State power manifested through its (relative) capacity to collect taxes, a tax collection technical capacity to avoid evasion and the willingness to punish it; keeping good relationships with citizens and having, fi nally, an indubitable legitimacy. The higher the percentages of the above mentioned data the more relevant these qualities are.

c) The Expenditures general budget refers to public expenses and as such, if this is high, it suggests a political system relatively developed and a successful capacity in pubic negotiations that allow the State to move with more freedom, especially in applying public policies. This number is based on 2000 constant prices per person. Costa Rica had in 1997 public resources expenditure per capita of US$ 406, amount that increased to US$ 657 in 2008. In Guatemala, public expenditure per person was US$ 148 and US$ 222 respectively, for both years.

d) Public expenditure in social policies entails also a State able to take care of poverty and inequality problems present in society. This prefi gures the existence of a political leadership, parties and programs with social sensibility before society problems. Social expenditure as percentage of GDP for Costa Rica was 16.1% in 1990 and for Guatemala, 3.5%. In 2008 it amounted 17.1 and 6.7%, respectively for both countries.

e) If the previous information is estimated per capita, between 1990 and 2008, expenditures on social policies in Costa Rica went from US$ 504 to US$ 818; in Guatemala from US$ 45 to US$ 107, respectively.

f ) The structure of the tax system says a lot about equity, modernity, and legitimacy of the State from the tax burden—direct and indirect— in the total collected. For Costa Rica, direct tax meant 2.1% in 1990 and 4.2% in 2008; unlike Guatemala, which initiated with 1.8% and went to 3.2% in 2008.

In the case of indirect taxes, Costa Rica went from collecting around 8.0% in 1990 to 11.0% in 2008. Unlike Guatemala, this increased from 5.5 to 8.2%, for the same period.

g ) Public employment (State bureaucracy) is another quantitative dimension that is related to the ability to cover the various functions of the State. Even though by itself it does not indicate effi cacy, the number is articulated with the previous indicators. The data are presented in relationship to the economically active population (EAP) only for the year when it was possible to do the math. The percentage proportion was in 2003, 6.0% for Costa Rica (Executive, Legislative, and Judicial Branches) and 2.8% for Guatemala (Executive Branch).

Upon comparing the aforementioned data in this section, it can be stated that the State in Costa Rica is bigger than Guatemala’s because it has numbers and percentages always bigger in relationship to its effi ciency and effi cacy. The size is then connected to the important progress of the Costa Rican society in the dimensions that defi ne development, progress, or modernity, such as the number/percentage of poor population, infant mortality rate, number of sick people per hospital bed, literacy rate, number of university students per 100,000 inhabitants, electoral participation, public investment on science and technology, number of women in Parliament, low delinquency indices, drug consumption, homicide rate, and external commerce structure. If this is true, it is possible to conclude, always from a comparative point of view, that the State in Costa Rica is stronger and bigger in relationship to Guatemala’s which would be small and weak.

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Conclusions

Guatemalan State, both in its structure —which is the sum of organizations, institutions, and dependencies that integrate it— as in its bureaucracy and the diverse employment modalities manifested, has taken important steps in terms of its growth. However and in general terms, there is the impression that in view of old and recent problems of Guatemalan society, said steps are not enough and continue to place the country with a permanent defi cit in aspects related to democracy, growth with equity, and human development.

Public employment of the Executive Branch in budget line items 011 and 022 went from representing 0.76% in 2000 (85,460) to 1.2% in 2009 (163,176), with respect to the total population. In the case of the Legislative Branch, in the 1997-2007 period, the number of Congress seats went from 80 to 158 and the number of employees from 182 in 1999, to 1575 in 2007. The Judicial Branch is probably the one which diversifi ed the most, grew and modernized functionally after 1994 when the new Criminal Procedure Code was enacted after the Peace Accords were signed. In this framework, the number of employees of the Judicial Branch grew from 5,384 in 2002, to 6,621 in 2007 (0.05% of the total population). In the Public Ministry, which is part of the justice sector, the number of prosecutors went from 680 in 2002 to 1,265 in 2008.


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Chapter 5Fiscal policy of the State and human development

In early 1980s of the XX century, a debt crisis affected Latin America. A strong debt generated by a weak export sector placed the countries in an excessive dependency from external savings. This situation was aggravated by high international interest rates. As an answer, in the 1990s a neoliberal model, as well as a series of structural reforms, was introduced. These reforms endorsed liberation and deregulation processes and strongly reduced the role of the State in the economic and social development scope. In the fi rst fi ve years of the XXI century has emerged what, little by little, is becoming an integrated analysis of Latin America’s economic performance and development. This region, however, remains unable to propitiate solid bases for democracy; resolve slowly inequity problems; and generate economic growth rates which support and sustain democracy and social equity.

More recently, as an answer to the 2007-2009 world economic crisis, the discussion over the neo-Kenesyian model is resumed. Such model supports, to a certain degree, State’s intervention. This is done in a very different globalization context, which introduces nuances. This economic approach is in sync with the human development paradigm which recognizes the protagonist role of the State to infl uence and contribute to this process through its own fi scal instruments. In such debate, the need to evaluate the potential of the fi scal policy, its fi nancing, expenditure, advocacy, and the transparent management of the public good is posed. In relation to these topics, this section summarizes some considerations about fi scal policy with its fi nancing sources and uses in three big areas: a) stimulus to production (public expenditure); b) stabilization of the economic cycle (anti cyclic policy); and c) redistribution of wealth (social expenditure).

1. Historic review of the fiscal policy in Guatemala

A short journey through the history of fi scal policy in the past 30 years, from the debt crisis to an outline of bigger State intervention, constitutes a good framework for understanding the chronic fi nancial weakness of the State. In 1983, as part of an agreement with the International Monetary Fund (IMF), a package of reforms was approved; these introduced the 10% value added tax (IVA, Spanish acronym) and exonerated the agro exporter sector from this tax. With the fi rst civilian government elected democratically in 1986 arises the short term Economic and Social Rearrangement Program. This proposed to strengthen the tax structure, rationalize fi scal incentives, systematize control and collection norms, and make tax payers aware of their tax obligations.

In the search for fi scal strengthening, in the early 1990s of the XX century, a fi scal reform which constitutes the base of the current tax system was approved. The State drew upon an extraordinary tax and the issuance of economic emergency treasury bonds to address education, health, infrastructure, security, and external debt needs. The signature of the Peace Accords in 1996 granted a special relevance to fi scal policy for the State to meet its constitutional obligations. There was a proposal to organize the tax system as fair, equitable, globally progressive, universal, and mandatory, and to stimulate savings and investment. It was agreed to increase the tax burden in at least 50.0% from 1995, equivalent to 13.2% of GDP by 2008. During 1998, the Superintendency of Tax Administration (SAT, Spanish acronym) was created with the purpose of strengthening tax administration and increasing the tax burden. The background of the Fiscal Pact goes back to the same year, when the government convened a dialog process aimed to formulate a fi scal policy in an integral and

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41Fiscal policy of the State and human development

participatory manner. After a long and intense negotiation in 2000, a political agreement was signed between sectors representing society and the three branches of the State.56

Between 2003 and 2006 there were attempts by the State to take back the Fiscal Pact. A Technical Commission of the Fiscal Pact (CTPF, Spanish acronym) was created; it proposed a tax reform which was approved in 2004. The tax to mercantile and agricultural companies (Iema, Spanish acronym) was substituted for an extraordinary and temporary tax to support the Peace Accords (Ietaap, Spanish acronym). This contributed to increasing the collection of the income tax (ISR, Spanish acronym). Additionally, the legal dispositions for strengthening fax administration were submitted; these included the so called «Anti evasion law». In January 2008, the National Council for Complying with the Peace Accords issued a Fiscal Modernization Proposal for Guatemala which resumed the spirit of said accords in terms of fi scal policy.

In conclusion, fi scal history in Guatemala shows a series of State efforts with partial results which have not allowed strengthening widely the tax structure, nor the collecting capacity of the State to benefi t social programs that infl uence human development.

2. The scopes of fiscal policy

The State, as guarantor of economic and social stability of the nation, has the fi scal policy as the group of economic measures to participate in the productive and distributive processes through public expenditures and taxes, thus infl uencing equity and the common wellbeing, which constitute the link to human development. The implications of a fi scal policy on social wellbeing may be signifi cant to the extent that they tend to improve economic growth levels and generate employment, reduce the impact of adverse shocks to the national economic dynamic (anti cyclic policy) and propitiate distributive effects, meeting vital needs such as health, education, and security, among others.

2.1 Fiscal policy and human development

The drive and the potential impact of fi scal policies are topics that generate controversy in Guatemala. There are some who think that the public expenditure and taxes entail an impediment to economic growth because they discourage

both consumption and private investment; hence, that group advocates for keeping them at the minimum level. However, there is evidence, including some cases after the 2007-2009 crisis, that shows that public expenditure may generate a multiplying effect on economic growth through consumption, investment, and support to the private sector. Others argue that fi scal policy may serve as a mechanism to stabilize economic changes, avoiding sharp increases to prices and unemployment. A third perspective indicates that fi scal policy not only can be an engine of growth or become an economic stabilizer, but it is also able to contribute to other development objectives, such as reducing poverty, decreasing social exclusion and generating greater equality of opportunities.57 The combination of these three perspectives (growth, stabilization, and redistribution) is what gives sense to promoting a virtuous relationship between fi scal policy and human development.

The resources of the State for implementing the fi scal policy come from internal and external fi nancing. At the domestic level, the State traditionally fi nances its operations through tax collection and placing negotiable values. However, there are other incomes whose importance changes from country to country, as non-tax income (rates, rights, permits); contributions to social security in terms of quotations, sale of public assets, equity income, and transfers which may originate in public companies, among others. External fi nancing comes from indebtedness through loans, placing public values in international markets, and transfers. All of this fi nancing is channeled through the nation’s Budget for implementing public expenditure.

Public expenditure is allocated to meeting three functions that contribute to human development. The fi rst one is assignment or stimulus to growth, i.e., productive transformation by allocating public resources to economic activity and generating formal employment. The second is the one that allows to alleviate the effects of adverse shocks on the economic cycle, thus reducing population’s vulnerability over fl uctuations of domestic prices and unemployment. This function implies a fi scal, counter cyclic and anticipatory conduct. The third one is redistribution, which considers the way national income is distributed. Fiscal policy, in function of human development, is not casual but intentional because it depends on the interests that govern the State and its sensibility over the objectives of such development.

56 National Council for the Accomplishment of the Peace Accords (2008: 5). 57 Organization for Economic Cooperation and Development (OECD, 2008: 2).


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58 To expand the topic, Cf UNDP (2008b)59 UNDP (2008).60 Fuentes Quintana, E. (1990).

3. The resources of the State’s fiscal policy

3.1 Tax collection, its structure, and tax burden

Financial viability of expenditure executing is based on the availability of public resources, particularly those from tax collection, which in Guatemala represent around 90.0% of the total collection; therefore, its contribution is relevant, unlike nontax which are not so signifi cant. Guatemala does not have alternate sources of sustainable income; therefore it has to strengthen tax collection. Nevertheless, historically it has shown low levels, less than 12.0% of GDP in general. These results have not reached the tax burden goal established in the Peace Accords (13.2% by 2008).

According to the 2001 NHDR, among the factors that explain low tax collection stand: a) the existence of a rooted anti-fi scal culture, which translates into high evasion and elusion levels; b) the weakness of legal instruments to ensure meeting tax obligations; c) the existence of privileges, exonerations, and exemptions. That undermine the tax base; d) ineffectiveness of the justice system in relation to taxes; e) the existence of constitutional “locks” which limit the taxing power of the State; f ) high inequality in income and wealth distribution; and g) the existence of an important activity of informal or underground economy.58 Besides, a lack of social agreement that links the increase in the fi scal burden to an increase in transparency, decrease in corruption, and reduction of irrelevant public expenditure is faced.

A study by the Central American Institute of Fiscal Studies (Icefi , Spanish acronym, 2009) shows that within the weakness of the ISR, low collection of personal income tax stands out, which represented 0.4% of GDP for 2009. This is related to the exemption system and the high percentage of informality in the labor market. According to the 2007/2008 National Human Development Report,59 informal economy in Guatemala represented approximately 75.0% of employed population in 2000, and 71.3% for 2006. This infl uences the exiguous direct tax collection, since the informal sector does pay the value added tax (IVA, Spanish acronym) in their purchases.

Within the tax income, direct and indirect taxes which stand out are ISR, IVA, customs duties (DA, Spanish acronym), and selected taxes to consumption (petroleum). This structure taxes the fi nal consumption and limits a better redistribution of wealth.

3.2 Taxes and social equity

Equity of a tax structure is always relative. It approximates when it is applied evenly (if fi scal privileges are minimal and the tax base is universal) and it punishes fraud and evasion. The State must operate with policies that value with social justice the distribution of revenues and wealth.60 From an equity principle, a tax system progressive strategy can be defi ned. Why has that not been possible in Guatemala?

The greatest tax collection through IVA, applied proportionally to the different population strata with different levels of income and consumption, propitiates a regressive or proportional tax structure that does not contribute redistributive effects with equity. Additionally, it imprints a highly volatile character before the ups and downs of the market dynamic that infl uence collecting this tax, applied to sales prices of goods and services.

Some studies that have deepened on the measurement of the impact on equity of direct and indirect taxes on total collection provide empiric evidence that, in general, the Guatemalan tax system tends to be proportional or lightly regressive. IVA and some selective taxes to consumption highlight as regressive. Individual ISR is progressive; unlike indirect taxes which stand out because they are regressive, strengthening the need to improve direct collection, particularly from natural persons.

3.3 Tax incompliance

In identifying and analyzing the sources of public fi nancing, the inescapable topic of tax incompliance appears, which refl ects two aspects of the political reality of Guatemala. On one hand, disobedience by many citizens to demand rights and to not comply with obligations inherent to the Political Constitution of the Republic; on the other hand, a weak State that is not able to be respected in the framework of its legality. The total potential of tax payers does not correspond to the real total of payers. Cepal and Icefi estimate ISR evasion for various countries. For 2006, Guatemala had an evasion rate (theorical or expected collection versus potential total of tax payers) of 63.7%, and in relation to GDP of 5.6%. Weaknesses in tax collection in Guatemala seem to concentrate on IVA and ISR. These taxes contribute almost the total of tax revenues. In both cases, the tax incompliance levels are high, and, additionally they allow exemptions and stimuli to tax payers, which diminish redistributive capacity to the State. However, the least performance lies on ISR, whose redistribution potential is greater than IVA.

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61 The Monetary Board authorized the Bank of Guatemala (Banguat, Spanish acronym) to use the international reserves of the country to acquire liquidity, as a tempo-

rary measure through January 31, 2009.62 Asíes (2007: 17). 63 Paunovic, I. (2004: 12).64 Cabrera, Ó. (2010).65 Aggregated demand = GDP = private consumption and investment + public consumption and investment + commercial balance (exports less imports). United

Nations, et ál. (1993).

3.4 Public indebtedness and fiscal sustainability

It is a general practice that the State obtains resources beyond the limits established by its tax horizon. Consumption and investment expenses are growing and must be covered with internal or external loans. In the last 20 years, Guatemala has taken a prudent management of its indebtedness levels. Total public debt of the country is around 20.0% of GDP, lower than Latin America and the rest of Central America.

The origin of the debt changed as of mid-1990 of the XX century, since there was greater external fi nancing than internal, when the country ventured in the international market in 1997. However, the tendency to acquire more debt abroad was modifi ed during 2008, when international markets limited emerging economies the access to fi nancing (as a precaution measure because of accrued debt) and the country turned to liquidity injections through expansive measures of monetary policy.61 Then, the country turned to internal indebtedness through treasury bonds and to a “… policy of repositioning maturing bonds”.62

This situation reverted in 2009, when the IMF approved a credit program for US$ 935 million to help Guatemala overcome the crisis. Likewise, the same year the World Bank approved a loan for development policies (DPL) for US$ 350 million for the Government of Guatemala, with the purpose of continuing supporting its efforts to improve fi scal and institutional policies of the country and mitigate the global crisis impact. According to Cepal,63 Guatemala must keep a limited indebtedness while the tax burden and economic growth do not improve to increase future debt and pay a new debt service (interests) with solvency.

The relative moderate use of loans and bonds placement refl ects, at the same time, the State’s limitations because of the low tax burden and insuffi cient economic growth rates that do not allow meeting greater obligations in the medium and long term. In other words, the low indebtedness of the Guatemalan State, in relationship to the Central American region, does not only refl ect a virtue of its policies, but, above all, a fragile fi scal constitution. Even though ambivalent, some studies show that the country’s public fi nances tended to be sustainable in the last ten years. But, the most recent events of the 2009 economic crisis introduced substantial changes in the indebtedness and economic growth levels,

which according to a recent document,64 led to a fi scal unsustainability situation for 2010.

4. The State: uses of the fiscal policy

4.1 Fiscal stimulus to growth dynamics

A basic macroeconomic postulate is that fi scal policy may stimulate aggregated demand and reactivate economic growth in the short and medium term through greater public expenditure.65

In Guatemala, public expenditure through basic infrastructure investment (capital expenditure) and demand of consumer goods and services (current expenditures) could stimulate economic growth as a complement to private activity.

However, execution of public resources is not the most adequate. The gap is evident: greater execution of the State’s Budget happens with operational expenses (almost 100.0%), against the execution levels in public investment, which for the period between 1985 and 2008 was 79.0% average. This explains why, before a persistent weakness of the fi nances, the State cannot stop paying salaries or buying goods and basic services for its operations, but disbursements for public investment can be considerably delayed. Operational expenses generate a positive dynamic over economic growth, however, capital expenditures infl uence more growth sustainability over the long term by increasing productivity and expanding the possibilities of greater private investment, productive dynamic, and creation of employment.

In sum, even though the fi scal policy has a dynamic potential, public expenditure and its execution face challenges for a more effi cient allocation in terms of human development, improving the State’s institutional capacity.

Stimulus to the private sector

An important part of operational and capital expenditures goes to the private sector through direct acquisition of goods and services and current and capital transfers. That is a stimulus to the productive dynamic which infl uences, in turn, national economic growth and employment generation. The State acquires in the market two types of goods: a) the so called materials and supplies for the State’s operations which


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Graphic 5 Cycles and public expenditure (1980-2008)

Source: prepared by UNDP with Banguat and Minfi n data. Search graphic 5.21 in NHDR 2009/2010 (UNDP, 2010)

GDP Cycle Public Expenditure Cycle

0.8

0.6

0.4

0.2

0.0

-0.2

-0.4

-0.6

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

4.0

3.0

2.0

1.0

0.0

-1.0

-2.0

-3.0

-4.0

66 Minfi n (2008).67 In Díaz (2009).68 Ramírez, E. (2006). 69 Akitoby, C., Gupta and Inchauste (2004). In Acevedo, C. (2007: 45). 70 Alessina and Tabellini (2005).

are goods that because of their nature are for immediate consumption and their utilization time is relatively short.66 And, b) what is known as property, plant, equipment and intangible goods, which include acquisition or construction of capital goods which increase the public sector assets. It must be highlighted that the State has channeled more public resources to the private sector through acquisition of capital goods (80.0% average through 2007) than through acquisition of consumer goods.

Capital goods purchases by the State from the private sector include roads repairs, maintenance and construction; potable water projects; health centers; schools; sports facilities, among others. Additionally, the Government does not only purchase goods and services directly, but it also performs current and capital transfers to the private sector. In the fi rst case, they are transfers associated to social welfare and education. Capital transfers meanwhile are destined to educational and cultural activities, agricultural promotion, transportation, electrifi cation, industry, commerce, and cooperatives.

4.2 Fiscal stimulus as economic cycle stabilizer

The classic defi nition of “cycle” belongs to Burns and Mitchell:67 «Economic cycles are a type of fl uctuation found in the aggregate economic activity of nations that organize their work mainly in business companies: a cycle consists of expansions occurring at about the same time in many economic activities, followed by similarly general recessions, which merge into the expansion of the next cycle, and so on. » A fi scal policy is countercyclical when defi cit increases or surplus decreases in recessive stages so that a positive impulse to aggregate demand propitiates, or, decreasing defi cit, or increasing surplus in expansive phases of the cycle to mitigate the expansion of aggregated demand.

Fiscal policy of the State in Latin America has had, in general, a pro cycle character which contributes to socioeconomical instability, unlike what happens in some developed countries that use their fi scal policy to attenuate the economic cycle pressures, in other words, in a counter cyclic way.68 This has allowed them to decrease the recession phases and extend the bonanza ones. In Latin America «[…] budget restrictions resulting from low revenue collection decrease public expenditure and reinforce the pro cycle character of it […]».69 This has happened in Guatemala.

The State’s expenditure increases in times of economic bonanza and decreases in contraction times, acting in a

pro cycle way as in the case of income. Public expenditure is the mechanism that allows the State to attenuate the adverse effects of an economic contraction, but if the expenditure is low when it is more needed, it limits its crisis stabilizer role. By not generating public savings, social needs cannot be met in recession times, nor can public investment be injected to dynamize productive activities.

Graphic 6 examines GDP cycles with social expenditure, which contributes to strengthening human development. There are not symmetric cycles with economic growth in the period studied, since there are counter cycle moments in mid-1980’s (GDP decreases and public expenditure increases) and pro cycle periods in the 1990’s (both reduce or increase). This behavior, mainly pro cycle, largely refl ects the State’s inability to fi nance social expenditure in adverse times, because public savings are not generated during peak times nor are there stabilizers as unemployment insurance. There is a tendency to spend more in times of economic bonanza and more tax revenue.70

4.3 Fiscal stimulus to income distribution and equity

Social expenditure behavior

Investment on human capacity is fundamental to economic growth and development. Particularly, public expenditure allocation may constitute a key instrument to promote human development and reduce poverty in two ways: improving the global performance of the economy and

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generating opportunities for poor people to contribute to the development process through strengthening their own capabilities.71 The State also has the capacity to improve human development through the mechanism of national income distribution, channeling public resources in favor of majorities, benefi ting socio economic agents, i. e., promoting social expenditure. Such fi nancial resources must be directed to expand the capacity and freedom of the population in sensitive topics such as health and education, in sum, dignity of life.

Social expenditure has increased from 4.5% in 1995 to 7.0% in relation to GDP. When observing internally two of its more important components, health and education, it is worth noticing that in 12 years they have increased in relationship GDP from 2.6 to 4.4%, highlighting what corresponds to education (less for health, see Table 7). However, this allocation is still not enough in relationship to the population’s needs and the commitments established in the Accord on Socio

Economic Aspects and Agrarian Situation.

The quality of social expenditure under the human development paradigm has a fundamental expression in the targets of the Millennium Development Goals (MDG). In achieving universal primary enrollment (MDG 2), the greatest progress has been in the net enrollment rate (98.3% in 2009), which increased 27.2 percentage points in 18 years (1991-2009). The percentage of students that begin fi rst grade and end sixth grade grew from 60.0% (2003) to 77.6% (2009). Literacy rate in the 15 to 24 years old population increased from 74.8% (1989) to 87.8% (2006). However, it needs to be taken into account that studies performed in Guatemala show that an attainment of the equivalent to secondary school is needed to grow out of poverty.72 Since the average school attainment of young population 15 to 24 years old is 6.1 years,73 and that the net rates of enrollment in secondary school are low (37.2% in lower secondary and 20.07% in upper secondary for 2008), the State still has to make a long time fi scal effort to improve the educational capacities of the population.

In relation to reducing infant mortality (MDG 4), indicators show that the mortality rate in children less than fi ve decreased from 110 to 42 per 1,000 live births between 1987 and 2008-2009. Infant mortality rate also decreased from 73 to 30 per 1,000 live births; and the percentage of one year old children vaccinated against measles changed from 69.0 to 78.0%, in the same period. Like in education, the State needs to make a sustained fi scal effort so that its population may be healthy and live a full prolonged life. All of this leads to conclude that social expenditure has not been enough to fulfi ll the population’s needs neither for achieving MDGs. This situation intensifi es when the analysis is accompanied by the topic of equity in social expenditure distribution by income stratum, by municipality, and under the gender approach.

Social expenditure equity

To measure social expenditure equity, estimates were done for two sensible sectors from the human development point of view: health and education. Statistical information from the Minfi n was used in relation to these sectors’ Budget in 2006, as well as data from the National Survey on Livelihood Conditions (Encovi, Spanish acronym) from the same year. It was found that the percentage of income in homes from the 1 quintile improved slightly from 2.8 to 3.2% with the intervention of social public expenditures in health and education, and quintile 5 decreases barely from 58.1 to

Table 7 Social expediture on health and education according to the Peace Accords (Millions of quetzales and GDP percentage)

Source: Prepared by UNDP with Banguat and Minfi n data.See table 5.11 NHDR 2009/2010 (UNDP, 2010).

1996 % 2000 % 2005 % 2008 %

Health and social assistance 821.1 1.0 2003.2 1.5 3626.3 1.7 4282.7 1.5

Education, science and culture 1508.7 1.6 3629.2 2.7 6110.4 2.9 8565.0 2.9

Total 2329.8 2.6 5632.4 4.2 9736.7 4.6 12847.7 4.4

Graphic 6 GDP cycles and social expenditure (1985-2008)

Source: Prepared by UNDP with Banguat and Minfi n data.See graphic 5.23 NHDR2009/2010 (UNDP, 2010)

GDP Cycle Social Expenditure Cycle

5.0

4.0

3.0

2.0

1.0

0.0

-1.0

-3.0

-2.0

-4.0

-5.0

-6.0

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000 20

0120

0220

0320

0420

05 2006

2007

2008

1985 19

8619

8719

8819

89

0.3

0.2

0.1

0.0

-0.1

-0.2

-0.3

-0.4

-0.5

-0.6

71 Acevedo, C. (2007: 8).72 Porta, Laguna and Morales (2006: 18) estimated that for a person to generate mínimum income to grow his/her family out of povety, 12 to 14 years of education are

required and 1 to 10 years of work experience.73 Encovi 2006, in UNDP (2008a: 217).


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57.0%. This has an almost imperceptible impact on the Gini coeffi cient, equivalent to 0.013 changing from 0.543 to 0.530 (closer to 1, Gini means greater inequality in income distribution). In sum, the redistributive effect of income through public expenditure on health and education does not have the expected results of a fi scal policy aimed at improving the population’s equity levels. This means that social expenditures do not meet effi ciently their role of income distributors and equity, associated with an improvement in human development, since they do not correct inequality. In terms of equity, it is also important to consider the gender approach in allocating public resources. According to Seprem (2009), one cannot talk about institutionalizing women’s rights by the State if the necessary budget allocations are not available to decrease the inequity gaps between women and men.

Finally, even though there is not enough information to measure equity of social expenditure by municipality, following is an analysis of approximate estimates about the dispersion in distribution of constitutional allocation by municipality for 2008 and 2009, as well as the proportional distribution and amount per cápita of the constitutional allocation to municipalities for 2009.

Substantial differences between minimum allocations to a municipality of Q4, 638.1 (2008) and Q5, 173.8 (2009) and the maximum allocations of Q141, 684.8 (2008) and Q133, 171.7 (2009) result in gaps per cápita of Q4, 324.2 and Q4, 921.1, for 2008 and 2009, respectively. This infl uences the inequitable development of the territories.

In sum, the redistributive effect of income through public expenditure on health and education does not have the expected results of a fi scal policy aimed at improving the population’s equity levels. A positive impact is neither generated because of the insuffi cient allocation for gender programs or local programs. All of this means that social expenditure does not meet effi ciently its role of income distributor and equity, associated with an improvement in human development, since it does not correct inequality.

4.4 Other limitations of the State’s fiscal policy

The Guatemalan State has other limitations in applying its fi scal policy in relationship to human development, including: transfer and execution of fi nancial resources of the nation’s Budget under trust funds and through non-government organizations (NGOs). Both have been questioned because of transparency and accountability issues due to diffi culties faced in their public control and audits by the General Comptroller’s Offi ce (CGCN, Spanish acronym).

Another limitation is the existence of constitutional mandatory allocations and fi scal rigidity, which diminish fl exibility to the Budget preparation process. In Guatemala, the Political Constitution of the Republic assigned fi xed percentages of the expenditure or of tax collection in favor of certain agencies, institutions, or programs. They are called constitutional allocations. Through them, funds are allocated to the Judicial Branch (OJ, Spanish acronym); Constitutional Court (CC, Spanish acronym); San Carlos University (Usac, Spanish acronym); Autonomous Sports Confederation of Guatemala (CDAG, Spanish acronym); municipalities, physical education schools, recreation and sports, and non-federated sports. Additionally, there are other limitations such as remunerations, debt, interest, and commission payments which are inevitable expenses and in practical terms, fi xed expenditures. As a group, all of these expenditures represent almost 40.0% of the Budget. Together with institutional allocations, 50.0% of the nation’s Budget faces modifi cation infl exibilities and infl uences the possibility of improving budget items related to human development.

Inter-institutional Budget Transfers

Year after year, inter-institutional budget transfers may be a practice that hinders effi ciency in the use of public resources and plannifi cation of public expenditure in the short and long terms. Even though the argument is that they are a mechanism that introduces fl exibility to the Budget, this type of adjustments would have to be reduced to force the initial preparation of the Budget to consider in advance the needs of the various institutions according to their relevance and impact.

45 budget government agreements were approved by December 31, 2008. These provided more resources than originally budgeted to some entities (fewer debits than credits). Other entities ceded resources in net terms to the funds originally allocated (more debits than credits). The government institutions that received more funds than originally allocated were the Ministry of Communications,

Table 8 Constitutional allocation to municipalities, indicative values (2008 and 2009)

Source: prepared by UNDP with Minfi n data.See table 5.15 NHDR 2009/2010 (UNDP, 2010)

Allocation (Q thousands) Per cápita (Q)

2008 2009 2008 2009Media 12,024.0 12,115.5 528.5 514.7

Minimum 4,638.1 5,173.8 93.9 95.3Q1 7,582.2 7,988.4 243.7 249.9Q2 9,454.1 9,810.8 369.8 369.5Q3 13,988.6 13,698.1 638.1 627.8

Maximum 141,684.8 133,171.7 4,418.1 5,016.4

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Infrastructure and Housing (Micivi, Spanish acronym), some Secretariats, and the State’s Treasury obligations. The institutions that suffered more Budget cuts were the Ministry of Education (Mineduc, Spanish acronym), the Ministry of Labor and Social Prevision (MTPS, Spanish acronym), the Ministry of Public Health and Social Assistance (MSPAS, Spanish acronym) and, the Ministry of the Interior (Mingob, Spanish acronym). This infl uences signifi cantly the State’s possibilities to contribute effi ciently to human development levels in relationship to key social expenditures such as education, health, employment, and security.

Conclusions

Scare resources and historical diffi culties claim for an increment of Budget and management efforts in terms of quantity, quality, and transparency in public expenditure. In the last 25 years, the State has not been able to take advantage of the fi scal policy potential to promote human development, because of unsuccessful efforts to increase collection. These include recommendations from the Peace Accords and the Fiscal Pact discussion. Applying the fi scal policy in topics related to human development faces serious challenges, especially, because it has not been possible to benefi t from the multiplying effect of public expenditure on global growth and private activity and because the State has not fulfi lled effi ciently its economic cycle stabilizer role. Consequently, the State has not been able to redistribute the national income nor substantially improve the equity levels that allow achieving the MDGs. Likewise, the State has not been able to strengthening the population’s capabilities under the human development paradigm that conceives the person as an end and as an agent who generates such development.


C 6 Chapter 6About the territorial density of the State

74 According to INE-Celade population projections for 2010.75 According to censuses and surveys by the Statistics National Institute (INE, Spanish acronym), based on auto identifi cation.76 Preliminary Regionalization Law. 77 Every aspect related to the municipality is regulated in the Municipal Code (Decree 12-2002) and the Decentralization Law and its Bylaw as well as the Urban and

Rural Development Councils Law, and its corresponding bylaw. In May 2010, Congress approved Decree 22-2010, which includes amendments to the Municipal Code.78 See methodological annex.

Guatemala has an environmentally diverse territory. It has 108,889 km.2 and an elevation in the range of 0-4,000 meters over sea level. The 14 million plus population (51.0% women) lives in about 28,000 populated places.74 45.0% of the population lives in localities considered rural. The most populated municipalities are located in plateaus and valleys along the Sierra Madre.

The population is ethnically and linguistically diverse. Maya, Xinka and Garífuna communities —indigenous communities — share the territory with the Spanish speaking Ladino or Mestizo population. The indigenous population amounts to 40.0% of the total population;75 the former is settled in the Northwestern region of the country. The territory is politically and administratively organized in 22 departments and 333 municipalities, which are political-administrative units.76

The municipality is part of the State. So is recognized by the Political Constitution of the Republic, specifi cally articles 134 —which establishes autonomy and states the need to have coordination with the general policies of the State— and 224 —which establishes that the municipality is an administrative division; its interior regime is determined by Chapter VII articles, where its institutional autonomy is ratifi ed.77 The municipality is a space of public life and of political interactions, but, especially of power when this is exercised by executing operations or not executing them: the municipality is the local expression of the State.

This chapter analyzes what, with some freedom, we call local density of the State. This term, a linguistic loan, makes reference to the relative «weight» of the State along the territory, using as an analysis unit the municipalities of the

country and their demographic «volume». The State density index is used for this, as well as its respective sub-indices in three dimensions (presence of institutions, bureaucracy, and budget) and three components (health, education, and other State operations). Relationships between the State density, or some of its elements, and human development are also shown.

1. Conceptual considerations

Measuring the State density has the purpose of identifying statehood in quantitative terms. That alludes to agencies of the Executive Branch formal structure, in relationship to its functions, on one hand, and to bureaucracy and fi nancial resources «weight» on the other hand. Section two identifi es what will be called presence of State institutions, based on a simple distinction: a dichotomy that does not qualify but only acknowledges if there are or are not State institutions in terms of «there are» or «there are not». Section three describes the aggregation of this information into a State density index with three dimensions: presence of institutions, number of public employees, and the relative amount of material and/or fi nancial resources.

The State density (DE, Spanish acronym) shows how its institutions, bureaucracy, and available resources are distributed at the municipality level. This information is quantitative and not qualitative. It does not intend to shed light on the quality of public services. A sub-index is presented for each of these dimensions. It ranges from 0 to 1, with 1 being the biggest relative density. The State density index (IDE, Spanish acronym) is the weighted average of the sub-indices.78 Each sub index, in turn, includes three functional order components: education, health, and «others»

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49About the territorial density of the State

Graphic 7 Population distribution per municipality category

Source: INE-Celade. Population projections. See graphic 6.1 NHDR 2009/2010 (UNDP, 2010).

64%

22%

14% 81%

12%

7%

Total population Indigenous population

Metropolitan region

Guatemala municipality

Department capitals

Other municipalities

(7%)

(1%)

(this category includes the rest of the State functions). The (weighted) average of each component, throughout the three sub-indices, also generates other sub-indices of education, health, and «others», as shown in Table 9.

The information corresponds to 2008 through 2010; it was provided by different offi cial sources. DE has varied over time and space. The quality of the information available has not allowed a diachronic presentation, which would give a historical and spatial approximation on how the State appears/disappears or strengthens/weakens locally or regionally in Guatemala’s history.

The structure of the State is comprised of a group of hierarchic agencies or institutions. Institution means a nucleus of activities performed by a human group (bureaucrats) with public policies, precise purposes, and fi nancial, technical, and material resources.

The Guatemalan State is being established as a democratic State. It performs a group of operations that defi ne its character and justify its existence. The State’s basic operations are at least six: a) keeping order and control of the population and society ( judicial function, public order, security, police, prisons, army); b) social cohesion and integration (education, health, housing, environment, employment, poverty, and others); c) legality function to legitimize public order (legislation, elections, political parties, citizenship’s rights and obligations, operational control, transparency, among others); d) self fi nancing, State’s use of its fi scal sovereignty (monopoly over tax collection) to obtain fi nancial resources; e) development promotion (economic policies and relationships with the market) and f ) defense of sovereignty and international relations (relationships with other States and international organizations).

The distribution of the different State institutions is a consequence of its territorial structure.79 Likewise, such distribution refl ects the decentralization level on which institutionality has been set up. An important number of these institutions are concentrated in the capital city. Very few institutions have an organization at the next level, the regional one. In terms of territorial organization, it must be said that department capitals have a greater number of government institutions representation when compared to the municipal level. The information will be presented emphasizing these three levels: capital city, department capitals, and other municipalities.

Although the State is distributed according to these organization levels, most of the country’s population lives

79 Preliminary Regionalization Law.

Table 9 State density index (IDE) dimensions and components

Note: see methodological annex NHDR 2009/2010See table 6.1 NHDR 2009/2010 (UNDP, 2010)

Dimensions/components Education Health Others Sub-

indices

a. Presence of State institutions

Coverage level

Attention level

Number of institutions ia=μ(x1j)

b. Bureaucracy (per number of inhabitants)

Teachers MSPAS staff Employees ib=μ(x2j)

c. Expediture budget (per cápita)

Q / inhab. Q / inhab. Q / inhab. ic=μ(x3j)

Sub- indexes iedu= μ(xi1) isal= μ(xi2) iotr= μ(xi3) IDE= μ(xij)


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Source: Ministries and Executive Coordination Secretariat of the Presidency (SCEP, Spanish acronym).Search table 6.3 in NHDR 2009/2010 (UNDP, 2010)

Minfi n

FSS

Min

ex

Ingu

at

Con

ap

Fodi

gua

Font

ierr

a

Info

m

Ons

ec

SCSP

SBSP

Number of departments: 1 1 2 8 11 5 8 11 2 16 8

Table 10 Presence of State institutions in some department capitals.

in municipalities that are not department capitals (graphic 7). Only 21.0% of the population lives in the capital city and in department capitals. If suburb municipalities’ closeness to the capital city is taken into account, and if the department of Guatemala is considered the «Metropolitan Region», 22.0% of the population lives there. 80.0% of the indigenous population lives outside the Metropolitan Region and department capitals.

2. Presence of State institutions

2.1 Presence of State institutions in municipalities

Presence in some department capitals

Only two institutions with presence exclusively in the capital are identifi ed: the Ministry of Finance (Minfi n, Spanish acronym) and the Directorate of the Solidarity Social Fund. Table 10 shows the institutions that have branches only in some department capitals.

Presence in all department capitals

To perform some specialized public operations, some institutions are present only in a few places. There are others that must cover all the departments of the country and for that purpose, they are located in the department capitals. The range of the institutions presence (IP) is departmental, and the sum of irradiation is then national. The institutions mentioned below have branches in all the department capitals:

• Ministry of Labor and Social Prevision (MTPS, Spanish acronym)

• Ministry of Agriculture, Livestock, and Food (Maga, Spanish acronym)

• Ministry of Communications, Infrastructure, and Housing (Micivi, Spanish acronym)

• Ministry of the Interior (Mingob, Spanish acronym)

• Ministry of Economy (Mineco, Spanish acronym)

• Executive Coordination Secretariat of the Presidency (SCEP, Spanish acronym)

• First Lady’s Social Welfare Secretariat (Sosep, Spanish acronym)

• National Council for Disaster Reduction (Conred, Spanish acronym)

• Statistics National Institute (INE, Spanish acronym)

• Forest National Institute (Inab, Spanish acronym)

• Superintendency of Tax Administration (SAT, Spanish acronym)

• Electoral Supreme Tribune (TSE, Spanish acronym)

• Comptroller General Offi ce (CGCN, Spanish acronym)

• Peace National Fund (Fonapaz, Spanish acronym)

Presence in department capitals and other municipalities

At least two cases can be distinguished in this category. The fi rst one includes the institutions which are present in some department capitals and certain municipalities. In the second one, in addition to being present in all the department capitals, they are also present in other municipalities. In both cases, the number of municipalities varies. The fact that an institution is present in a municipality does not imply it only has activities in said jurisdiction. The assigned staff may be in charge of a bigger geographic area. Figure 4 is shown below as an illustration.

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Figure 5 Municipalities according to highest available level of public education

Only primary

Throught lower secundary

University

Highest level

Source: Mineduc and Usac. See fi gure 6.14 NHDR 2009/2010 (UNDP, 2010)

Throught upper secundary

Figure 4 Municipalities with presence of Presidential Commission against Discrimination and Racism against Indigenous Populations in Guatemala (Codisra, Spanish acronym) and the Council for the Defense of Indigenous Women (Demi, Spanish acronym) agencies.

a. Presidential Comission against Discrimination and Racism against Indigenous Populations in Guatemala

b. Council for the Defense of Indigenous Woman

Source: Codisra and Demi. See fi gure 6.7 NHDR 2009/2010 (UNDP, 2010)

Entities present in all municipalities

State presence increases as functions become more complex; that is when State agencies are present in all municipalities of the country. There are substantive State’s functions such as education, health, security, and justice which demand that institutions be present throughout the country. Nevertheless, territorial performance of these functions is differentiated by levels of attention or coverage. To complete the fi rs sub index, the one related to institutional presence (PE, Spanish acronym) the maximum level of education offered by the State (Mineduc and Universidad de San Carlos, Usac80), the maximum level of the MSPAS’ care, and the presence of the different levels of the Judicial Branch ( JB) were taken into account. The three following illustrative fi gures show information about justice, education, and health.

80 Secondary school is divided in two cycles, lower and upper secondary. Within the public sector, both are covered by Mineduc. The tertiary level of the public sector is

covered by Usac.


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Figure 8 Sub index (b): State bureaucracy density

0.06 - 0.180.19 - 0.290.30 - 0.41 0.42 - 0.52 0.53 - 0.64

Source: prepared by UNDP. See fi gure 6.20 NHDR 2009/2010 (UNDP, 2010)

Figure 7 Sub index (a): State institutions presence

0.21 - 0.370.38 - 0.530.54 - 0.680.69 - 0.840.85 - 1.00

Cabeceras


Figure 6 Municipalities according to maximun available level of public health services

Primer nivel

Segundo nivel

Tercer nivel

Nivel máximo

Source: MSPAS. See fi gure 6.15 NHDR 2009/2010 (UNDP, 2010)

First level

Second level

Third level

Maximum level

0.21 - 0.370.38 - 0.530.54 - 0.680.69 - 0.840.85 - 1.00

Departament capitals

3. State density

According to table 11, following are the data corresponding to sub-indices of State institutions presence (fi gure 8), State bureaucracy density (fi gure 9), and specifi c State budget (fi gure 10). According to the color code, blue areas represent those with the highest values, the green ones have intermediate values, and the yellow ones have the lowest values.


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Figure 10 State density index (c. 2008)

Departamentcapital

0.11 - 0-240.25 - 0.370.38 - 0.490.50 - 0.620.63 - 0.75

Source: Prepared by UNDP.See fi gure 6.23 NHDR 2009/2010 (UNDP, 2010)

Figure 9 Sub index (c): specifi c State budget

0.01 - 0.130.14 - 0.250.26 - 0.380.39 - 0.500.51 - 0.62



4. State density index (IDE, Spanish acronym)

The State density index (IDE), is the weighted measure of the three sub-indices shown previously: (a) + (b) + (c). Consequently, it summarizes the corresponding data on education, health, and other State institutions under the following dimensions: presence of institutions, bureaucracy, and budget. It is an index of indices. Figure 10 shows the country territory according to this index; therefore, it is the fi nal expression of what has been called State density in each of all municipalities. The lowest State density zones, the «yellow» zones, represent most of the country territory. The department capitals have a medium density, and Guatemala City alone has the highest density. The statistical annex of the 2009/2010 NHDR has a table with the different IDE numbers per municipality.


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Figure 11 Total coverage of the education system and of the public sector in secondary school (Gross enrollment rate, 2008)

2 - 3435 - 7576 +

TES secondary school

0 - 3435 - 7576 - 100

PS secondary school

e. Total coverage of educational system f. Public sector coverage

Source: prepared by UNDP with Mineduc data.See fi gure 6.24 NHDR 2009/2010 (UNDP, 2010)

5. Variations over a State density topic: absence and coverage

When there is not enough offer of public services, the population chooses to obtain private services or those provided by other sectors, such as non-government organizations (NGOS), and other entities. A State density analysis would imply verifying the provision of all services in the territory and coming close to a quantifi cation of what is covered by the State. With the available information, it is possible to describe the education system coverage at the municipal level, which includes various sectors. Although it is true that the State provides more than 80% of the coverage (measured in terms of gross enrollment rate) in preprimary and primary; in the case of secondary school, more than half of the student population attends private schools and another proportion attends cooperative schools (see fi gure 12). In urban areas, the demand for private education services is much higher.81

6. Some relationships between density and social indicators

Figure 12 shows the State density index vis-a-vis low human development index (HDI) and low education index82 municipalities. There was not a high correlation between human development and State density. However, the fi gures show that in the municipalities with the lowest indicators there is less State density.

IDE, analyzed from the perspective of municipalities with the highest poverty rates, is shown in Figure 13. Causal reasons of poverty are diverse,83 but it is evident, for example, that poverty zones have less State density.

81 Chapter VII analyses this topic further.82 As discussed in Chapter III, the HDI has three components: education, health, and income.83 See Chapter X.

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Figure 13 IDE and municipalities with high poverty levels

a. b.

Extreme P > 75%

Poverty › 75% Poverty › 25%

Source: Prepared by UNDP and Segeplan for the maps of poverty.See fi gure 6.28 NHDR 2009/2010 (UNDP, 2010)

Extreme P > 25%

HDI < 0.5

a.

Figure 12 Index of State presence and low HDI and low education HDI municipalities (*)

HDI edu < 0.5

(*) Marked with x patternSource: prepared by UNDP. HDI based on previous HDR.See fi gure 6.25 NHDR 2009/2010 (UNDP, 2010)

b.


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Figure 14

Indigenous p > 50 % Rural p >75 %

a. Mostly indigenous (› 50.0%) b. More than 75.0% rural

Source: Prepared by UNDP and INE-Celade proyections. See fi gure 6.29 NHDR 2009/2010 (UNDP, 2010)

Figure 14 shows the relationship between State density, indigenous population, and rurality. The information provided by this fi gure may have varied derivations. Index data may allow inferring that the State is less present in these municipalities; that it does not operate in big indigenous zones of the country. From the variables used for building the State density index, these municipalities would have the minimum number of schools, health centers, police offi cers, bureaucrats, and public resources, in open contrast to the more urban municipalities, where most of the population is ladino. The territorial analysis allows this preliminary and indicative comparative approach, which should be the basis for qualifying the nature of the national State in terms of its coverage and functions.

Conclusions

The State density analyzed in this chapter refers to the presence of institutions that provide basic services such as health, education, security, justice, and others; to the bureaucracy, and to the budget. The information used for building the IDE does not make a reference to the quality of the services or their pertinence, but it does allow describing the territoriality of the State. Likewise, as shown here, it allows to statistically analyze the relationships between State density and wellbeing indicators such as the HDI.

Figure 14 IDE and municipalities with highest indigenous and rural populations

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57The State, health, and education

Chapter 7 The State, health, and education

This chapter addresses the main actions the State has implemented in health and education during the 1985-2009 period regarding norms, sector policies, and strategies launched, as well as fi nancial resources allocated. Regarding health, this chapter also presents the care logics that have infl uenced services design and implementation and the main State’s actions in this topic, including the sector reform and the commitments of the Peace Accords, quantitative and qualitative changes in the service network, health staff, indigenous people’s health, fi nancing and public expenditure, as well as some indicators84 trends. In education, this chapter describes the phases of the education system and summarizes key policies: literacy, coverage, and quality. For each one, some strategies implemented by the State are presented in chronological order, as well as data and indicators that allow visualizing progress and lags. Because of its relevance for continuity of the public policy, curricular reform, intercultural bilingual education, teacher training, education assessment, and participation are highlighted .

1. The State and health

The Political Constitution of the Republic and the Health Code assign the Ministry of Public Health and Social Assistance (MSPAS, Spanish acronym) the health system leadership. Currently, there are two approaches in the development of the leadership concept, its functions, attributes, and mechanisms. Though similar, they have a different background and emphasis. These are the model of the Pan-American Health Organization (PAHO) and the one from the World Health Organization (WHO). In the fi rst one, the main concern is the separation of the health system functions: leadership, assurance, purchases, and service delivery, as well as strengthening the national sanitary authority for the system leadership. In the second one, four main functions are defi ned: leadership, income generation

(personnel, infrastructure, and knowledge), fi nancing, and service delivery. Said functions interact to reach the three main objectives of all the health systems: a) responsiveness to the population’s health expectations; b) equity in the fi nancial contribution to the system; and c) improvement of the population’s health status.

1.1 Health service logics

Health attention models based on two different logics are identifi ed internationally. Such models have oriented or infl uenced health policies in Guatemala during the 1985-2009 period: primary health care (PHC) and selective primary health care (GOBI-FFF). The latter infl uences Guatemala’s sanitary thinking and MSPAS, where the interest in providing attention to high risk population groups: children and mothers, pregnant women, and breastfed children, prevails, as well as strengthening preventive activities such as immunizations, sanitary education, and sanitation. GOBI-FFF seems to consolidate in the current sanitary attention model promoted by the Extension of Coverage Program (PEC, Spanish acronym). PEC became effective through an Interamerican Development Bank (IDB) loan known as Health Service Improvement Program (PMSS, Spanish acronym), executed in 1996-1999.

1.2 Action periods of the State in health

The periods featured are: 1985-1990, when the role of the State regarding health is defi ned; 1991-1999, when the reform of the health sector is designed and implemented under the State subsidiarity infl uence; and 2000-2009, when the inertia of the health sector reform continues to infl uence the sanitary course of action. Due to space limitations in this summary, following is a chronological description of some actions taken in each of the periods.

84 For a broad diagnosis, see UNDP (2008c).

PART III THE STATE AND HUMAN DEVELOPMENT


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85 Congress of the Republic of Guatemala, Health Code. 86 Verdugo Urrejola, JC. (1995: 3).87 MSPAS (1999: 1-2).

The 1985 Political Constitution of the Republic recognizes health as a «fundamental right of the human being, without any discrimination whatsoever», as well as the State’s obligation to ensure health and social assistance and develop the pertinent actions in order to seek «the most complete physical, mental, and social wellbeing» of the population. It states that population’s health is a public asset, whose leader is the MSPAS. It establishes the obligation of all persons and institutions to seek health’s conservation and reestablishment and to seek coordination with specialized institutions and international organizations to achieve an adequate food system. Communities, meanwhile, have the right and duty to participate actively in planning, executing, and evaluating health programs.

In 1985, article 104 of the Health Code was amended. «All the inhabitants of the Republic, especially women during pregnancy, labor, and puerperium up to eight weeks after delivery, and children from their time of birth, have the right to preventive attention and medical assistance in State institutions.»85 The maternal-child approach has been key in health policies.

In the late 1980s, special relevance to public service delivery by MSPAS was given, and the PHC infl uence still continued, based on the Health Local Systems (Silos, Spanish acronym) methodology and on community participation. Silos and community participation are oriented to collective empowerment to infl uence health social determinants, as well as to search effi ciency, effi cacy, and equity of the health system through social participation and service administration improvement.

During the early 1990s, State modernization began, and with this, the health sector reform (RSS, Spanish acronym). Health policies followed precepts such as: a) reduction of public expenditures and reorientation towards preventive care; b) targeting health expenditures to the poorest sectors and vulnerable groups; c) State services decentralization, and d) payment to third parties for health services provision, thus giving opportunity to private lucrative or non-lucrative services.86

Health reform was not accomplished as originally planned, because of the MSPAS structural defi ciencies and the departure of the Guatemalan Social Security Institute (IGSS, Spanish acronym) from the reform process. Changes within MSPAS regarding management were implemented and PEC was promoted as the attention model. MSPAS’ capability

to exercise the leadership role remained unchanged and it remained unable to coordinate with other health institutions and actors.

In 1996, the Government and URNG signed the Accord on socioeconomic aspects and agrarian situation, which endorses the contents of the Health Services Improvement Program (PMSS I, Spanish acronym). The program raises the health national sector reform; establishes the MSPAS’ role as coordinator of other institutions such as IGSS and private and non-government institutions; and mentions the increase of resources targeted to low income populations. It also establishes as attention priorities to fi ght malnutrition, sanitation, and primary care solutions for maternal-child populations. Reducing infant and maternal mortality is set forth as a commitment, as well as keeping the poliomyelitis eradication certifi cation and reaching measles eradication by year 2000. It also projects administrative decentralization and de-concentration, as well as municipal, communities, and social organizations participation in planning, auditing, executing, and administering health services and programs.

In the legal framework, the main changes for MSPAS took place after the new Executive Branch Law and the new Health Code were approved in 1997. The code defi nes health as a social product related to the country’s development level, life conditions, and social, individual, and collective participation. It recognizes the right to health and the State’s obligation to ensure the population’s health. Nevertheless, it states that the MSPAS «will ensure providing free services to those persons and their families whose personal income does not allow them to pay for all or part of the services provided». It also establishes the community’s duty to participate in partial or total administration of health services and programs (planning, organization, leadership, execution, control, and social audit). This legal framework opens the possibility to charge for health public services and service delivery to the communities.

PEC had as its main objective to increase the extremely low coverage of health services at the fi rst level. By 1995, it was estimated that around 46.0% of the population lacked care at this level. This population was located in disperse, hard to reach geographic areas, had high levels of poverty, and were mostly indigenous.87 PEC was implemented following the essential guidelines of the health sector reform, such as: a) care to poor and vulnerable populations (targeting); b) provision of a basic, cost-effective, maternal-child-based (preventive care) package of services; and c) participation of private entities in service administration and delivery.

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88 MSPAS (1997:18) .89 Committee on Economic, Social, and Cultural Rights, General Observation No. 14 on «The right of everyone to the enjoyment of the highest attainable standard of physical

and mental health (art. 12)».90 Budget Technical Directorate (2000: 130).

During the fi rst decade of the XXI century, PEC worked with State’s own resources and a second IDB (PMSS II) loan. The different government administrations that were in offi ce during that period managed PEC differently. Between 2000 and 2009, it increased from 248 to 425 jurisdictions of 10,000 inhabitants each, and from being present in 145 municipalities to 206.

During this time, new service modalities such as health posts strengthened with doctors or nurses, the Maternal-Child Integrated Attention Centers (Caimi, Spanish acronym), and the Permanent Care Centers (CAP, Spanish acronym) were incorporated. These modalities have increased with the delivery of conditional cash transfers in priority municipalities as of 2008, the corresponding health co-responsibilities, expansion of the service hours, and provision of care during weekends.

Institutional modernization, management strengthening, and priorization of maternal-child care (renewed by the Millennium Development Goals MDG) have been kept through the «Integrated management of childhood prevailing illnesses» (Aiepi, Spanish acronym) and the «community-based integrated care to children and women» (AINM-C, Spanish acronym).

Additionally, the Food and nutritional security policy was formulated, the Food and Nutritional Security Law was approved, and food and nutritional councils were established. In 2005, the law that creates the following institutions was approved: Food and Nutritional Security National System (Sinasán, Spanish acronym), the Food and Nutritional Security Secretariat of the Presidency of the Republic (Sesán, Spanish acronym), and the Nutritional Security National Council (Conasán, Spanish acronym); MSPAS is a member of this council.

Attention to HIV/AIDS, tuberculosis, and vector-transmitted diseases has had a greater impulse because of fi nancial resources from the Global Fund to Fight AIDS, Tuberculosis, and Malaria. Regarding the legal framework, in the early 2000s the HIV/AIDS General Law, the Social Development Law, and the Social and Population Development Policy were passed. These laws contemplate the establishment of the HIV/AIDS Program and the Reproductive Health Program within the MSPAS.

In recent years, amendment to articles 4 and 5 of the Health Code stands out. The original article 4 allowed total or

partial payment of services by families and persons, while the amended article states «the State, through the Ministry of Public Health and other public institutions, will ensure the provision of free health services to every Guatemalan.» In 2008, the Government completely banned payments requested by foundations to users. This implied that hospitals stopped providing some services because those were not included in the MSPAS budget.

1.3 Service network

The right to health includes availability and acces to the health public services network. States have to ensure the existence of suffi cient hospitals, clinics, and other health centers, and that these are available to all, taking into account equitable distribution throughout the country. In the 1990s decade, public hospitals were built in Escuintla, San Marcos, and Quetzaltenango and health centers and posts were refurbished. In 1995, 46.0% of the population did not have access to health services.88 There was a coverage increase as a result of PEC implementation, which covered 2.52 million inhabitants in 1999 and 4.04 million in 2010.

The scene changes when the public service network evolution is rated vis-a-vis population increase (table 11). Between 1990 and 2006 the trend has been towards reducing the health service availability per number of inhabitants in hospitals, health centers, and posts and increasing convergence centers periodically covered by itinerant doctors hired by NGOs that sign agreements with the MSPAS.

1.4 Health staff

General Observation 14 of the Committee on Economic, Social, and Cultural Rights (CESCR) established the essential elements of the right to health, among them availability and quality, which includes that every member State should have medical staff and qualifi ed and well paid staff, considering the existing conditions in the country. In turn, the Committee expressed that the obligation to fulfi ll demands that the «States have to ensure the appropriate training of doctors and other medical staff ».89

For the 1985-1990 period, most of the MSPAS staff was hired under line item 011.90 In 1996, the MSPAS initiated its voluntary retirement program which affected the decrease of technical staff who retired to have better remunerated jobs with the private sector. In 2007, MSPAS had 23,850


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Source: prepared by UNDP based on MSPAS information and INE population projections. See table 7.5 NHDR 2009/2010 (UNDP, 2010).

Table 11 Physical infrastructure of the Ministry of Public Health and Social Assistance service network (1990-2006) (per million inhabitants)

Type of infrastructure 1990 1998 1999 2000 2001 2002 2003 2004 2005 2006

System hospitals 3.93 4.01 3.92 3.83 3.74 3.65 3.56 3.47 3.39 3.30

Health centers 24.70 23.71 25.63 25.12 24.69 24.43 23.83 19.45 18.98 21.43

Type A Health centers - - - - - - - 1.69 1.65 1.15

Type B Health centers - - - - - - - 17.76 17.32 20.28

Health posts 88.13 82.99 87.48 85.5 83.36 82.60 79.67 72.39 56.93 69.36

Strengthened Health posts - - - - - - - - 6.77 3.53

Peripheral clinics - 0.28 0.27 0.27 0.26 0.25 0.25 0.32 0.31 0.23

Birth centers - 0.56 0.46 0.62 0.61 0.59 0.58 0.56 0.55 0.38

Emergency centers - 0.37 0.36 0.45 0.43 0.42 0.41 0.40 0.39 0.31

Convergence centers - 174.38 232.42 218.79 217.41 228.99 326.38 247.13 314.08 319.77

Permanent Care Centers (CAP, spanish acronym) - - - - - - - - 1.73 1.69

Mternal- Child Integrated Attention Centers (Caimi, Spanish acronym) - - - - - - - - 0.31 0.31

Ambulatory patients care centers (Cenapa, Spanish acronym) - - - - - - - - 1.81 2.46

9 1 Hernández, L. a Miranda, J (2010:51).92 MSPAS (2009a).

employees, excluding staff hired by PEC91 NGOs. That is, in almost 20 years the number had increased by 23.0% (4,468 new employees), in comparison to 1988. In 2009, the number increased to 26,200, i.e., almost 10.0% increase (2,350) in a two-year period.92 That year, of every 100 doctors, 57 were hired under budget line items that did not imply permanence. On the other hand, in the last years there has been diffi culty to hire staff to work in different departments of the country and in the rural area.

1.5 Cultural pertinence and indigenous populations’ health

The topic of indigenous populations’ health did not have much presence in the government agendas or plans during the 1985-1990 period. The last decade of the XX century was crucial for indigenous populations in Guatemala, since there were mobilizations at the world and national level that placed their specifi c rights, needs, and demands in the public

Source: (a) OPS (1992: 43); (b) MSPAS/DGRH (s/f: 16-18); (c) MSPAS/DGRH (2009); (d) It includes doctors, professional nurses and specialists; (e) Not broken down in the reports used; line items 011, 021, 029, 031 and 182 are included. See table 7.6 NHDR 2009/2010 (UNDP, 2010).

YearProfessional Junior technician Auxiliar nurse Administration Support services Total

Núm. % Núm. % Núm. % Núm. % Núm. % Núm. %

1988ª 1629 8,4 2,706 14,0 5231 27,0 5718 29,5 4098 21,1 19,382 100,0

2007b 5108 21,4 ND - 6903 28,9 5976 25,0 5863 24,6 23,850 100,0

2009c 6458 24,6 ND - 7061 26,9 6539 24,9 6142 23,4 26,200 100,0

Table 12 Ministry of Public Health and Social Assistance employees per ocupational category (1988, 2007 and 2009) (number and percentage)

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Graphic 8 Public and private expenditure as percentage of the total health expenditure (1996-2005)

Source: prepared by UNDP based on Minfi n data. See graphic 7.6 NHDR 2009/2010 (UNDP, 2010).

100

50

0

2005200420032002200120001999199819971996

Health public expenditure Health private expenditure

93 Minugua (2003: 41-70,177-217). 94 PAHO/WHO resolution that urges Governments to establish mechanisms for formulating policies and strategies, as well as developing health and environment activities

for specifi c indigenous populations.95 USAID/Dialog for Social Investment in Guatemala (2008).

agenda. The Accord on socioeconomic aspects and agrarian situation (Asesa, Spanish acronym), in the health topic states that indigenous medicine must be appreciated, its study must be promoted, and its conceptions, methods, and practices must be rescued.93

Regarding indigenous populations’ health, among the international commitments reached in said decade are the ones included in the Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (of the International Labour Organization, ILO, signed in 1989 and ratifi ed by Guatemala in 1996) and the Health Initiative for Indigenous Populations of America (Sapia, Spanish acronym).94 Section V refers to social security and health, posing that social security regimes must be extended progressively to interested populations and must be applied without any discrimination whatsoever. It establishes that the Governments must make available to the population adequate health services, organized at the community level and in cooperation with them, giving preference to training and employment of sanitary staff from the local community.

Article 161 of the 1997 Health Code recognizes alternative systems; it states that the State—through the health sector—«will incorporate, regulate, and strengthen alternative systems, such as homeopathy, natural medicine, traditional medicine, therapeutic measures, and others for health attention, establishing mechanisms for their authorization, evaluation, and control».

Various State actions to fulfi ll the health indigenous populations’ demands began during the XXI century. The Traditional and Alternative Medicine National Program (PNMTA, Spanish acronym) is established within the MSPAS. This Program’s efforts have been developed during the three Government terms with the support of international cooperation (Apresal, Spanish acronym, of the European Union, PAHO/WHO, the Swedish Cooperation Agency for International Development, Asdi, Spanish acronym, and UNDP). Another highlighted initiative is the establishment and operation of the Attention Unit for Indigenous Population’s Health and Interculturality in Guatemala (Uaspiig, Spanish acronym) in 2009, as an agency of MSPAS.

1.6 Health financing and public expenditure

MSPAS’ current and accrued budget had in general a substantial increase from 1985 to 2008. Execution levels improved starting in 1997 and they remained between 92.9 and 99.0%. However, when contrasting MSPAS’ real accrued Budget per capita, it is evident that in 1988, this had Q12.10 (1980 prices) per inhabitant; in 1997, Q6.42, and during the fi rst eight years of the XXI century, between Q9.52 and Q10.30. This trend has infl uenced the Ministry’s fi nancial capacity to face the population’s growing needs.

Between 1985 and 2009, MSPAS’ accrued budget as percentage of GDP ranked between 0.7 and 1.4%, with a tendency to vary in the last years from 0.9 to 1.1%. According to graphic 8, between 1996 and 2005 there has been a trend for greater private expenditure vis-a-vis health public expenditure, mainly from out of pocket expenditure. A health system whose fi nancing is mainly home-based and is highly inequitable95 and does not pay for substantive improvements in human development.

1.7 Indicators

Of the care coverage indicators, i.e., vaccination coverage, infant malnutrition, maternal mortality, and delivery care, two have been chosen in this summary. The fi rst one, vaccination coverage, shows progress, while the second one, chronic malnutrition, faces a serious challenge for public policy.


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2. The State and education96

Guatemala’s education system covers from the initial education level (attention to 0 to 4 years old children) through university education (from 18 years on), including pre-primary (5 and 6 years old), primary (7 to 12 years old) and secondary school (13 to 15 years old for lower secondary and 16 to 18 years old for upper secondary). The system is divided into school and after school. Tertiary education is under the leadership of San Carlos University (Usac, Spanish acronym) and besides some cooperation agreements with Mineduc in terms of in-service teachers’ training, there is not a link between both public entities.

2.1 Normative support for education as a right

The Political Constitution of the Republic includes the general legal framework that covers the national education system. Said law states the population’s right to education. It grants the State the duty to facilitate education without any discrimination whatsoever. Article 74 also states that «[…] the population has the right to receive initial, preprimary, primary, and secondary school education ». It establishes that education will be free and must be decentralized and regionalized, and that education must be bilingual in schools where most of the population is indigenous. Article 75, besides declaring literacy as a national urgency, states that the State must organize it and promote it with all the necessary resources.

The National Education Law, Decree 12-91, establishes the education goals, Mineduc’s structure, and the scope of the public, private, and cooperative education centers. This law is enacted with the bylaw established in 1977, through Government Decree M.deE [sic]. 13-77, corresponding to the previous Education Law. This situation has generated some legal incongruence that has not been cleared for almost two decades.97

The Literacy Law stipulates that the essential objective of the process is to provide the means for illiterate population to have access to written culture, as a contribution to the development of human potential to participate in improving the quality of their lives and their ability to contribute to the common good.

2.2 Education policies (1985-2009)

During the late 1980s, Mineduc was in charge of all actions related to the education process: building and refurbishing buildings, developing and printing textbooks, baking and distributing cookies, hiring administrative and teaching staff, as well as their respective in-service training; providing furniture and school and cleaning supplies; and developing tests and evaluation instruments, among others. Outsourcing for the provision of some of the above mentioned services was introduced around 1996, and the National Community-managed Program for Educational Development (PRONADE, Spanish acronym) began. Under PRONADE, teacher hiring is assigned to education committees (Coeduca, Spanish acronym). As part of modernization efforts, education statistics information management was strengthened as a tool to evaluate results of the implemented actions.

Source: Ensmi 2008-2009. See table 7.10 in NHDR 2009/2010 (UNDP, 2010)

Table 13 Chronic malnutrition rate (percentage)

By area 1987 1995 1998/1999 2003 2008/2009

Urban 47.2 35.3 32.4 36.5 28.8

Rural 62.1 56.6 54.4 55.5 51.8

By education level 1987 1995 1998/1999 2003 2008/2009

Without education 68.6 63.8 64.4 65.6 62.9

Primary 56.3 48.0 44.5 46.4 43.3

Secondary and more 30.2 14.7 12.7 18.6 15.8

Total 57.9 49.7 46.4 49.3 43.4

Graphic 9 Vaccination coverage in children 12 to 23 months of age (1987-2009) (percentage)

Source: 2008-2009 Demographic and Healthy Survey(Ensmi, Spanish acron-ym) preliminary report. See graphic 7.12 NHDR 2009/2010 (UNDP, 2010).

100

80

60

40

20

0

1987 1995 1998/1999 2002 2008/2009

71.2

62.559.5

42.6

24.7

51.055.9

66.776.7

77.684.376.7

78.1

91.985.2

96.790.4

78.2

47.052.1

68.7 59.475.1

80.6

70.4

BCG DPT 3 Polio

Measles All vaccines

96 Information for this section comes from investigations performed for this report by Spross, V. et ál. (2010) and Sazo de Méndez, E. (2010). The topic will be further

discussed in a Human Development Notebook of the 2009/2010 series.97 Álvarez, V. (2004).

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In addition to this change of approach, the implementation of the education commitments from the Peace Accords started in the period following 1996. These recognize that, to access sustainable development in Guatemala, it is indispensable to raise inhabitants’ living standards, health, education, social security, and training. The Accord on identity and rights of indigenous populations (Aidpi, Spanish acronym) highlights that the education system should respond to the cultural and linguistic diversity of the country, recognize, respect, and promote indigenous cultural values. It emphasizes the inclusion of indigenous education conceptions in the national curriculum, as well as using indigenous languages in the education system, and promoting intercultural bilingual education in particular. To respond to these new demands for the education system, the State had to promote the design and development of an education reform. With Asesa, the State committed to signifi cantly increase the resources targeted to education and urgently expand the coverage of education services at all levels, specifi cally, bilingual education in the rural areas.

As an answer to the commitment, the Education Reform Paritary Commission was established in 1997 (Copare, Spanish acronym attached to the Peace Secretariat, Sepaz, Spanish acronym), which developed the Education reform design and submitted it in 1998. Then, the Education Reform Consultative Commission (CCRE, Spanish acronym), also established in 1997, accompanied the reform implementation process during one decade. CCRE led the «Dialogs and consensus for education reform», an exercise that allowed the temporary introduction of the municipal, departmental, and national education councils described in the Education Law. The Education National Council, with multi sector representation similar to the Consultative Commission, was established in 2008 to comply with the National Education Law (1992).

Literacy: insuffi cient increase with gaps to overcome

The Literacy National Committee (Conalfa, Spanish acronym) was established in 1986 to implement the literacy process. Conalfa is in charge of defi ning and approving the corresponding policies and strategies, as well as promoting the process at the national level through development institutions. Its target population is people 15 years of age or older who do not know how to read or write. Public and private institutions are part of Conalfa. Its legal basis is the Literacy Law as amended, as well as the Bylaw of said Law. According to this legal instrument, Conalfa had an initial allocation of 1.0% from the Ministry of Education’s budget,98 through the central Government, to ensure the operation and

continuity of its programs. This allocation decreased by one tenth in the seven subsequent fi scal periods.

The literacy mandate is ratifi ed beginning with the Peace Accords; they encourage an expansion of its programs in all languages as technically possible, with the participation of indigenous organizations capable to accomplish this objective. In the 1989-2006 period, literacy rate increased 14.5%; for women this increase was 17.2%, while for men it was 12.1%. The gender gap decreased from 18.0 to 12.9%; the area gap, from 31.4 to 23.7%; the ethnic gap from 38.2 to 23.8%; and the existing gap between non-poor and extremely poor population between 42.3 and 40.4%. However, lower literacy rates in indigenous and extremely poor populations still persist at the end of the period.

Towards primary universal coverage, but still far from secondary universal coverage

Through Mineduc, the State has kept an interest in expanding the coverage of education services during the period studied. A coverage policy was established since the fi rst democratic government. In the mid-1990s, the Peace Accords establish commitments of urgent expansion of the education service coverage at all levels, and the intercultural bilingual education offer in the rural areas. One of the commitments was to facilitate access to all populations between 7 and 12 years of age to at least three years of school before year 2000.

Graphics 10, 11, 12 and 13 show the increase in the number of students by level and cycle, as well as the public sector participation in initial enrollment vis-a-vis other sectors (private and cooperative), from the mid-1980s through 2009. The public sector has managed to keep or increase its participation in preprimary and primary levels, whereas, in the secondary school levels its participation has decreased. In 1987, the public sector covered 45.0% of the upper secondary students, and in 2009, 19.9%. That is to say, access, in eight out of ten students depends on the economic capacity of the homes to pay for private education. However, upper secondary education is needed to break the poverty cycle.99

Mineduc’s strategies to increase coverage at the different levels have been diverse. In the primary level, coverage in the rural area increased through Pronade, which began in the 1990s and was closed in 2009. It covered almost 465,000 students. At the lower secondary level, various modalities have been implemented including Telesecundaria [TN: a system of distance education programs] and the Educational Family Nuclei of Development. Cooperative institutes, established in 1972, and strengthened through the Education Cooperative

98 González Orellana, C. (2007:461).99 Porta, EJ., Laguna and Morales, S. (2006).


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Graphic 11 Primary: number of students and initial enrollment and participation per sector (1987-2009) (percentage)

Source: prepared by UNDP based on: 1987 Unesco (1987); 1988-2008, Mineduc, Statistical yearbooks; 2009, Mineduc, Rapid count.Note: 114 children from cooperative institutes were included in the 1999 ofi cial sector numbers. See graphic 7.16 NHDR 2009/2010 (UNDP, 2010).

3,000,000

2,500,000

2,000,000

1,500,000

1,000,000

500,000

0

15% 15% 16% 17% 17% 17% 17% 17% 16% 16% 15% 13% 13% 12% 12% 11% 11% 11% 11% 11% 11%

1987 1988 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

85% 85% 84% 83% 83% 83% 83% 83% 84% 84% 85% 87% 87% 88% 88% 89% 89% 89% 89% 89% 89%

Students Public Private

Graphic 10 Preprimary: number of students enrollment (percentage), and bilingual preprimary initial enrollment (percentage) participation per sector (1987-2009)

Source: prepared by UNDP based on: 1987 Unesco (1987); 1988-2008, Mineduc, Statistical yearbooks; 2009, Mineduc, Rapid count.See graphic 7.15 NHDR 2009/2010 (UNDP, 2010).

700,000

600,000

500,000

400,000

300,000

200,000

100,000

0

28% 27%31% 33% 32% 34% 33% 32% 30%

28%

22% 20% 19% 19% 20% 19% 19% 20% 20% 19% 19%

1987 1988 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

72% 73%69%

67% 68%66% 67% 68% 70%

72%

78% 80% 81% 81% 81% 81% 81% 81%80% 80% 80%

36%

36% 34%32%

30%27%

23%20% 20% 19% 18% 18% 17% 16%

33%

37%

Students Public Private Bilingual

100 Castillo, D. (2006).

Institutes Law,100 have also contributed to secondary school coverage. They have tripartite fi nancing (parents,

municipalities, and Mineduc) and they are considered as a different sector than the public and private sectors.

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Graphic 13 Number of students in upper secondary and participation per sector (1987-2008) (percentage)

Source: prepared by UNDP based on: 1987 UNESCO (1987); 1988-2008, Mineduc, Statistical yearbooks; 2009, Mineduc, Rapid count.See graphic 7.18 NHDR 2009/2010 (UNDP, 2010).

Students % public % private % cooperative

350,000

300,000

250,000

200,000

150,000

100,000

50,000

0

90.0%

80.0%

70.0%

60.0%

50.0%

40.0%

30.0%

20.0%

10.0%

0.0%

1987

1988

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

1991

1992

1993

Graphic 12 Number of students in lower secundary school and participation per sector (1987-2009) (percentage)

Source: Mineduc, Statistical yearbook 2009.See graphic 7.17 NHDR 2009/2010 (UNDP, 2010).

700,000

600,000

500,000

400,000

300,000

200,000

100,000

0

1987

1988

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

Students % public % private % cooperative

60%

50%

40%

30%

20%

10%

0%

101 Unicef / Demi (2007: 37). 102 See MDG 3 indicators in the statistical annex.103 Mineduc (1987). 104 The Commission was established by Aidpi (signed in March 1995).

Access to education by women and indigenous populations

Taking into account that 2006 Encovi reports that 40.0% of the country’s population is indigenous, ethnic gaps unfavorable to indigenous populations still exist in the education system. In preprimary, 15.9% of students are indigenous; in primary 36.6%; in lower secondary 22.0% and in upper secondary 13.2%. When the public sector’s participation is examined, it is evident that this decreases from primary to lower secondary and from this to upper secondary.

Among the main problems the indigenous students face for enrolling and staying in school are school lag, over age, absenteeism, and dropout, as well as «[…] other cultural, social and economic causes […]» where «[…] poverty is, undoubtedly, the key factor that explains abandonment of the classroom by girls ».101

The behavior analysis of the equity indicator between women and men (ratio women/men) in initial enrollment at the three education levels for 1996 to 2008, for the country and the rural and urban areas, allows to observe that the general trend has been a decrease in the gender gap in preprimary, primary, and lower secondary in the three geographic areas. In upper secondary, the change has been in the trend that the women proportion surpasses the men’s.102

Quality and pertinence

Some policy actions related to quality and pertinence are

summarized below: curricular transformation, intercultural bilingual education, teacher training and evaluation of academic achievement and learning assessment. In 1986, there was an important change in the conception of the curriculum of the education system, when the Mineduc prepared the document Education philosophy, policies, and strategies 1986-1990.103 This document postulated principles that support a person-based education, focused on the development of education processes that allow the students to have the learning experiences in a social and solidary environment. The system moved from a contents-based approach to another one focused on processes (cognitive, affective, social, linguistic, expressive, and psychomotor). In 1998, the Education reform design prepared by Copare104constituted a milestone in the history of the country. In the area of curricular transformation, the following strategies were included: establishment of fi nal profi les at the different levels and modalities; curricular revision; update of programs, texts, and materials; and articulation between Mineduc and the tertiary education institutions. CCRE and the Mineduc developed the curricular transformation general framework and published it in 2003. This instrument has been the basis for the design of the national basic curriculum (CNB, Spanish acronym) for each education level.

In the intercultural bilingual education (EBI, Spanish acronym) topic, Mineduc, with the support of the United States Agency for International Development (USAID), implemented the Bilingual Education Project with 40 pilot schools, 10 in each of the four biggest Mayan linguistic communities. The Bilingual Education National Program (Pronebi, Spanish acronym)


C 7

was established in 1985. In the 1986-1990 period, within the Recognition of the linguistic and cultural multiplicity policy, support to Pronebi and the promotion for establishing the Academy of Guatemala’s Mayan Languages (ALMG, Spanish acronym)105 were included as strategies.

In 1995, Pronebi becomes the General Directorate of Intercultural Bilingual Education (Digebi, Spanish acronym), with the purpose to «[…] develop social and stable bilinguism for the Maya-speaking student population and a harmonic coexistence among populations and cultures». In 1998, the Education reform design establishes multilingual literacy, intercultural and multicultural education for all, strengthening the identity of each linguistic population and community, additive multilinguism and other policies and strategies that contribute to the education system’s response to the Peace Accords106 commitments. Another important step was taken in 2003 with the establishment of the Intercultural Bilingual Education Vice Ministry.

According to Mineduc, EBI, as a State’s proposal, took on a gradualist delivery policy. In terms of languages, it began with territorial languages, continued with community, and then with special languages (in danger of extinction). In relationship to grades, in incomplete schools it only covers preprimary and in the complete ones, from preprimary through fi rst or third grade. Its institutionality was strengthening: from Project to National Program, to General Directorate, to Vice Ministry.107 However, the EBI’s gradualist approach stopped in third grade, and in almost 25 years, it has not advanced to complete primary nor continue to secondary school. Between 1995 and 2009, the percentage of students in EBI public schools increased from 4.7 to 15.4% of the students covered by the public sector. (See graphic 14)

Public sector teachers constitute most of the State’s bureaucracy. In fact, from 1988 to 2008, their number (between preprimary and primary) increased from 28,543 to 86,421.108 The training of this important resource is essential to improve the quality of education. Education reform design109 includes policies, strategies, and programs for teacher training, both pre-service and in-service, in the human resources area. During the 2000-2003 period some actions targeted at honoring the commitments of said Design, were taken, such as: a) implementation of a Human Resource Professional Development Program (PDP, Spanish acronym) and b) opening nine intercultural bilingual normal schools,

22 physical education schools, and four intercultural ones. In the 2004-2007 period, Mineduc, together with Usac, developed training sessions for in-service teachers. Those focused on language and mathematics because of the unsatisfactory results of the evaluation of senior students. Regarding pre-service teacher training, the attempt to transfer it to the university level was unsuccessful, thus the country is still behind Latin America. The alternative to expand the duration of the teacher training at the upper secondary level with a new CNB began in 2007, but it was reverted in 2008,

thus it remains of short time and fewer courses.

The assessment of academic achievement and learning began to gain strength since 1996. In 2005, the National System of Education Assessment and Investigation (Sineie, Spanish acronym) was established with the purpose of providing information to allow Mineduc to establish quality assurance actions. These efforts allowed nailing down census mandatory assessments of senior students. In 2007, Sineie became the General Directorate of Education Assessment and Investigation (Digeduca, Spanish acronym). As a result of the assessments performed, since 2006 it is possible to compare results throughout the years.

Decentralization and participation

During 1986-1990, there was a regionalization-based effort to revise the education structure and a school reform process.110 Eight education regions with their respective Regional Directorates were established; in several cases they coincided

Graphic 14 Primary students enrolled in public sector EBI schools (1995-2009)

Source: Digeplan, Mineduc data.See graphic 7.19 NHDR 2009/2010 (UNDP, 2010)

3,000,000

2,500,000

2,000,000

1,500,000

1,000,000

500,000

0

18.0

16.0

14.0

12.0

10.0

8.0

6.0

4.0

2.0

0.01995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

4.7 5.1 5.5 8.0

11.6 13

.1

13.5 14.0 15

.0

15.4

15.4

15.2

15.3

15.4

Public EBI students Public sector students % public EBI/public sector

15.4

105 Mineduc (1987).106 Education Reform Paritary Commission (1998).107 Mineduc (2005).108 Mineduc, Statistic yearbooks for cited years.109 Copare (1998).110 Galo de Lara, C.M. (1996).

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with the ones used by the Ministry of Agriculture, Livestock, and Food (Maga, Spanish acronym) and MSPAS. Education Department Directorates were created in 1996; they still operate. Community participation in education management as part of the decentralization process was enunciated since 1986. The policy Propitiate participation management in an integrated conception of the school and education communities included as a strategy the establishment of School Boards comprised of teachers, administrators, parents, and students.111 School Boards, as such, have stayed to date, but their integration, functions, and location within the Mineduc structure has changed.

2.3 Financing

Guatemala is the Central American country with the lowest public expenditure on education (1.7 to 2.6%) as percentage of GDP between 1995 and 2006. Execution of 75.0% of said expenditure corresponds to the Mineduc and the rest to other public institutions, including Usac. In nominal terms, the budget allocated and executed by said Ministry has been increasing in the 25 years analyzed. In the late 1990s, increases were established to allow complying with the expenditure goals established in the Peace Accords. In terms of the real budget accrued per capita, the increase during the period was not substantial.

A study performed in 1998 indicates that «[…] the roots of the lack of coverage problem and ineffi cient quality of education seem to be in the concentration of resources in the urban areas of the country and decision making centralization. The country has lacked a real policy for focusing expenditures in the poorest or more rural sectors».112 The expenditure increase tends to be bigger at the central level and in the administration line items than in the line items which effectively reach the target population of the education system: boys, girls, and youth.

Conclusions

In the period studied, the State has contributed to increase the coverage of health care, especially through PEC. While this service —object of debate in the sector— has come closer to rural communities, it is still not enough because it focuses on maternal-child population, provides limited medical care a few days a year, provides only some medicine free, and it is not delivered with linguistic and cultural pertinence. It is also highly dependent on voluntary staff. The public services network has increased in absolute numbers, but not at the

pace of population growth. In relative terms, the number of services per million inhabitants corresponding to the fi rst level of attention has increased, but the contrary has happened with the second and third levels. The public sector staff has increased, but more than half of the doctors have temporary contracts which do not favor their permanence. MSPAS fi nancing has also increased in absolute values, but not in relative terms (actual expenditure per capita) nor as percentage of GDP as expected as a result of the Peace Accords. Further, health private fi nancing has increased, and, within this, the biggest percentage has been on the homes, thus accentuating inequity. Commitments signed by the State in international and national instruments in terms of indigenous population health lag compliance. However, at the end of the current decade, Uaspiig is created within MSPAS, which, in alliance with other institutions such as the Presidential Commission against discrimination and racism against Indigenous Populations (Codisra, Spanish acronym), is expected to contribute to establishing horizontal relationships within the health system using the indigenous medical model.

111 Mineduc (1987).112 National Economic Investigations Center and Center for International Private Enterprise (Cien, Spanish acronym-Cipe, 1997).


C 8Chapter 8 The State, security, and justice

The Guatemalan State is organized with the intention of being a democratic, Rule of Law, State. This chapter examines how the State guarantees security and justice rights. There are two approaches to face this topic; they are different when the democracy exercise is lived. One, when the State acts as a power that recognizes and respects the rights of the community members; another one, when the citizen who claims those rights from society arises. This report is more interested in the fi rst point of view, i.e., the State that fulfi lls its function to provide security and justice and to receive the claims submitted by the citizens.

1. Security

1.1 Definitions of Security

Human security is defi ned as «the universal protection against violent or predatory crime».114 Citizen security is the main expression of human security. Human development is understood as the process to expand opportunities for people, it must be added that those opportunities or options must be accomplished in a secure and free environment.115

In facts of everyday life, there is really a production of insecurity experiences caused by the varied amount of relationships we do not control; they cause results whose cause we do not know. For this, it is important to distinguish between objective and subjective (in) security. The fi rst is the one that results from processes or situations pertaining to life; e.g., a person may become sick or may die, may eventually be hit because of his carelessness or the driver’s. The second one is the appraisal everyone does about the degree of risk to which one is exposed, depending on the type of society where he/she lives.116

1.2 Security, insecurity, and the State

Article 1 of the Political Constitution of the Republic of Guatemala sets forth «[…] that the State is organized to protect the person and the family»; article 2 states that it is the State’s duty to guarantee security and justice, among other aspects, to the inhabitants of the country. More specifi cally, it appoints who the authorities are and how meeting these goals is organized. Additionally, subsection 1 of article 6 of the International Covenant on Civil and Political Rights (ICCPR),4 states that «Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life». And ICCPR subsection 1 of article 9 promulgates the «right to personal freedom and security». Several ordinary laws develop practical aspects of the constitutional disposition. Even though it is about a judicial and political, universal fundament that creates order in a society, in Guatemala public power has not always fulfi lled said obligations.

1.3 Challenges posed by criminality

There is an evident growth of criminal acts in the country; the number of crimes increases; they expand throughout the country and the characteristics of excessive cruelty deepen. Various studies and reports, social media, and other actors of public life realize how crime has been eroding private and public social relationships, to become, together with poverty, the greatest threat to everyday life and society’s good operation. Crime violence produces insecurity and directly affects human development by reducing the possibilities of a dignifi ed and fulfi lling life.

113 UNDP (2009: 31) and Rosada Granados, H. (2009: 2-8). 114 UNDP (2004c: 26). 115 UNDP (2009a: 28). 116 Guatemala approved ICCPR through Decree 9-92 of the Congress of the Republic, on February 21 1992; it was adhered on May 1, 1992.

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69The State, security, and justice

Source: National Center of Judicial Analysis and Documentation (Cenadoj, Spanish acronym). See table 8.2 NHDR 2009/2010 (UNDP, 2010).

2008 2009* Total 2008 y 2009

Femicide 30 88 118

Violence against women 4,539 12,916 17,455

Economic Violence 103 267 370

Total 4,672 13,271 17,943

Table 14 Cases registered per crimes included in the Law against femicide and other forms of violence against women, D.o 22-2008 (number)

Graphic 15 Homicide rate per 100,000 inhabitants (1995-2009)

Source: homicides: National Civil Police (PNC, Spanish acronym); population: Statistics National Institute (INE). See graphic 8.1 NHDR 2009/2010 (UNDP, 2010).

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

50

45

40

35

30

25

20

15

10

5

0

3840

43

34

2628

3032

37 38

4447

4548 49

117 UNDP’s estimations based on Ball, P. et ál. data, vis-a-vis PNC data reproduced in this Report.118 For more information see Chapter VI of this Report.119 UNDP (2009a: 69). Central American average estimated based on Table 3.1 data, same page. 120 Law against femicide and other forms of violence against women. Congress of the Republic, National Guatemalan Revolutionary Union (URNG, Spanish acronym, 2005:

18) Party.121 Various sources, especially, Dudley, SS. (2010) and UNDP (2009a), especially chapter IV.122 A Department of State document assures that the armed confl ict created the conditions for illegal weapons and drugs traffi cking, for a wide contraband trade, money

laundering, and other illicit activities by public offi cers or ex offi cers. US Dep. of State, quoted by Dudley, SS. (2010: 3). 123 Lakshmann, I. (2005); Smyth, F. (2005).

Graphic 15 shows that in the 2007-2009 period, the number of violent deaths has ranked between rates of 45-49 homicides per 100,000 inhabitants. This doubles the annual average of victims during the armed confl ict.117 These numbers seem to hide a diffi cult truth: society is sunk in a new type of confl ict that disorganizes it: criminal mobs openly challenging the State. Homicide rate has been ascending118 and has reached levels that place Guatemala among the most violent countries of the world. In 2006, homicide rate for every 100,000 inhabitants was 9 in the world, 25 in Latin America, 31 in Central America, and 47 in Guatemala, surpassed only by El Salvador, with 65.119

1.4 Insecurity and violence against women

The insecurity situation for women in Guatemala is so big that it has even been recognized internationally. This increasing situation and the recognition of the problem led during the last decades to a debate over the need to identify women’s murders as a specifi c crime. Crime, however, had to be distinguished from the women’s homicide, by emphasizing the difference due to gender inequalities and its characteristics the murder implies. Finally, the categorization of femicide as a crime120 occurred in 2008, turning the associated Law into a tool that brings hope to the victims of violence against women and their families. According to this Law, femicide is the «[…] violent death of a woman, caused in the context of unequal relationships of power between men and women, as a result of exercising power against women». However, State

institutions do not yet have the tools to face the violence against women problem.

Table 14 compresses the information on the number of cases registered by the corresponding courts during 2008 and 2009 according to the classifi cation of said Law. A signifi cant increment in all crimes is evident —probably due to the early recognition of the Law’s existence and its application by prosecutors.

1.5 Narco-business and criminality

The criminal violence phenomenon cannot be understood outside the narco-activy problem. There has always been criminality and violence in Guatemala, but the cruelty and the extension of the crime nowadays are affected by the effects of illegal drug traffi cking.121 This began in Guatemala towards the late 1970s, coinciding with the bloodiest moment of the armed confl ict, when the control of society by the Army was almost total.122 This process has not stopped: in November 2005, offi cers of the United States Embassy to Guatemala told Associated Press and Reuters that 75.0% of the cocaine destined for the United States transited through Guatemala.123

Becoming a vital territory for illegal drug traffi cking has had devastating consequences, including the extension of criminal violence, illegal drugs consumption, and the erosion of public institutions.


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1.6 Some State actions in terms of security

Some State actions related to the National Security System, the National Agreement for advancing security and justice, the National Civil Police(PNC, Spanish acronym), and private security are addressed below.

With international and national background, the Framework Law of the National Security System (Decree 18-2008) was issued in 2008. Its purpose is to establish the organic and functional judicial norms needed by the State of Guatemala to coordinately perform interior, exterior, and intelligence security actions, so that in an integrated, systematized, effi cient, and effi cacious way the State be able to anticipate and properly respond to risks, threats, and vulnerabilities and be prepared to prevent, face, and offset them by observing the Political Constitution of the Republic, respecting human rights, and complying with international treaties ratifi ed by the country.124 The Law poses that the ultimate goal of the National Security System is to contribute to the nation’s security, persons’ protection, and public good, respect human rights, and comply with international treaties ratifi ed by the State.

In April 2009, the State established the National Agreement for advancing security and justice, which is the fi rst State agreement in this topic. The Agreement is proposed as a space to transform security and justice structures in Guatemala, visualizing them as an articulated total. Given the number of actions it includes, as an illustration following is a list of those that have been considered a priority as a result of a systematic analysis: a) guaranteeing the operations of the National Security System; b) police reform; c) establishing the Institute for Violence Victims’ Care and Protection; d) strengthening the administration of criminal justice; e) installing an effi cient correctional system; f ) effective control of weapons and ammunitions; g) registry, supervision, and control of private security and intelligence services; h) legislative agenda analysis in terms of security and justice; i) crime prevention policies local debate.125

PNC was established in 1997 with assistance from the Spanish Civil Guard and fi nancial international assistance. It initially had 3,000 members, who were unfortunately neither well selected nor trained. First this originated human rights violations conducts, and then corruption acts that degraded

its functions. Currently (2010) PNC has 19,902 agents, 17,902 male (89.0%) and 2,322 female (11.0%). It also has 1,217 inspectors, 1,004 offi cers, 93 sheriffs, and 7 directors, for a total of 22,223 persons. 84.0% are Ladino and 66.0% completed upper secondary school.126 The United Nations High Commissioner for Human Rights report on activities of said offi ce in Guatemala provides a recent appraisal on PNC, which includes the statement that the institution is not capable of providing an institutional response that corresponds to the signifi cant challenges derived from the highly alarming insecurity situation.

The 2009-2010 Central America Human Development Report estimates that in Guatemala the number of private agents totals 106,700, the highest fi gure in Central America.127 In this sense, the United Nations High Commissioner for Human Rights Offi ce (OCHR) stressed in its annual 2009 report that «[…] this implies that a large part of the public security role has been yielded, de facto, to private entities over which there is neither effective control nor an adequate legal framework to regulate their operations and to ensure their complementarity and subordination to civilian public security forces».128 According to the Human Rights Ombudsman’ Report to the Congress of the Republic, PNC’s registers are insuffi cient and only 10% of the registered companies are supervised. To amend this situation, Initiative 2846, Private Security and Investigation Services Law is being processed, although it has not advanced in the Congress of the Republic due to constant opposition for the last 10 years by entrepreneurs of this business and those linked to selling weapons and ammunitions.

1.7 Public expenditure in security

In the strict sense, it was not possible to identify expenditures in terms of security. The analysis of the Ministry of the Interior’s (Mingob, Spanish acronym), as a representative entity of the sector129, expenditure budget reveals that the 1985 expenditure was Q52 million; in 1996, when the armed confl ict ended, Q394 million; and in 2006 it totaled Q2015 million; i.e., the budget increased almost 40 times in nominal terms during this period. It is possible that expenditure in security has increased as a response to the increase in violent and serious crimes. Is this enough? It is possible to suppose that if the security expenditure is insuffi cient, the margin for crime actions is bigger.

124 Congress of the Republic, available in: http://www.congreso.gob.gt/archivos/decretos/2008/gtdcx18-2008.pdf125 See more details in Rosada, H. (2009).126 PNC (May 2010).127 UNDP (2009a: 240).128 United Nations High Commissioner for Human Rights report on activities of said offi ce in Guatemala (2009). A/HRC/13/26/Add.1, March 3, 2010.129 Minfi n, Analysis Department of the Budget Directorate and Development and Norms Unit.

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130 See Chapter I of this Report.131 This section is based on Monterroso, J. and Estrada, GA. (2009) work.132 Commission for Historical Clarifi cation (CEH, Spanish acronym, 1999, book III: 113).133 CEH, op. cit., p. 113.134 CEH, the Inter-Americana Court for Human Rights (IACrtHR), and the Human Rights Offi ce of the Archbishopric of Guatemala (Odhag, Spanish acronym) reports include

detailed information about this topic.135 The 1965 Constitution already established a court in charge of constitutional

2. Justice

2.1 Introductory considerations

In every society there are norms that organize constitutive aspects of social life; likewise, in every society there are those who break them. If they are not sanctioned, the whole society is placed in a prelude to a fatal slip, illegitimacy, which is not possible to avoid later. The State must administer justice as part of the order functions that defi ne it; those understood as the commitment the State has before society when established legality has been violated in its interior. In more operative terms, this is translated as the State’s function ( judicial branch) —through its specialized bureaucracy— to judge and establish the responsibility of the person or persons accused as perpetrator(s) of criminal acts, and determine the punishment contemplated by the law. This process ends when the convicted experiences the sanction, which may be jail or death. The judicial process, in this case, refers to criminal justice, since it should not be forgotten that there are other justice dimensions in society which will not be discussed here. Criminal justice entails a sanction, this is a sovereign power inherent to the nature of the State,130 which this performs through legitimate power monopoly, which the State has.

2.2 Justice system reforms 131

The Judiciary is probably the branch of the State which has experienced the most reform and modernization programs in the last 27 years; likewise, it is the one that has received more fi nancial resources, both from the annual expenditure Budget and from international assistance.

Executive Branch’s search for Independence (1985-1991)

In the early 1980s, the justice system in Guatemala was dependent mainly from the Executive Branch. Many times «[…] justice courts acted directly subordinated to the Executive Branch, applying legal norms or dispositions opposite to due process or omitting to apply the corresponding ones.»132 It was neither effective as a mechanism to protect human rights before power.133 Thus, arbitrary or illegal detentions lacking judicial control were common.134

In 1985, the justice system coverage was defi cient (2.63 judges per 100,000 inhabitants), especially in the rural area. Municipal mayors performed functions related to confl ict resolution and justice administration in minor cases. Judicial procedures were characterized by predominance of writing in all the phases of the procedure, delegating functions to Court offi cers and secretaries, and bureaucratic formalities for notifi cations and citations. Between 1985 and 1991, the return to democracy allowed beginning the justice system transformation process that was oriented to strengthen its independence, mainly from the Executive Branch. The most relevant actions were: a) modifi cation of the system to appoint magistrates: b) establishment of the Constitutional Court (CC, Spanish acronym);135 and c) issuance of the Appeal, Habeas Corpus, and Constitutionality Law.

The 1990s reforms (1992-1999)

Among others, the following advances of this period may be highlighted: a) the criminal procedure reform facilitated implementing the oral public trial as the central way to make decisions, as well as the division of functions to investigate, prosecute, and judge (functions attributed to the Police, Public Ministry, and the Judicial Branch, respectively). b) Reforms in terms of criminal policy, among them, the Criminal Code (in force since 1973), such as categorizing crimes against humanity (torture, forced disappearance, and genocide); narco-activity crimes; crimes against the tax regime; informatics crimes, and crimes against the environment. c) Creation of the Judicial Career. d) Reforms relative to gender issues: between 1995 and 1999, the Congress of the Republic amended the Civil Code with the purpose of guaranteeing equality of rights among men and women, mainly in family relationships. The Law to Prevent, Sanction, and Eradicate Domestic Violence was also issued.

Institutional strengthening (2000-2009)

The fi rst decade of the XXI century may be characterized as a period of deepening criminal procedural reform, growth, and consolidation of the established institutions, but also of crisis in the system as a whole, caused by the growing gap between the reform process expectations and the real results accomplished. Among the relevant changes, it is worth mentioning: approval in 2003 of the Integral Protection of Children and Adolescents Law and the establishment of


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136 Data provided by the Judicial Branch in 2009 and in MP (2008) Progress Report.137 Human Rights Council. Report by United Nations Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, mission to Guatemala, Document

ONU A/HRC/11/41/add.3, October 1, 2009, paragraph 96, p. 20. 138 Information provided by Cicig to this Report in July, 2010. See: http://www.cicig.org/uploads/documents/

specialized bodies and procedures, among them, Courts for Childhood and Adolescence Issues. The Childhood Prosecutor Offi ce was established. It has eight departmental and municipal branches, as well as fi ve Courts for Childhood and Adolescence issues.136 The establishment in 2006 of the Forensics Sciences National Institute (Inacif, Spanish acronym) may also be highlighted. Its purpose is to provide forensic medicine services and expert opinions on the evidence collected in a criminal investigation process; the approval of 22 reforms to the Criminal Code, seven special laws, and 46 new crimes, among them the categorization of the discrimination crime, amendments to sexual crimes, the Law against Organized Crime, and the categorization of money laundering and terrorism fi nancing as crimes.

2.3 Public expenditure

The Judicial Branch expenditure budget, both in relationship to gross domestic product (GDP) and in relationship to the Nation’s total expenditure budget, has increased from Q162.5 million in 1995 to Q2208.7 million in 2008; i.e., it has multiplied 13 times. Nevertheless, it is necessary to underscore that criminal justice effectiveness does not depend only on the allocated resources —even assuming they were enough—but also on the disposition of the group of State institutions to accomplish it.

2.4 Access to justice

Access to justice is not satisfi ed with the existence of a specifi c number of jurisdictional bodies; it is necessary that these provide effi cacious and permanent services, and that they be provided free or at a cost that does not turn them into a public good unreachable by vulnerable sectors of the population. That is why universal access by the population to the justice system is a right established in the Constitution, in human rights international treaties ratifi ed by Guatemala, the law, and the general norms of democratic life. To improve access to justice, there has been an important increase in the number of judges in the country in the last 24 years, from Peace Judges to Supreme Court magistrates; however, this number is still insuffi cient vis-à-vis the total national population.

On the other hand, access also includes linguistic and cultural pertinence. According to the United Nations Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, «One of the most serious diffi culties is the linguistic aspect. There are not coherent policies within the justice system institutions for training, hiring, and evaluating

interpreters or bilingual offi cers. Besides, there are diffi culties to fi nd interpreters for all the different dialects. This has consequences for the accused and for the victims. i.e., the guarantee to be informed on the charges against the person in a language he understands is not respected.»137

2.5 Justice Performance: some indicators

There are numerous social sciences specialists and authorities in charge of formulating development policies in Latin America who underscore the importance of reforming the judicial system vis-à-vis democratic governments strengthening. That preoccupation has existed in Guatemala since the same moment civil and democratic governments were established; that has also been of interest to the international cooperation community. The opinion about the importance of strengthening the State, and thus the Judicial Branch, is almost unanimous. It is necessary that justice be quick, effi cacious, and free. Some data about the performance of the system are presented below:

a) Criminal cases resolution: cases are considered resolved when there is an effective solution, they end with a sentence, whether conviction, acquittal, or judicially pending (conditional suspension of criminal prosecution). The case resolution rate between 1995 and 2008 has remained below 8.0%, except in 2000 and 2008, when it reached 14.0%. Between those two years, the system left more than one million cases unsolved. The resolution rate for this period was not statistically different than the 1995-1999 rate (6.55%).

On the other hand, between 2000 and 2008 the Public Ministry (MP, Spanish acronym) was four times more effective in prosecuting narco-activity crimes (36.9%) than tax crimes (10.1%) and crimes against the environment (11.6%). It was little effective in the case of violent crimes (6.0%) and sexual crimes (1.9%). In comparison to the 1992-1999 period, its effectiveness decreased in two cases and improved in one.

b) The right to legal protection of the arrested, tried, and sentenced: despite the changes and the staff and resources increase, there is a serious delay in the judging and sanctioning function, that inexcusable distance between those waiting under arrest and those waiting sentence proves that justice is dull. More than 50.0% are expecting trial.138

2.6 Indigenous law and judicial pluralism

Judicial pluralism in Guatemala is based on article 66 of the Constitution of the Republic and on Aidpi. Convention 169

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Source: JB, Annual report. Cited in Monterroso (2010). See table 8.8 NHDR 2009/2010 (UNDP, 2010).

Number of judges 2006 inhabitants (in thousands)

Rate judge per 1,000

inhabitants(2009)

Percentage indigenous

population (2006)

Maya speaking (2010)

Department 1985 1996 2009

Guatemala 99 103 217 2,975.4 0.07 10.9 3

Alta Verapaz 8 14 23 914.4 0.03 88.9 7

Baja Verapaz 2 8 23 245.8 0.09 65.1 5

Chimaltenango 3 16 24 519.7 0.05 74.9 4

Chiquimula 5 10 21 342.7 0.06 13.0 0

El Progreso 2 10 21 150.8 0.14 0.7 1

Escuintla 9 20 26 610.7 0.04 6.6 0

Huehuetenango 3 20 44 986.2 0.04 58.1 2

Izabal 7 7 10 364.9 0.03 26.0 2

Jalapa 3 8 14 279.2 0.05 1.9 1

Jutiapa 3 21 24 426.5 0.06 15.2 0

Petén 5 8 22 441.8 0.05 21.5 0

Quetzaltenango 8 29 50 735.2 0.07 43.6 3

Quiché 4 23 31 769.4 0.04 89.7 9

Retalhuleu 4 8 15 273.3 0.05 19.7 2

Sololá 1 3 8* 361.2 0.02 94.1 15

Sacatepéquez 2 10 24 278.1 0.09 31.9 2

San Marcos 7 27 11 905.1 0.01 35.5 0

Santa Rosa 5 11 21 332.7 0.06 1.0 0

Suchitepéquez 4 20 31 464.3 0.07 37.5 1

Totonicapán 2 5 14 395.3 0.04 96.7 9

Zacapa 2 9 18 215.1 0.08 0.3 0

Total 188 390 684 12987.8 0.05 38.4 66

Table 15 Number of judges (1985, 1996, 2009) and Maya speaking judges (2010) by department

concerning Indigenous and Tribal Peoples in Independent Countries of the International Labour Organization (ILO)139 proposes specifi c approaches in articles eight and nine. The United Nations Declaration on the Rights of Indigenous Peoples, ratifi ed by the State of Guatemala in the United Nations Assembly of September 13, 2007, says that indigenous populations have the right to promote, develop, and maintain their judicial systems according to international human rights norms.

The debate on indigenous law covers various topics. One is related to the way to name it and conceive it. Indigenous movements and organizations claim the terms ‘indigenous law’ and ‘indigenous populations’ judicial system” to emphasize an equality treatment and promote judicial pluralism. Another one refers to the effects generated by the recognition of the multi ethnic character of a society; it is the existence of collective rights, together with individual rights.

Individual rights are based on the equality presumption; collective rights, on recognizing the differences. As stated in Chapter X, Guatemala has made little progress in complying with Convention 169. It is still needed to walk a path where collective rights are not seen as contrary to the spirit of individual rights, but as complementary.

Special Rapporteur on the independence of judges and lawyers expressed: «In so far as judicial pluralism, despite some progress, it is still far from applying what is established in Convention No. 169 of the International Labour Organization and article 66 of the Constitution […]».140 Also, he said that «[…] retrieve the recommendation of the Offi ce in Guatemala of the United Nations High Commissioner on Human Rights, in the sense that justice system institutions develop jointly with indigenous populations, a policy to access justice for the indigenous populations that incorporates geographic, linguistic, and cultural pertinence aspects, which in turn, has

139 According to the Political Constitution of the Republic, Convention 169 is higher than the internal judicial order because it is an international instrument in terms of human rights. That has been the resolution of the Constitutionality Court in Consultative Opinion of May 18, 1995.

140 Human Rights Council. Report by United Nations Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, mission to Guatemala,ONU A/HRC/11/41/add.3, October 1, 2009, paragraph 98, p. 20.


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as objective a progressive incorporation of indigenous law into the national judicial system. At this point, it is important to highlight that said incorporation should be compatible with human rights protection international norms. Integrating the indigenous law is a priority topic, since this may act as a complement to the offi cial judicial system, consolidating itself as an additional mechanism to fi ght impunity».141

Conclusions

The information presented is an additional proof of the nature of the current Guatemalan State. It has been called a weak power because it does not adequately satisfy the security and justice functions. Without judicial protection and subjective security, personal existence is perverted; the trust in every dimension of the public aspect and in interpersonal relationships is lost. The country urgently needs that the national security and justice system works effi ciently and effi caciously, that laws issued in that topic are enforced, and that there is progress in judicial pluralism.

Box 4 Indigenous populations’ judicial system and judicial pluralism

The judicial system of indigenous populations, «[…] like other judicial systems, including the western system, has as main function regulating social relationships through norms based on philosophical principles and ethical and moral values which are typical of the culture. As any judicial system, it has a normative order, sanctions […],and authorities with the power to issue and amend norms, impose sanctions, and censor the behavior of those who do not act according to the established norms. It also has procedures to judge.»

Beyond the coexistence of two or more judicial systems, judicial pluralism must be the State’s answer to multicultural reality and to judicial diversity through «[…] recongnition and inclusion of indigenous populations’ judicial system into the legal structure of the State, and therefore in the General Budget of Income and Expenditure of the State.»

Source: Asíes (2010: 9).

141 Ibíd., paragraph 123, pp. 24 and 25.

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75The role of the State in democracy promotion

Chapter 9The role of the State in democracy promotion

This chapter refers to democracy and to the ways States promotes it through two fundamental mechanisms: electoral and political parties system and the Urban and Rural Development Councils. The fi rst one is essential for representative democracy and is based on power delegation through elections and procedures democracy uses to accomplish it; the second one refers to a participatory modality created in Guatemala, whose main objective is to facilitate local development decision making.

This chapter begins with the defi nition of agency and its relationship with the persons’ right to participate in making decisions about issues that affect them, an important topic to promote political equity. Then, it summarizes agreed upon political transition which begins with the fi rst democratic government and ends with the signature of the Peace Accords. It continues with the description of the electoral and political parties system and ends explaining the Urban and Rural Development Councils System (SCDUR, Spanish acronym) and its importance to promote political participation and direct democracy.

1. Agency is a capability that avoids political inequity

Agency, in the human development language, is the term used to designate the capability every person has to act and participate in making decisions that affect his/her life; therefore, it is closely related to the search for political equity. Only persons with this acquired capability (which in some sense is the synthesis of many others) may fi nally commit to collective objectives and accomplish their goals. However, the exercise of choosing the freedoms and the possibility to exercise them depends on social relationships;

that means that the agency is relational: it does not exist in emptiness, but it is exercised in a social world where decisions about resources and opportunities are not merely individual elections. Persons with agency may have the capacity to question norms or confront the inequitable distribution of resources and claim respect for their rights.142

A citizenry with capability equality for decision making is a citizenry that acts with freedom. Therefore, increasing the human development levels, but, above all, enabling persons’ capacities, would improve decision making in benefi t of collectivity. The role of the State is necessary in promoting this exercise, as well as in establishing democratic participation channels where persons may exercise their agency through their participation in debates, as well as in making decisions that concern them in benefi t of collectivity. The true exercise of agency may modify the structure of the State.

2. An agreed political transition

An agreed political transition begins in a fi rst moment in 1986 when the fi rst democratically-elected government takes offi ce; it ends in 1996 with the signature of the Peace Accords. Democracy happened in parallel to the internal armed confl ict, «free», periodic, and transparent elections coexisting with counter-insurgence policies and approaches in the peace negotiations. It complements itself in a second moment that begins with the signature of the Peace Accords and its —still unfi nished— implementation. This extends to the present time with characteristics inherent to a post-armed confl ict society, with its ideal model of democracy under construction and with great diffi culties resulting from an authoritarian culture which has not transformed itself as the new institutionality demands.

142 Cleaver, F. (2007: 230).


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Dahl143 has pointed that for a true representative democracy to exist, there must be at least eight guarantees: a) freedom to form and participate in organizations; b) freedom of expression; c) right to vote; d) right to run for elective offi ce; e) the right to compete for the vote; f ) alternative sources of information; g) free and fair elections, and h) that institutions, to establish government politics, depend on the citizens’ vote or preference.

3. Basic characteristics of the electoral and political parties system

The main mechanism democracy has to reach that the people govern themselves is the electoral system. Through this, democracy «rules of the game» are known; electoral circumscriptions, representation methods (simple and proportional majority, among others); the voting limits are defi ned and the exercise of civil and political rights is assured to the groups organized into political parties and civic committees. Its governing body, in Guatemala’s case, is the Electoral Supreme Tribune (TSE, Spanish acronym).

3.1 The Electoral Supreme Tribune, electoral participation, and abstention

Despite the political history of the country, elections nowadays have high levels of legitimacy. Seven general elections, 10 municipal authorities’ elections, and two national referendums to amend the Constitution have been organized in the democratic era. All of them have been organized by the TSE, with better results each time in terms of technology, quickness, and data management transparency. TSE’s budget has increased in current quetzales and it has remained between 0.3 and 0.4% of the gross domestic product (GDP) between 2000 and 2009. The specifi c budget for general elections has also increased from 0.06 to 0.14% of GDP between 1985 and 2007. This has allowed improvements to the citizen’s access to Electoral Boards, among others.

In terms of trust on this body, in a few times —though not never— it has been in trouble due to fraud accusations. Multiple national and international election observation missions have attested to transparency and diligence of the results. Despite this, it is necessary to recognize that there are still multiple challenges to face, among them electoral confl icts at the municipal level.

Electoral abstention is a common phenomenon for the democratic system in general, but it weakens the system given that its strength rests in citizenry participation. One topic stands out when analyzing the voting trend in the second electoral presidential rounds: participation is signifi cantly

minor. Let’s remember that the fi rst electoral round elects also municipal boards and congressmen (national list and district); identifi cation of the citizenry with these authorities is much closer to the local aspect which might be one of the explanations of the phenomenon.

When analyzing the results of the 2007 elections, we fi nd that there is a trend: participation in the second electoral round is more urban and from citizens with more number of years of formal education. The trend shows more participation in second rounds of municipalities with bigger proportion of urban population and with more education.

3.2 Access by voters to polls

One of the most reiterated causes to explain absenteeism has been the diffi culty to access polls, the geographic and cultural distance for numerous human groups, the physical and economic effort, and having to travel in order to vote. Nevertheless, in the democratic age the closeness of polls to voters has improved. With the purpose of getting the electoral processes closer to the people and facilitating the vote, prior to the 2003 elections, the Citizen Registry established the process to «update» residency information, and with that, access to polls was possible for those who followed the procedure: every «updated» citizen may vote in the place closest to his registered residency. A second progress may be observed in the location of the Electoral Boards ( JRV, Spanish acronym): before the democratic era, voting centers were located only in municipalities with better access, which as we know, were only a few; then in all the municipal capitals and in some of the localities designated by the TSE. Now the TSE has the mandate to establish one JRV

Graphic 16 Participation percentage in elections (1985-2007)

Source: TSE. See graphic 9.6 NHDR 2009/2010 (UNDP, 2010).

80

70

60

50

40

30

20

10

0

1985 1990 1995 1999 2003 2007

69.3

65.4

56.4

45.3

46.8

36.9

53.8

40.4

58.5

47.2

60.4

48.2

% 1st. round participation % 2nd. round participation

143 Dahl, R. (1999).

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144 See Funcede (2004) and Mack, L. (2006) for important discoveries on the local dynamics.

per 600 citizens. In 2007 the expansion of the JRV coverage, as a result of the amendment to the Electoral and Political Parties Law (LEPP, Spanish acronym), was evident especially in Alta Verapaz municipalities.

3.3 Delegation of citizen power to political organizations

Every time there is an election, citizens go to the polls and submit their electoral preferences through the vote. Through formulas more or less complex, ballots become seats in Congress, members of municipal boards, president or vice-president of the Republic. In the case of Guatemala these persons do not run for offi ce in their personal capacity, they represent a political organization or coalition of organizations. These organizations are the vehicle to come to power, but also to fulfi ll the function of representing citizen power which has been delegated to them by political parties and electoral civic committees.

The Guatemalan electoral system was designed to allow participation and representation of various political organizations; it is based on a political pluralism idea, on a representation of multiple interests that was not complete until the ex-guerrilla was allowed —with the Peace Accords— to participate within the ideological expectrum. This ideally conceived political pluralism has become in practice a gigantic multiparty, with high levels of electoral volatility and with an ideological spectrum defi ned more by the capacity to fi nance campaigns than by the programmatic electoral support.

During the fi rst period of democracy in Guatemala, the number of political parties participating in the elections increased from 10 in 1984 (election of the National Constituent Assembly) to 23 in 1995. During the 1985 – 2007 period, around 58 political parties were created. Of these, only the Guatemalan Christian Democracy (DCG, Spanish acronym, active since 1966) stayed through the 2007 elections, participating in six of seven electoral events of the democratic era.

This high electoral volatility brings important consequences in terms of political parties institutionalization, which has been investigated by academic institutions such as the Investigation and Social Studies Association (Asíes, Spanish acronym) and the Latin American School of Social Sciences (Flacso, Spanish acronym /Guatemala). Ephemeral political parties cannot institutionalize … and the permanence of little institutionalized political parties is diffi cult. If these are the ones called to represent citizenry and it is impossible for them to do so —among other things, because they are

ephemeral— democracy is incomplete. For that, the topic of institutional strengthening has been subject of multiple debates and object of various reform proposals to improve the parties, although the idea that what is necessary is to also change the political practices of their leaders is not left out.

3.4 Political parties financing

The topic of political parties fi nancing is fundamental to address the institutional design of democracy. If a Strong State is needed, it is necessary to invest on it. Political representation institutions are not the exception. Parties fi nancing is classifi ed in: public, private, and mixed fi nancing.

Political parties’ public fi nancing is important because it promotes: a) equity and plurality in the participation among the different electoral forces and b) that there are not privileges based on the market dynamics, i.e., big capitals practically appoint a candidate or that political parties be fi nanced by illicit sources.

Private fi nancing may vary, from contributions by the affi liates or their leaders, direct fi nancing, to electoral campaigns or specifi c activities, and in-kind fi nancing: transportation, promotional materials, use of media, etc. The TSE began its control function of private funds starting with the 2007 elections —as a mandate of the LEPP amendment. The new regulation forecasts a better management of private funds, but it does not necessarily ensure it.

3.5 Electoral civic committees

One of the particular dynamics of the local aspect created by the State144 is the electoral civic committees: legal and legitimate institutions to access municipal boards’ power. These institutions are established in the LEPP as local organization alternatives to the political parties. They cannot opt to other positions but to the municipal ones. They organize themselves only for the election period; they do not receive State fi nancing and they do not have legal personality beyond the election in which they participate.

Since the 1985 elections, 962 electoral civic committees (CCE, Spanish acronym) have been established in the country. From 1985 to 2003, the trend was the increase of these political organizations in every election; even though in 2007 the number of CCEs that participated in the elections signifi cantly decreased. The municipalities that have organized more civic committees are Chimaltenango, Patzún, Quetzaltenango, and Salcajá. In 81 municipalities not a single CCE has been


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Graphic 17 Total number of civic committees per selected election and number of mayorships assigned to these organizations

Source: prepared by UNDP based on Usac and TSE data.See graphic 9.13 NHDR 2009/2010 (UNDP, 2010).

200

150

100

50

0

1985 1990 1995 1999 2003 2007

50

7

86

8

158

21

169

26

186

27

147

18

CCE Mayors

145 The argument was based on that articles pertaining to Local Councils violated municipal autonomy. The Ministry of Development was losing functionality during the

following Governments, as was fi nally suppressed in 1995, during the interim government of Ramiro de León Carpio. It was substituted by the Executive Coordination Secretarial of the Presidency (SCEP, Spanish acronym), to which system direction functions were transferred.

146 Art. 2, LCDUR Bylaw, Government Decree 461-2002.147 Castillo, D. (2006).

created in the 1985-2007 period. The average is 2.9 civic committees per municipality. Graphic 17 shows the number of mayorships assigned to a CCE.

4. Urban and Rural Development Councils System (SCDUR, Spanish acronym)

SCDUR is public institutionality par excellence that promotes political participation and direct democracy. It entails that persons articulate from their localities in an exercise of participation and agency making decisions that affect their communities’ development. It is a coordination system between public and private institutions for formulating development-oriented policies at all levels of the political and administrative organization of the country. It is based on the 1985 Political Constitution, where the mandate that forces the State to promote national and regional development, political, administrative, fi nancial, and economic decentralization, and communities’ participation in executing health programs is set forth. SCDUR is supported by the Urban and Rural Development Councils Law (LCDUR, Spanish acronym, Decree 52-87).

4.1 First period, implementation (1987-2002)

In May 1988, the local development councils were adjourned by the Constitutionality Court (CC, Spanish acronym), as a result of an unconstitutionality appeal submitted by president Jorge Serrano Elías,145 but their partial reactivation —at the intermediate level— took place with the establishment of the Solidarity Fund for Community Development (FSDC, Spanish

acronym) in 1993. However, the reactivation was neither uniform nor integral, but only for some strategic department councils in productive function and those related to confl ict zones. The councils did not operate as deliberation and decision entities; habitually they were limited to receiving processes from the local, department, and national authorities, according to their scope.

Citizen participation as public policy had an important impulse with the Peace Accords, which brought a general political framework of support to the decentralization and participation process in terms of development planning. Some of the commitments derived from these instruments became a reality in 2002, when the Congress approved amending the Municipal Code, issued the Decentralization General Law, and amended the LCDUR. The new legislation defi nes SCDUR as «[…] the space of relationship and multi ethnic, multilingual, and pluricultural citizen encounter that allows all the inhabitants of the country their propositional participation in decision making for organizing, coordinating, and planning the integral development of their communities, municipalities, departments, regions, and the nation».146 Their nature is being the principal means of indigenous and non-indigenous populations’ participation in public management to perform the democratic planning process of development, taking into account national unity principles, especially the multi ethnic, multilingual, and pluricultural character of the Guatemalan nation.

4.2 Second period, SCDUR establishment

At the beginning there were diffi culties in establishing the SCDUR, especially at the community level because this was inexistent. In the fi rst year (from April 2002 to May 2003) 2,802 Community Development Councils had been established (Cocode, Spanish acronym) and 126 Municipal Development Councils (Comude, Spanish acronym). In late 2006, the superior levels of SCDUR were fully established; this is the whole National Development Council (Conade, Spanish acronym) according to the legal framework; the eight Regional Development Councils (Corede, Spanish acronym), and the 22 Department Development Councils (Codede), with government and non-government accreditation. Likewise, 286 Comude had been established, 74.0% of 332 municipalities and 12,819 Cocode, which represented approximately 48.0% of organized urban and rural communities vis-a-vis 23,000 existing communities.147 In relationship to the Comude, 84.0%, taking into account the 333 municipalities, had been established by November 2009, (Graphic 18).

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Graphic 18 Evolution of the conformation level of Comude per region

Source: SCEP (May 2003 and november 2009).See graphic 9.14 NHDR 2009/2010 (UNDP, 2010).

2003

64.7

100.0

80.0

60.0

40.0

20.0

0

58.3

96.0

58.8

79.4

52.6

92.180.0

37.8 34.3

86.3

28.8

79.2

25.0

83.3

Region I Region II Region III Region IV Region V Region VI Region VII Region VIII

2009

148 Interview with Daniel Saquec, UNDP, Monday, August 16, 2010.

4.3 SCDUR Performance

According to qualitative data collected among SCDUR members during November and December 2009, it may be concluded that the councils’ establishment does not necessarily mean they are working, or that their operation is adequate according to the Law, or that they were established based on democratic processes. The integration of the councils has had diverse irregularities, diffi culties, and incongruences since the fi rst year. It was found that the presence of government’s institutions at the intermediate level is increasing. This sometimes generates imposition of government decisions on the civil society represented in the councils.

It is necessary to refl ect about the capacity persons have to participate in making decisions that affect them and thus exercise their own individual agency as persons, but also collectively as a society. In general, the integration of the Cocode has had restrictions because of the authoritarian and patriarchal predominating culture, plus the internal divisions of the communities, the absence of citizen participation experience, fear to participate, and mistrust towards institutions. Even though positive experiences exist, a constant work is still needed in favor of strengthening the political culture and equitable distribution of the capabilities to encourage participation with agency.

4.4 SCDUR Financing and Human Development

In principle, the SCDUR is oriented to generate development, by this, it is understood it should revert on historical inequalities between rural and urban areas; invest on the capabilities of the persons, if a human development approach is to be applied. One would hope, therefore, that there is a positive relationship between the general criteria which the

legislation establishes for public investment and the allocation of resources to the departments. However, some studies point that far from taking into account realities such as poverty and inequality, public investment seems to be contributing to a certain degree to increasing said gaps. Public investment has tended to focus on the departments with the lowest levels of poverty, urban areas of the municipalities, and infrastructure works. Indeed, a great unbalance between programmed investment and levels of extreme poverty of the departments (Graphic 19) exists. With the exception of the department of Guatemala, all the departments have investment levels inferior to their levels of extreme poverty, only in the Sacatepéquez department there is a greater balance between these two variables.

4.5 SCDUR and its relationship with indigenous populations

Participatory democracy, on which the SCDUR is based, intends to build, at least, the level of the Cocode as a community way of participation in decision making in terms of the development that affects persons’ lives. In its next levels, the inclusion form is ensured through shares in the interior of the Councils, or through external fi gures such as Indigenous Councils. The intention that indigenous populations be included within the different levels of the systems seems to be a positive step towards meeting some Maya leaders’ demands. However, «[…] in practice, many of these representatives established in the Law are absent or in reality they do not participate as such … yes they are indigenous, but their thinking is not consistent with the thinking of the population they represent».148

At the Comude level, presence of indigenous populations’ representatives through community mayors, indigenous organizations, and NGOs is usually observed. However, at the department, regional, and national level, there is not an effective indigenous populations’ participation; their decisions regarding important development topics, i.e., citizen or community consultations regarding mining exploration and exploitation or hydric resources, even though these are characterized in the Municipal Code, in Convention 169 of ILO, and in the LCDUR, are not taken into account. As in the case of women, there is a problem of indigenous populations’ representation of interests and demands.

In many communities, the establishment of the Indigenous Advisory Councils (stipulated by the Law in article 23 to provide advisory assistance to the coordination bodies and to the Comude) has created parallelism, confl icts, and tensions with traditional existing organizations, which generally function as


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Graphic 19 Extreme poverty and public investment through the Codede

% Population in extreme poverty 2006 % Programed investment

Source: 2006 Encovi and Minfi n (2009). See graphic 9.18 NHDR 2009/2010 (UNDP, 2010).

Quich

é

Quet

zalte

nana

go

Solo

lá

Guat

emala

Peté

n

Zaca

pa

Jutia

pa

Chiq

uim

ula

Sant

a Ro

sa

Alta

Ver

apaz

San

Mar

cos

Escu

intla

Jala

pa

Izaba

l

Toto

nica

pán

Reta

lhul

eu

El P

rogr

eso

Saca

tepé

quez

Chim

alten

ango

Hueh

eten

ango

Such

itepé

quez

Baja

Vera

paz

50

45

40

35

30

25

20

15

10

5

0

20

18

16

14

12

10

8

6

4

2

0

advisors to community mayors and as intermediaries before the Comude and the Municipal Council.

The SCDUR has internal coordination fl aws and does not seem to be respectful of the indigenous populations’ development conceptions, since it imposes policies, programs, and projects without having had a previous consultation, as stipulated by article 26 of LCDUR, the United Nations Declaration of the Indigenous Populations Rights (2007), or the Aidpi. Its critics complain about this: that the development vision in the Councils is infrastructural and has little to do with development attached to life and the indigenous populations’ conception of themselves.

Conclusions

Representative democracy rests on the delegation of power idea, but this delegation must, in the same manner, rest on the capacity of persons to decide upon it, know it, and control it, which cannot be accomplished in inequality conditions of access to development opportunities.

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81El Estado como promotor de la equidad

Chapter 10The State as Promoter of Equity

This chapter intends to answer the questions: What has been the role of the State in the reduction of historical and structural inequalities of Guatemalan society, in particular those related to the socio-economic (poverty) level, ethnic pertinence (indigenous populations), and gender condition (women)? Has the State channeled efforts to elaborate, implement, institutionalize, and fi nance equity public policies? In the period studied, how have poverty and inequality indicators varied? Have inequalities decreased at the human development levels? The fi rst part poses the challenges faced in the topic of poverty from its conceptualization, normative, policies, and developed strategies. This analysis is complemented with a short description of the evolution of the main poverty indicators. The inequality situation in the country, particularly the one that affects indigenous populations and women is characterized in the second part.

1. Poverty reduction policies

1.1 Poverty, a multidimensional concept

The concept of poverty is used since ancient times to denote lacks, insuffi ciency, scarcity, etc. The attempts to describe the poverty phenomenon arise with social sciences, in particular, sociology and economy. A qualitative study of poverty performed in Guatemala149 was based on the perception poor people have of what it means to be poor: not to have money to eat, not to have land nor to own housing and having to beg. The poverty drama collected with the qualitative analysis is summarized by a Mam woman: «We do not have land nor suffi cient food for everyone, we are sick to our souls and bodies because of suffering ».

In developed countries, where basic needs (food, housing, health, and education) are met for most of the population,

relative approaches are used for defi ning poverty thresholds. A person is poor if his income or consumption (or another measure or group of approximate measures of wellbeing) disperses in a certain measure of the average or median of the population.150

In «developing» countries such as Guatemala, where important privations exist in basic elements for survival, it is necessary to adopt absolute approaches to identify the poor. In this case, poverty thresholds are established according to a normative value in the adopted measure, which guarantees a minimum amount of resources for survival or for a minimum standard of living. A group of basic unmet needs (NBI, Spanish acronym) have been used in Guatemala as approximate measures, i.e., family income or consumption. Most of the diagnoses are based on these measures as absolute thresholds.

While a general recognition exists that poverty is a multidimensional phenomenon and that it has multiple relationships with other wellbeing factors, agreements on which dimensions are important and what «weight» they should have on the aggregation do not exist. Nevertheless, in some countries, multidimensional poverty measures have been applied. Such is the case of the measurement proposed by Alkire and Foster (2008), which combines poverty identifi cation—in different dimensions—151 with the aggregation used in the poverty line methods.

1.2 Economic growth and poverty reduction

It seems redundant to say that the objective of poverty reduction policies and strategies is to reduce poverty. However, objectives which may be complementary or subordinate in relation to this central objective underlie. This is evident when the instruments or programs designed

149 Von Hoegen and Palma (1999).150 See Ray (1998), UN (2010a), Foster, et ál. (1984).151 The ones that have been applied correspond to NBI, such as quality of housing, education, ability to generate income, etc.


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Graphic 20 Proportion of persons with less than one dollar a day (*)

Source: based on Surveys of homes and Segeplan data (2006). (*) 1USD PPA. See graphic 10.3 NHDR 2009/2010 (UNDP, 2010).

1989, 20.82004, 21.5

2000, 15.9

2010, ¿?

GOAL: 2015, 10.4

Popu

latio

n %

25.0

20.0

15.0

10.0

5.01985 1990 1995 2000 2005 2010 2015 2020

152 See Paes de Barros, et ál. (2005).153 This total has been revised, currently it is considered the international line of poverty in US$ 1.25, at adjusted prices, United Nations (2010b: 6).154 Segeplan (2006).

to implement the policy in various Latin America counties are analyzed.

Empirical evidence derived from the experience of two decades of poverty reduction strategies and programs in the region is not clear about direct linkages between growth and poverty. On the other hand, the defi nition of poverty used for its measurement necessarily implies the consideration of income or consumption distribution inequality. In any of the two cases, it can be shown that the incidence of poverty is determined by the growth of the income or consumption average, by the value of the poverty line (associated frequently to the value of a basic food basket or of goods and services) and by the degree of inequality in income or consumption distribution.152 In other words, for growth to have an impact on poverty reduction, it has to be accompanied by redistributive policies so that said growth reaches disadvantaged populations. In addition to economic growth, it is necessary to reduce inequality to be able to reduce poverty.

1.3 Poverty normative framework

The Political Constitution of the Republic of Guatemala constitutes the primary legal framework which rules the application of policies in benefi t of the most vulnerable sectors of the population. Articles 1 and 2 state that the State ensures the realization of the common good, in benefi t of persons and their integral development. As can be inferred, it is about concepts very close to human development, which propose to improve human lives expanding the range of things people may be and may do. Article 119 is clearer on the role of the State in benefi t of the integral wellbeing of families. This normative framework enriched with the signature of the Peace Accords in 1996, which clearly address the topic of combatting poverty and inequity.

In the international environment, in September 2000 the United Nations approved the Millennium Declaration, committing their country members to a new alliance to reduce levels of extreme poverty and establishing a series of short-term objectives known as the Millennium Development Goals (MDGs) whose expiration is set for year 2015. The fi rst objective consists in «eradicating extreme poverty and hunger», for which a series of specifi c measures was proposed, such as «halve the proportion of people whose income is less than one dollar a day».153 Graphic 20 shows the behavior of the indicator for Guatemala.

1.4 Poverty approaches, policies, and strategies applied since 1986

Guatemala’s history is not far from the Latin American experience. Many times the economic objective subordinates to the social policy, and, in particular, to the poverty reduction policy, with some particularities such as the conditional cash transfers program (TEC, Spanish acronym).

The approach of a specifi c poverty reduction policy, which was embodied as part of the poverty reduction strategy (ERP, Spanish acronym) followed in various countries at the suggestion of the World Bank (WB) and the International Monetary Fund (IMF), was possible because of an important progress in information collection and systematization through the National Survey of Income and Family Expenditures (Enig fam, Spanish acronym) in 1989 and the Survey on living conditions (Encovi, Spanish acronym 2000). This effort was consolidated by the XI National population and VI housing census of 2002, with the new design of the sample framework and the performance of Encovi 2006. The poverty maps were estimated using the mentioned methodology but with Encovi 2000 and the 2002 Census information, with more precise results, which additionally included poverty maps using the NBI criterion (see fi gure 15).154

1.5 Poverty evolution in the last decades

The different poverty measurements evidence scarce changes between 1989 and 2006. Considering poverty measured through family consumption per capita, there was a percentage reduction of eight points in the case of

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Graphic 21 Poverty evolution in indigenous and non- indigenous populations (1989 and 2006)

Source: prepared by UNDP based on ENS 1989 and Encovi 2006 data.See graphic 10.4 NHDR 2009/2010 (UNDP, 2010).

Millions Millions%%

1989 1989 1989 19892006 2006 2006 2006

País, 6.6

País, 51%País, 15%

País, 2.0

Ind, 3.9

Ind, 73%Ind, 26%

Ind, 1.4

N-In., 2.7

N-In., 36%

N-In., 7% N-In., 0.6

5.488%

32%

1.6

1.1

0.5

63%

18%

47%

9%

2.9

2.5

Extreme poverty Total poverty

Figure 15 Municipalities according to poverty and extreme poverty (2002)

Source: based on Segeplan data (2006).See fi gure 10.1 NHDR 2009/2010 (UNDP, 2010).

% population

0 - 10

11 - 25

26 - 65

Extreme poverty

% population

6 - 50

51 - 75

76 - 98

Poverty

155 See UNDP (2008a).

total poverty, and three points in extreme poverty. When comparing 1989 to 2006, an increase in absolute terms may be observed when going from 5.4 to 6.6 million poor; as well as from 1.6 to 2.0 million people in extreme poverty. In relative terms, general poverty has transited from 62.8% in 1989, to 50.9% in 2006, whereas extreme poverty has gone from 18.1 to 15.2%. Poverty affects to a much greater degree indigenous populations, of which 73.0% was poor and 26.0% was extremely poor in the last measurement.

There are also wide differences in terms of poverty levels within the indigenous population. 85.0% of the q’eqchi’ population is poor and 46.0% is extremely poor. Unfortunately, the reference survey does not allow describing the poverty levels of other less numerous groups, where there have recently been important food problems. Poverty continues to be more signifi cant in rural areas where almost three quarts of the population live in poverty, while one fourth lives in extreme poverty.

1.6 Some reflections on ERP

Specifi c policies on poverty are recent in the economic and social history of Guatemala. It is from the social adverse results derived from the implementation of the Washington Consensus measures that international organizations and States express their preoccupation for the increase and the

magnitude of poverty in Latin America.

Despite the non-negligible advances in poverty reduction, it has to be considered that the main effort and impact seems to come from the survival mechanisms used by homes to improve their situation. According to World Bank studies (2008), approximately half of the poverty reduction in Guatemala may be explained by remittances from abroad and from the interior of the country.155

Before the State policy to reduce poverty and the modalities or strategies followed by each Government, it is pertinent to


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ask: Would there be greater and deeper poverty if poverty reduction strategies would have not been implemented? The answer is yes. Nevertheless, the conception, design, implementation, and evaluation of the public policy against poverty have been limited. Among other reasons, because the design and implementation of poverty reduction policies have followed, to a greater extent, international strategies initiatives without considering the specifi city of neither the phenomenon nor its determinants in the country. This in itself is not erroneous, though insuffi cient. It would be more pertinent that policies had an initial impulse to the interior of the country. In many cases, the international tendency has been determinant, whether economic and social (PES, Spanish acronym), of macroeconomic stabilization, and structural adjustment programs, ERPs, or the conditional cash transfers which nowadays are applied in Latin America.

Finally, in Guatemalan public policy there are at least three spheres of action or challenges to improve the ERP results: citizen participation; inequality and exclusion, and socio-economic policy, in particular, the agrarian and fi scal policies. The social policy (education and health, among others) must be necessarily interrelated to any poverty reduction policy since their objectives are closely linked. This explains why in Guatemala there has been progress in expanding the education and health coverage, but this has not been translated into poverty reduction. Other policies are necessary to face inequality and wealth distribution, particularly the fi scal policy in its integral sense, as stated in the Peace Accords and the Fiscal Pact, which have assigned budget resources to social funds at different times, though they have not come to represent even the 2.0% of GDP.

2. The State as equity promoter

2.1 Persistent inequality in Guatemala

Fundamental equality among Guatemalans is stated in the Constitution of the Republic: «In Guatemala all human beings are free and equal in terms of dignity and rights. Men and women, regardless of their marital status, have the same opportunities and responsibilities. No person may be subjected to servitude or to any other condition that undermines his/her dignity.»156 However, Guatemala is one of the most unequal countries in the world, as a result of a history of social exclusions and economic models that concentrate wealth.157 (See table 16).

2.2 The State and indigenous populations158

As mentioned in other sections of this synthesis, Guatemala is a multiethnic, multilingual, and pluricultural nation. 40.0% of its population is indigenous who self identify nowadays as Maya, Xinka and Garífuna. These indigenous populations speak, together, 24 languages that also correspond to linguistic communities: 22 Mayas, Garífuna and Xinka.159 The subordination situation of the indigenous—manifested for centuries— is still refl ected in the current Guatemalan society. Recognition of their political rights in the last years, of their citizenship, has provided the opportunity to initiate their incorporation into still insuffi cient aspects of the national life. They occupy the lowest strata of the social structure and the colonial roots of domination, which is still current, turning them into victims of racism and discrimination.

National commitments and indigenous populations

The Constitution of the Republic (1985) is the main national reference in State organization. Article 66 states the diverse integration of the nation: «Guatemala is comprised of diverse ethnic groups among them indigenous groups of Maya ascendance». The chapter about «Indigenous Communities» refers to the protection of the State toward the latter. Additionally, it has other articles related to culture, cultural identity, and cultural heritage (articles 57 through 69).

In a context of discussion of new relationships between the State and the indigenous populations, the Aidpi was signed in 1995, which defi nes the Guatemalan nation as multicultural, multiethnic, and multilingual. In relationship to the compliance of the Accord, in 2002 it was reported there had been advances in relationship to the establishment of the Development Councils, amendments to the Municipal Code and the Decentralization Law. In 2007, a Government

Table 16 Inequality in per cápita family income (1989 and 2006)

1989 2006Gini 0.583 0.562

Wealthiest quintile prticipation (%) 2.7 2.9

Poorest quintile participation (%) 63.3 60.3

Ratio (Q5/Q1) 23.6 21

Source: UNDP (2008a). See table 10.2 NHDR 2009/2010 (UNDP, 2010)

156 Article 4. 157 See UNDP (2009a). 158 One of the inputs used for writing this section was the investigation done for this Report by Quemé, R. et ál. (2010).159 The Commission to Offi cialize Indigenous Languages classifi ed these into territorial, community, and special. Xinka is included in the last category.

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160 Boman, Peck and Velásquez (2003), in Vice-presidency of the Republic and Segeplan (2007: 29).161 The Chronogram for meeting the Peace Accords 2008-2012, prepared by the National Council of the Peace Accords (CNAP, Spanish acronym), prioritized 16 commitments

included in the Agreement on identity and rights of the indigenous populations.162 Quemé, R. et ál. (2010).163 The 4051 law initiative had on October 7, 2009 a favorable resolution form the Indigenous Populations Commission of the Congress of the Republic.164 See Oacnudh (2008) for further details.

report indicated that «[…] according to several studies, there are coincidences that only 4% of the State commitments to Indigenous Populations has been met and this percentage does not have the fi nancial and institutional support».160 The 2009 Report of the Peace Secretariat (Sepaz, Spanish acronym) states that «[…] different reports reveal that the Aidpi is one of the more lagged Accords, however, it is being promoted by the institutions».161 The same Report mentions lagged commitments such as the fi ght to access justice; the lack of legal interpreters and translators of indigenous languages; the impulse to the judicial career for professionals; compliance of the collective rights, and the establishment of the Maya University, among others.

Between 1985 and 2009, the Legislative Branch issued several laws inspired on the Constitution, international instruments and commitments from the Peace Accords, including the Academy of Guatemala’s Mayan Languages law, the law that approves Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries of ILO; the Urban and Rural Development Councils Law, the Municipal Code; amendment to the Criminal Code by adding discrimination as a crime, and the Peace Accords Framework Law.

Most of the Executive Branch institutions that look after indigenous populations have been established through government agreements, which makes them vulnerable, such as the Guatemalan Indigenous Development Fund (Fodigua, Spanish acronym), the Paritary Commission on Indigenous Population’s Rights to land, and the Council for the Defense of Indigenous Women (Demi, Spanish acronym), among others. Quemé and collaborators’ study compared the contents regarding this topic in laws, government agreements, and ministerial decrees issued between 1985 and 2009. It concluded that the Guatemalan State has built a recognition and homage framework for indigenous populations, but it has not legislated on their political, economic, or territorial collective rights recognized in Convention 169.162

International commitments and indigenous populations

Of the many instruments signed by the Guatemalan State, the most important, because of the expansion of its purposes, is Convention 169 of the ILO, of 1989. It is said that it is the most comprehensive because it is the one that granted, for the fi rst time, the character of populations to the aboriginal population of the world, with everything that it meant in

terms of rights (collective, above all). It poses the difference between land and territory, as well as the customary system. It grants the autonomy and free determination option, among others. The defi nition of ‘indigenous populations’ has been subject of debate. Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples addressed it in the early 1980s. Convention 169 did in 1989 and it was included in the Aidpi. The defi nitions in the three instruments coincide in that they are populations (communities, populations) who have had historic continuity with previous societies (to conquest/invasion, colonization), that they are considered different and/or, they keep their own institutions.

The Congress of the Republic approved Convention 169 in 1996. The achievements derived from the Convention’s application have been few. One of them is the amendment to the Criminal Code through Decree 57-2002, which categorizes the discrimination crime. Others are related to the norms derived from the Convention. The National Languages Law applies many of the precepts related to languages included in the Convention. Government and ministerial decrees have been issued, but in general terms they are limited to making statements. One of the outstanding commitments is the consultation to indigenous populations163 in relationship to extractive industries.

The Committee on the Elimination of Racial Discrimination (Cerd) is a substantive part of the State commitments. This instrument became effective in 1969 and Guatemala ratifi ed it in 1982, when the multiethniticity paradigm had not been assumed yet. Of the 42 recommendations Cerd has proposed to the State of Guatemala during the 1994-2007 period, 10.0% has been fully accomplished and half of them (52.0%), partially.164 38.0% corresponds to recommendations without compliance, among them: the Electoral and Political Parties Law to promote the participation of indigenous populations; resolve land issues applying Convention 169 disposition; approve the project of law which characterizes sexual harassment as a crime with more serious sanctions when the victims are indigenous women; include a clause in the Consultative Procedure Regulatory Law regarding the indigenous populations’ right to consultation; and the amendment to the Mining Law with the chapter dedicated to consultations prior to issuing licenses. Additionally, the issuance of a declaration of article 14 (paragraph 1) of the Convention is pending; it recognizes the Committee’s competence to receive and examine communications from


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persons or groups who claim to be victims of violation to any of the rights stipulated in it.

Institutionality and public policies

This section analyzes the State as a creator of some institutions directly related to indigenous interests, addressing their rights, and complying with some aspects of the national and international commitments. The most important are mentioned.

The Academy of Guatemala’s Mayan Languages (ALMG, Spanish acronym) was established in 1990. It is an autonomous State entity, leader of the promotion and development of Mayan languages around the country. Its objectives include promoting and performing scientifi c research to support actions aimed at the development of Mayan languages; regulating the use and application of those languages; promoting Guatemalan languages and other cultural values; ensuring the recognition, by implementing and encouraging bilingual and monolingual publications programs; executing educational and cultural development programs based on the results of anthropological, linguistic, and historic research performed; and providing technical and scientifi c assistance to the Government and institutions in the areas of its competence.

The Guatemalan Indigenous Development Fund (Fodigua, Spanish acronym) is a national, decentralized entity with bipartisan structure. It is comprised of a National Directorate Council, comprised of persons proposed by the central Government and indigenous organizations. Its mission is «[…] to promote and strengthen human and social capital training of men and women of the Maya, Garífuna and Xinka populations increasing their individual and collective capacities for self-management, improving the living conditions and full exercise of their citizenry through access to science and technology without detriment of their ethnic identity.» Fodigua must work in coordination with the Presidential Commission against Discrimination and Racism against Indigenous Populations in Guatemala (Codisra, Spanish acronym).

The Council for the Defense of Indigenous Women (Demi, Spanish acronym) is an entity dependent of the Presidency of the Republic, its mandate is to promote and develop with government and non-government entities, public policy actions, plans, and programs to prevent, defend, and eradicate all forms of violence and discrimination against indigenous women.

Codisra has among its functions to advise and accompany the different State institutions and offi cers as well as private institutions to develop mechanisms to combat discrimination and racism; formulate public policies which guarantee non-discrimination and non-racism, as well as follow up their execution; keep a registry of accusations and channel them to the appropriate institutions; prepare reports that the Guatemalan State should submit to international organizations. It promoted Public policy for coexistence and the elimination of racism and racial discrimination. Said policy was approved in 2006. It includes 120 actions under Codisra’s leadership in six axes that support the acts of the different government institutions in terms of inclusion of actions in plans and programs aimed to eradicate racism and ethnic discrimination.

The Indigenous Interinstitutional Coordinator of the State (CIIE, Spanish acronym) is a political entity for coordination and consultation comprised of State institutions representatives (mostly agencies of the Executive Branch) whose mandate is specifi c attention to indigenous populations. It currently has 25 member institutions. CIIE does not have legal support.

Financing as institutional support

Support with human and fi nancial resources targeted to institutional support is key to understand the results to date. In the fi rst case, Demi is the institution with more personnel in the 011 budget line item (60.0%); it has more permanent staff. Codisra and Fodigua have temporary staff hired under budget line items 022 and 029. The budget allocated for the operations of these institutions is precarious. Between 2004 and 2008, the total executed by fi ve institutions varied between 0.08 and 0.15% of the national budget. In 2009, the total represented 1.21% and the increment was due mainly to the expansion of the intercultural bilingual education program.

Inequalities that affect indigenous populations’ human development

In the last decades, there has been some progress in reducing the inequalities that affect the indigenous populations. Nevertheless, the gaps are still signifi cant in the different environments of social life. Although the HDI of the indigenous population has increased in almost 20 points, a «distance» of about some 12 points still persists vis-à-vis non-indigenous population.

Human Development Index (HDI) is a synoptical indicator that refl ects the different inequalities in fundamental human

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capacities. These inequalities become evident when observing more specifi c indicators of different dimensions. There has been some progress in the evolution of infant malnutrition according to ethnicity. Nevertheless, 43.0% of Guatemalan children suffer chronic malnutrition (low height for age) and 16.0% suffer severe malnutrition. However, the indigenous population is much more affected by malnutrition: three out of fi ve indigenous children suffer chronic malnutrition and one in four is severely malnourished. Malnutrition is an important barrier to the development of human capacities. As previously discussed, the indigenous population presents more poverty levels and malnutrition reduces the possibilities for affected children to grow out of poverty in the future.

2.3 The State and inequity towards women165

Gender equality and gender equity

Since 1945, the United Nations Organization (UN) announced its commitment to work towards equality between men and women. Thirty years later, in 1975, because of the increase of the gaps between men and women, the United Nations General Assembly held the I World Conference in México. That year was declared the International Year of the Woman and the United Nations Decade for Women (1976-1985) was declared. As a result of the I Conference, a world action plan was approved which established a minimum of goals to be reached by 1980, which focused on guaranteeing equitable access of women to education, job opportunities, political participation, health services, housing, nutrition, and family planning. The Mexico Declaration on women’s equality and their contribution to development and peace was also issued.

In 1976, the United Nations General Assembly (Resolution 39/135) as a response to women’s organizations’ and Government’s demands, created the United Nations Development Fund for Women (Unifem), which provides technical and fi nancial assistance to innovative programs to promote women’s empowerment and gender equality. Unifem’s work responds to a single objective: compliance of the national commitments to encourage gender equality and women’s empowerment in stable or weak States. Its mandate focuses on reducing poverty and women’s exclusion, ending violence against them, reducing the spread of HIV/AIDS in women and girls, and supporting women’s leadership in public management and in post-confl ict reconstruction.

Starting in 1975, women’s world conferences convened by the United Nations placed gender equality in world topics and established as objectives the elaboration of strategies and actions plans for women’s advance. In a parallel way to the women’s world conferences, conceptual frameworks and theoretical approaches were developed. Regarding this, it is convenient to differentiate two concepts which are commonly confused: gender equality and gender equity. Gender equality means that both women and men enjoy the same condition to exercise their human rights and that they are free to realize their potential and their personal capabilities, as well as to make decisions without limitations imposed by the roles society traditionally assigns them. Gender equity is the process of being fair to women and men, for which it is necessary to take measures that reduce the social disadvantages and differences that impede women and men to act under equal conditions in all aspects of social, economic, political, and cultural life.

The Convention on elimination of all forms of discrimination against women and other international instruments

In the framework of the Women’s Decade, the United Nations General Assembly approved in 1979 the Committee on the Elimination of Discrimination against Women (CEDAW). The Convention is one of the most powerful legal instruments in the fi ght for women’s equality, to the extreme that it has been called the «bill of rights for women». It became in force as an international treaty on September 3, 1981, after being ratifi ed by 20 countries.166

The Inter-American convention on the prevention, punishment and eradication of violence against women, known as Convention of Belem do Pará, was approved by the Organization of American States General Assembly on September 6, 1994. Guatemala ratifi ed it through Decree 69-94 and became in force as of May 3, 1995.167 Guatemala as a member State of this Convention has participated in activities to prepare the Hemispheric Report, adopting decisions, conclusions, and agreements. Guatemala has undertaken more actions every time with greater coordination among the different branches of the State and with civil society (that is the case of what has been done in relationship to violence against women).

165 This section is based primarily on the research by Asturias and Mendizábal (2010) for this Report. An abbreviated version will be published as a Human Development

Notebook of the 2009/2010 series.166 After the Convention on the Rights of the Children this is the human rights international convention that has been ratifi ed the most.167 Convention, which specifi es the obligations of the Judicial Branch(article 7, items d, f, and g) and the Legislative Branch (article 7, c, e and h), article 1 legally defi nes

violence against women like this: «Article 1.- For the purposes of this Convention violence against women must be understood as any action or conduct based on her gender, which causes death, damage, or physical, sexual or psychological suffer to women both in the public environment as in the private environment». This defi nition is the one that must be applied in legal instruments and norms of internal law.


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MDG 3 is part of the planet agenda to reduce hunger and poverty and to improve humanity’s living conditions; it also promotes equality between men and women, as well as women’s empowerment. A goal is to eliminate gender inequalities in primary and secondary education, preferably by year 2005 and in all levels of education before the end of 2015. Other goals are related to the labor and political environments.

Judicial framework related to gender equality and women

The Constitution of the Republic promulgated in 1985 includes three leadership principles of the national legislation: equality before the law (article 4), law enforcement equality (article 153), and discrimination prohibition. Even though there is not a specifi c text on this prohibition, article 4 applies: «In Guatemala all human beings are free and equal in terms of dignity and rights. Men and women, regardless of their marital status, have the same opportunities and responsibilities. No person may be subjected to servitude or to any other condition that undermines his dignity. Human beings must have a fraternal conduct among them».168

Participation of the Civil Society Women’s Sector in formulating the Peace Accords began since 1994 with the proposal of its own topics; it emphasized social aspects such as housing, health, culture, education, labor, and agrarian aspects. Thus, women’s perspective on topics that affected them most and their vision on the solution to national problems was integrated into the public agenda. Many of the topics proposed by the Women’s Sector in the Civil Society Assembly (ASC, Spanish acronym) were collected in three of the Peace Accords: The Accord on identity and rights of indigenous populations in 1995, the Accord on Socio Economic Aspects and Agrarian Situation, and the Accord on strengthening the civil power and the role of the Army in a democratic society in 1996.

The Government took on several commitments such as: characterizing ethnical discrimination as a crime and revising the legislation in force; derogating any law and disposition which may have discriminatory implications towards indigenous populations; legislating to characterize sexual harassment as a crime and considering as an aggravation in establishing the sanction of sexual crimes if they were committed against an indigenous woman; establishing a Council for the Defense of Indigenous Women, with their

participation which includes judicial assistance and social services; and divulgating the Convention on the prevention, punishment and eradication of violence against women. Additionally, the Governnent incorporated the dispositions of the Convention to the Criminal Code, recognizing the competence of the Committee to Eliminate Racial Discrimination to receive and examine communications from persons or groups who claim to be victims of violations; and approving Convention 169 of ILO. All of this was accompanied by awareness campaigns and educational programs at the national level to raise awareness in the population on women’s right to participate in the civil power strengthening without any discrimination whatsoever and with full equality, both by rural women and by urban women. Adopting specifi c policies by political and social organizations to encourage and favor women’s participation as part of civil power strengthening; institutionalizing rural and urban women’s organizations; and guaranteeing organized or non-organized women’s participation in all forms of exercising power.

Other commitments were to recognize women’s and men’s equality of rights, at home, work, production, and in the social and political life, and guaranteeing women the same possibilities as men, in particular the access to credit, land allocation, and other productive and technological resources; guaranteeing education and training, housing, health, labor, organization, and participation.

Formulation initiatives of a public policy in favor of women (1986-2009)

The 1986-1999 period was characterized by a series of attempts to formulate a public policy in favor of women as a response to the demands of the 1985 Constitution of the Republic and the organization of the Women’s Sector as part of the ASC. The Women National Offi ce (Onam, Spanish acronym), the Secretariat of Planning and Programming (Segeplan, Spanish acronym), and the First Lady’s Secretariat of Social Welfare (Sosep, Spanish acronym) led different efforts with women’s organizations support. The Women National Forum prepared a policy proposal, but towards the end of the XX century there was not a specifi c policy in place with fi nancial resources. In 1990, Onam and Segeplan prepared the fi rst National policy for women’s and families’ development in Guatemala. This Policy aimed to correct the existing inequalities de jure and de facto in the national laws that affect women and families; revalue the role of women and families within Guatemalan society in a framework of justice and equality;

168 In this regard, the difference between formal equality, regarding the contents of the letter of the law, and material or factual equality, which originates from the persons’

real condition, must be clarifi ed. CEDAW, as well as other international judicial instruments, promotes transitory measures of positive discrimination that allow moving from inequality to factual equality between women and men. In Guatemala, besides international instruments ratifi ed by the State, the Peace Accords included measures for women’s advancement.

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Figure 16 Chronology of the elaboration of policy documents for women´s promotion and development

Source: prepared by UNDP. See fi gure 10.5 NHDR 2009/2010 (UNDP, 2010).

Convention Belem do Pará

Cairo Conference

IV Women´s World Conference

Protocolo Faculativo CEDAW

Onam/Segeplan

Política nacional para el desarrollo y promoción de la mujer y la familia

en Guatemala.

Sosep/Onam

Política nacional y Plan de equidad de

oportunidades1998-2001

FNM

Propuesta nacional ejes de desarrollo

económico y desarrollo social

Segeplan

Política nacional de promoción y desarrollo

de las mujeres guatemaltecas y Plan de equidad

de oportunidades 1999-2001

Seprem




Seprem

Política nacional de promoción y

desarrollo integral de las mujeres

2008-2023

Actualización

Seprem

Política nacional de promoción y

desarrollo integral de las mujeres y Plan de equidad


Evaluación externa de la




Viena Declaration

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

increase women’s participation in civil, political, and labor organizations; and enhance women’s access to education and occupational training, as means to their adequate integration into the labor market. Likewise, the policy intended to improve women’s work and participation conditions in the national formal economy; develop a system of support services for working women; improve women’s health status through an integral care during all stages of their lives, as well as provide the adequate attention to at-risk women’s groups. Its priority axes focused on: equality and participation (women’s judicial and social situation), education, health, labor, and peace. In 1991, the new Presidential administration did not take it as a policy. The efforts in terms of policy proposals and actions for women continued and there were different results, among them: Development Action Plan (Plades, Spanish acronym) 1992-1996 and 1996-2000; National Policy and Equity of Opportunities Plan (PEO, Spanish acronym 1998); and different proposals of the Guatemalan Women Promotion and Development National Law (PNPDMG, Spanish acronym), whose elaboration process is summarized in fi gure 16.

Institutionalization of a public policy in favor of women (2000-2009)

The fi rst decade of the XXI century allowed advancing the institutionalization of a public policy in favor of women. The Presidential Secretariat of Women (Seprem, Spanish

acronym) was established through Government Agreement 200-2000. One of its main functions was the formulation and implementation of the PNPDMG and the 2001-2006 PEO, taking as input previous initiatives. This institution was tasked with «[…] establishing a consensus of consensus mainly of two policies under dispute to be able to elaborate the Policy» (Gomáriz and Jovel, 2007:79).169 For its elaboration, Seprem, convened women’s organizations with which there was a consensus management process which unifi ed the different needs and proposals in a unique national policy document.170

The mechanism through which Seprem has promoted the institutionalization of the Policy is the Consultative Council, where institutions in charge of implementing said Policy participate through specifi c programs, plans, and actions. Another level of joint work for the implementation of the PNPDMG was the State Interinstitutional Coordination for Women’s Development integrated by Demi, Onam, the National Women Forum, Sosep, and Seprem.

Complying with article 5 of the Dignifi catión and Integral Promotion of the Woman Law, in 2005-2007 there was an assessment of PNPDMG’s implementation. The implementation in charge of various State institutions during the 2000-2006/07 period was evaluated in the fi rst phase and in the second one there was an external evaluation. The latter considered three components: the design of the policy, its implementation, and its results. This has

169 The National proposal. Economic and social development axis and the National policy and the 1998-2001 Equity of opportunities.170 Women public offi cers’ participation was in their personal capacity. They did not act as representatives appointed by the institutions.


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Graphic 23 HDI and GDI comparison according to ethnicity and geographic area (1989 and 2006)

Source: UNDP Guatemala based on offi cial data.See graphic10.18 NHDR 2009/2010 (UNDP, 2010).

Total

0.800

0.700

0.600

0.500

0.400

0.300

0.200

1989

1989

1989

1989

1989

2006

2006

2006 2006

2006

Urban Rural Indigenous Non-indigenous

Graphic 22 Ratio men/women in human development indicators

Source: UNDP Guatemala based on offi cial data. See graphic:10.17 NHDR 2009/2010 (UNDP, 2010)

1.00

0.00

EVN, 1.10

School, 0.94

Literate, 0.84

Income, (GDP) 0.31

been the fi rst public policy to be evaluated since the 1985 Constitution promulgation and from this exercise several recommendations to update it emerged; those were later incorporated to the National Policy of women’s promotion and integral development (PNPDIM, 2008-2023), proposed for a 15-year term so that it had independence from political cycles.

In compliance with article 5 of the Dignifi cation and Integral Promotion of the Woman Law, during its third term (2008-2012), Seprem began in 2008 the elaboration process of the new PEO, from a wide, diverse call with future vision, in agreement with the PNPDIM (2008-2023) .

Inequalities that affect women’s human development

The human development gaps between men and women continue to be important in Guatemala. Two indicators synthetize these inequalities: gender-related development index (GDI) and gender empowerment measurement (GPM). GDI has the same components as HDI, but it is estimated adjusted according to the inequalities between men and women in each indicator. GPM refl ects the participation levels in different aspects of society, adjusted by the inequalities between men and women.171 Graphic 22 shows the evolution of the ratio of women in relationship to men in the GDI indicators. The most important gaps exist in participation in economy. In education there is a trend to matching. In the case of life expectancy at birth, women surpass men.

GDI summarizes these inequalities and their effect on the HDI, as shown in graphic 23. Even though signifi cant gaps between men and women persist, their reduction between 1989 and 2006 has been considerably greater in the rural area and in indigenous population.

Human development implies many dimensions, some of which are very important to evidence gender differences. GDI refl ects some fundamental dimensions of the differentiated participation in decision making and economic activities. The greatest inequality is in parliamentary representation. This inequality has not been reduced in the period analyzed; in fact, in the Congress of the Republic there are only 20 Congress seats occupied by women and of them four are indigenous out of a total of 158 Congress members. At the municipal level, out of 333 mayorships, six are occupied by women (only one of them is indigenous).

A similar trend is presented at the institutional level and in other key positions of public administration. There are only three female governors, one vice-minister, two deputy secretaries, and one deputy manager, all of them are indigenous. According to Segeplan statistics, of the 1,051 members of the Codede at the national level, 137 are women, and of this number 53 are indigenous women.172

171 In three dimensions: political participation and decision power; economic participation and decision power; and control over economic resources. 172 2009 Report, Progress on Meeting the Peace Accords: 45.

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Other economic gaps not less important are included in indicators on assets owned by women. When analyzing the trend of land in property between 2000 and 2004, it is evident that invariably women have access to one fi fth of production units in property vis-à-vis men.

Conclusions

The evaluation of the program evidences that, even though explicit objectives and goals are specifi ed to reduce poverty, the results of the economic policy do not translate into social objectives. If the years of economic growth are associated to the period of poverty estimations (1989-2006), the economy grew at an annual rate of 3.6%. However, poverty annual reduction in that period was in average 1.2%. Additionally, each Government has implemented its own poverty reduction policy without giving continuity to the previous efforts. Finally, in the Guatemalan public policy, there are at least three action spheres or challenges to improve the results of the ERP: citizen participation; inequality and exclusion; and economic-social policy; in particular the agrarian and fi scal policy. The social (education and health, among others) policy must be necessarily interrelated to any poverty reduction policy, given that their objectives are deeply related.

The 20-year period of the fi rst policy proposal in favor of women has been marked by mistakes. In the fi rst 11 years, the lack of political will on behalf of the State stopped the institutionalization of the gender topic in the public agenda. In the following seven years, institutionalized public policy management had obstacles in its implementation through the technical instrument which takesthe policy strategic actionsto the operational plan. Finally, in the last two years there was a step back by proposing again an already elaborated and approved public policy, by that wasting three years between the elaborations of the PNPDIM 2008-2023 until the approval of the next, in 2009.

In the last decades, there has been some progress in reducing the inequalities that affect the indigenous populations. Nevertheless, the gaps are still signifi cant in the different environments of social life. According to the recent evolution of the Guatemala’s human development index (HDI), disaggregated by ethnicity and area (urban or rural), it can be noted that if the indigenous population HDIhas increased in almost 20 points, a «distance» of about some 12 points still persists vis-à-vis non-indigenous population.


C 11 This fi nal chapter summarizes proposals on how the State that Guatemala needs must be established to promote its citizens’ human development at the highest and less unequal levels. At the same time, it describes the options those citizens have available to encourage it. It is a relationship of mutual implication among citizenry and public institutionality to accomplish said development. The State has the duty to provide the necessary conditions and the citizen has the right to demand them.

This section is inspired in an objective will to recognize the structural seriousness that affects basic State institutions, institutions that do not operate in a social emptiness and which move according to the dynamics imprinted on them by their leaders. In synthesis, the crisis belongs to the society and to the social and political forces that comprise the authority, to the values which encourage it, and to the hopes to which one should not quit.

1. The international context

Currently, the claim for a State’s new role answers to important changes happening in the global economy and in international politics. The fall of the Berlin Wall (1989) is used as a symbolic date of that starting point, which may be admitted if to that we add the most relevant fact of socialism’s base real break, the expansion of the market economy and of liberal democracy, transcendental milestones in humanity’s life. As mentioned by important analysts, that is how a crisis of the State form began; not only the totalitarian State crisis, but also of social-democrat States and with that, a generalized State crisis. The neoliberal orientation expressed these diffi culties in the theoretical and ideological level by criticizing the role of the State, pointing out its excessive weight in the

promotion of development in the previous decades, not being able to control social movements, ensuring payment of the external debt, as well as its inability to reduce public defi cit and other relevant macroeconomic aspects.

In Latin America the external debt crisis resulted in recommendations from the Washington Consensus which included State reform and modernization proposals aimed to establish the limits of the State’s actions in the market. In a parallel way, globalization strengthened the tendencies to de-regularize international trade. Thus, two trends were basically strengthened in Latin American societies, one the measures to reach stability through applying policies oriented by market mechanisms; and the other, the ones that searched to reduce the size of the State and its intervention degree in the economy. In Guatemala, obedience to the Washington Consensus173 agreements delayed development and made the State to grow more in relationship to its order and control functions.

The 2010 Report of the Economic Commission for Latin America and the Caribbean (ECLAC)174 indicates that, as an effect of anti-State emphasis, fundamental institutions for social development were dismantled. The defi cits we suffer are a refl ex of the known structural heterogeneity, of historic inequalities and inequities, and of profound authoritarian heritage. A new consensus has emerged in the last years regarding the role of the State before economic and social challenges and regarding the recognition of markets’ inability to face the profound inequalities, address the topics of education and wealth as a development requirement, and face development in the long term. Even before the triggering of the current economic-fi nancial crisis (2008) it was valid to consider that the State versus market debate is superfi cial and that both should face development problems

173 See UNDP (2004a) and ECLAC (2004). 174 ECLAC (2010: 232-233).

Chapter 11The State as a promoter of human development

PART IV THE STATE AS A PROMOTER OF HUMAN DEVELOPMENT

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93Estado y desarrollo humano, una sinergia necesaria

with equity and with an inclusive democracy. The synthesis of the previous statement is the will to build the democratic State, which is liberal democracy in action. It is liberal because of its emphasis on freedom, and democratic because of its commitment to equality; both are ethical fundamental values.

2. Guatemala: the necessary and possible State

The architecture of the possible State, in the optic of the desirable State, would have to be delineated from the social forces that comprise Guatemalan society and from everybody’s interests. We talk about ‘possible’ in relationship to the national history and at the same time, to the current wills; and about ‘desirable’ in relationship to the problems that must be solved. The search routes for a human development State which are reviewed pro-positively in the Report are not outlined from a lineal evolution perspective, or as a unique route, but from the multiple situation of a threatened State which may undoubtedly be corrected. Therefore, the perspective to reform and transform institutions or isolated sectors of the Guatemalan State is not assumed, but rather to have a vision to modernize it wholely and deeply. It is necessary, then to have an integral perspective and take advantage of the moment.

3. The State Guatemala needs

The necessary State in these times is the one that promotes better human development options for all the population. The general supposition to consider how the State should be transformed goes beyond what normally is conceived as a group of reforms of the administrative, technological, or managerial management; political criteria are also necessary. The State is a multiple structure whose dynamics depend on who occupies it and who directs it; i.e., on the people (political parties, organizations, and personalities) whose ideals, capacities, and interests determine its course. In the last part of the XX century, modernization was understood as market strengthening. Under that framework, the Guatemalan State’ functions, attributes, and resources were curtailed, which made it even weaker. Currently, it is necessary to search an essential balance returning to the State its regulatory, promoters of development functions. The statement that a strong State is required formulates an answer and outlines a hope. The basic features of what is understood as strong are:

• Effi cacious/effi cient. To have the appropriate institutions led by a technical-political, meritocratic group that is effi cient (in fulfi lling its public policies)

and effi cacious (by making internal decisions typical of its operations).

• Legitimate. That the government cohort is a legitimate authority, which translates into the expression of will of most of the citizenry, a result of democratic electoral processes (origin legitimacy) and complying with responsibilities along its management (legitimacy function).

• With monetary resources. That the State has the necessary power, including fi scal capacity, to have suffi cient economic resources to meet its basic functions, including development policies with equity among others.

• Independent. That it is led by politicians and technical offi cers, who, when accessing power, work with a vision superior to the interests of the party or to personal interests; and that when making decisions, the central preoccupation is serving the entire nation, benefi ting the common good.

• With honesty. All the previous features lose sense if a transparent public administration is not ensured, subject to periodic control or internal (vertical monitoring) and external supervision (horizontal monitoring) of resource management, meeting deadlines, and other commitments. Likewise, with disciplinary and punishment procedures.

• Ensuring Rule of Law. The general framework of a strong State requires a Rule of Law State, which is the one where everybody, governing and governed ones, follow the law and independence of powers is respected.

4. Proposals

Many of the change proposals presented in the Report presuppose a constitutional reform. The analysis of the constitutional text and of the changes implemented in Guatemalan society since 1985, with the purpose to support such reforms, are obligatory background for any constitutional amendment. Such analysis is not done in this Report.

Structure and bureaucracy

Some reforms in the Executive Branch

A historical sector division of the Executive Branch exists;


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94

the same has weakened the unitary function of the system. Each Ministry develops administrative and service actions to address its sector. That results in an extremely rigid vertical integration which has slowed the cooperation with the other Ministries and other central Government entities.

A new Executive Branch Law must ensure unitary relationships and ample cooperation among the Ministries and their different entities, both in the central Government as in the departments and municipalities where such relationships happen. The strategy is to search institutional synergy beyond the sector, to make the capacities of the State a stronger and more effi cacious group, with community and territorial support together with the specialized services of each entity. These joint interventions are indispensable in the case of multidimensional problems such as food security, integral rural development, public health and sanitation; but above all, before challenges such as elimination of poverty, reduction of inequalities, articulation for disasters prevention and mitigation, as well as public security and fi ghting narco-activity topics.

State bureaucracy operations and civil service

The State suffers a fundamental defi cit. It is increasingly more sensible regarding the lack of a modern administrative career. Governments and their political or trusted teams change, but the State must keep its institutions invariable, with stable and professional staff who contribute to give continuity to the long term policies, which are the most important in terms of human development objectives.

It has been traditional in Guatemala that every new Government changes its administrative apparatus, removing a great amount of staff to make place to the loyal ones it brings along. This generates to the State a loss of human and fi nancial resources as well as constant change where most of the institutions waste accumulated capacities at the very scarce quality levels. Additionally, institutional memory, so necessary for continuity of the public policies, is lost.

The modern State’s demands force to issue a new Civil Service Law which includes basic principles such as the creation of the administrative career, especially at the intermediate level which implies a) rigorous hiring rules in professional technical aspects, which do not allow for the emotions of the personal aspect, nor for the politics of the electoral processes to intervene; b) ensuring the time and long term appointments, with enough guarantees; c) the appropriate salary, in the framework of a rational technifi cation and salary program. This Law should address aspects of positive discrimination in favor of indigenous professionals and/or women for technical and direction responsibility positions. The approval of a Civil Service Law must be applicable to the entire State and,

eventually, inspire laws or sector regulations.

4.2 State presence in the territory

While in some topics developed in this Report signifi cant progress is shown, they are relative when observing the indices and sub indices of State density. The State does not address enough its functions at the municipal level, where most of the population of the country resides, particularly indigenous populations. This attention requires an institutionality provided of idoneous staff and adequate fi nancial resources.

For the State to propitiate human development of its citizens and reducing inequalities, it is required: a) implementing State decentralization in the areas where it has not operated and strengthen its presence in those areas where it works with bureaucratic or budget weakness; b) prioritize the regions with low human development, where poverty, exclusion, and inequalities are associated to rural and indigenous populations; c) strengthen inter-institutional coordination and territorial investment in municipalities, according to long term plans.

4.3 Fiscal policy for human development

The modern State may experience fi scal defi cits as a socioeconomic stabilization instrument, but it may not lack resources to accomplish its primary ends, which nowadays are imposed by the society growth. The State must collect taxes; one of their limits is determined by the size of the wealth produced every year by society, and the other one, by the percentage amount which the State is able to collect from that wealth. The size of that relationship between the limits is the gap of the fi scal State sovereignty. The Guatemalan State has been a needy power because of its low capacity to collect the possible taxes. It stumbles against the interior of a vicious circle: it collects little and collects badly, it does not spend what it receives and on top of that it spends it badly. Sometimes it spends with little transparency, thus feeding a pretext for some to justify citizens’ incompliance to pay taxes. When all who should pay taxes do not do it, the State is more weakened, which reduces its ability to collect. Likewise said circle is closed.

Income distribution, poverty and inequality reduction will not experience a signifi cant and sustained improvement without active fi scal policies which infl uence the quality and distributive potential of the Guatemalan economy.

As proposed by the Fiscal Pact, one of the most important purposes is to ratify the State’s fi scal sovereignty as a condition for its healthy existence. The Pact constitutes an agreement

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95Estado y desarrollo humano, una sinergia necesaria95

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of the main sectors of the country which aims to establish the amount, origin, and destiny of the resources the State must have.175 It establishes the principles and commitments between the State and society to defi ne its fi scal policies. Its only purpose is to help building a Strong State, as previously defi ned, which has a power able to translate itself into justice, equity, and social inclusion principles.

A healthy fi scal policy includes aspects such as eliminating privileges, exemptions, and fi scal exonerations, and a globally progressive tax burden to accomplish that its averages increase as the taxpayers’ income is bigger. A healthy fi scal policy recommends simplifying the collection, expanding the tax base, certainty in expenditure management, all of that in benefi t of establishing a tax culture which serves both the collectors and the payers thus ensuring that the Superintendency of Tax Administration (SAT) works in an even more operational, technical, and political manner, in correspondence with a State present in all the national geography.

A fi scal agreement also includes instruments to guarantee the good management of public resources, institutional, and citizen control to prevent and/or punish corruption, which acquires an ample meaning in the framework of a democratic State.

4.4 Security and justice

The initial premise is the need to strengthen and tighten the coordination among the institutions that have jurisdiction in the security and justice environment, assuming a programmatic closeness focused directly on the security and justice sector, considering the sector as a comprehensive and integrated total, with the purpose of providing the State with the indispensable tools for meeting its constitutional obligations.176 The 2009-2010 Human Development Report for Central America develops this line of thinking when evaluating the citizen security and criminal justice systems of the Central American countries and proposing transforming them.177

The National agreement for advancing security and justice

A decisive step was taken on April 15, 2009 when authorities of the three State branches and the chief of the Public Ministry (MP, Spanish acronym) signed the National Agreement for advancing security and justice. This Agreement includes

101 different commitments related to security, police reform, the prison system, policies and institutionality for criminal investigation, fi ght against impunity, justice administration, and the issuance of laws related to these topics. It considers security and justice policies as the immediate and permanent task of the State. It recognizes «That it is fundamental to strengthen a dialog culture and the mechanisms of peaceful confl icts resolution, which allow overcoming confrontation, social exclusion, inequity, violence, and impunity which the Guatemalan society has lived historically and which has brought the weakening of the social fabric and of State institutions».

This Report proposes:

• Recognize that the National Agreement for advancing security and justice is a fi rst State Agreement in this topic. The Agreement is an opportunity for transforming the security and justice structures in Guatemala, visualizing them as an articulated total.

• Support the political maturation process of this Agreement as the only viable way for the Guatemalan State to be able to orient its efforts in the articulation of a National Security and Justice System, from which the presence and State actions guarantee the reduction of violence and the fi ght against organized crime.

• Interpret the contents of this Agreement as the summary of a vast dynamics of multisector discussion generated during the 1999-2009 period in the immediate context and subsequent to the peace negotiations.

• Accept that it is indispensable to strengthen and continue with the establishment of all the entities foreseen in the text of the Framework Law of the National Security System, beginning by making effective the operation of the National Security Council so that it becomes the governing body of the National Security System.

• Recommend that, as an integral part of the effort to accomplish the professionalization of human resources aimed to provide security services, all the necessary support be provided to the immediate establishment and operation of the National Institute of Strategic Security Studies (Inees, Spanish acronym) responsible according to the Framework Law of the National Security System of being the institutional, instrumental and functional

175 This section takes some basic ideas from the Fiscal Pact for a future with peace and development, Guatemala, March 25, 2000.176 Recommendation from the UNDP’s Bureau for Crisis Prevention and Recovery (BCPR) 177 See UNDP (2009a).


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framework the State has to train, professionalize, and specialize the idoneous human resource in the nation’s security area.

• Highlight the importance of prioritizing, in fulfi lling the Agreement, the topic related to police re-founding, structuring it through the installation of a preventive police model, a specialized police criminal investigation model, and the training of special forces responsible for facing organized crime and narco-activity crime actions. Also, the establishment of the Institute for Care and Protection of Violence Victims, the installation of a functional and effi cient Correctional System, and an effective control of weapons and ammunitions, directed toward the formulation of a national disarmament policy.

• Highlight the importance of having a registry, supervision, and control of private security and intelligence services, giving special priority to the approval of the operational bylaws of the National Intelligence System foreseen in the Framework Law. Finally, paying special attention to the need of debating locally the crime prevention policies, articulating this process with the stimulus to the compliance of democratic controls to the National Security System, in particular the effi cient operation of citizen control.

• Interpret the compliance of the Agreement, according to this order of priorities, as the fundamental contents of the country’s strategic agenda in terms of security and justice, structured according to topics that condition the nature of a process that should not necessarily be lineal, but, according to the progress in each priority, there could be some lateral or parallel exits, which maybe, would collaborate to shorten the path toward a National Security and Justice System.

As an axis of the aforementioned, because of its operational dimension, the National Security Policy has to be designed and then assumed by the State as the key factor in the operation of the National Security System. Likewise, the approval of the legislative agenda related to security policies is required.

Justice reform and the fi ght against impunity

Guatemala needs a transparent, effi cacious, agile, independent, and impartial justice system. Only so citizen demand for establishing confi dence on institutions and

their leaders could be satisfi ed. Several efforts have been tried in this direction since the signature of the peace, but the increment of the Budget and international cooperation resources have not been animated by a common rationality. The modernization of the criminal process introduced around 1992 was important. It included redefi ning the role of the judiciary, of the Public Ministry, and of the public defense offi ce. More profound policies are needed to generate structural changes to ensure in a defi nite way the probity of the National Civil Police (PNC, Spanish acronym), the prison system and the processes to elect the Attorney General, Magistrates of the Supreme Justice Court (CSJ, Spanish acronym) and the Appeals Court, of the Direction of the Criminal Public Defense Institute (IDPP, Spanish acronym), and the Constitutional Court (CC, Spanish acronym). These reforms should be accomplished in the constitutional framework and should be animated by the need to have a modern judicial branch, typical of a democratic State.

The organic challenges of the justice system include: a) Independence, impartiality, suitability, and stability in the jurisdictional function. An independent judicial system cannot exist when the total of the Supreme Court and Appeals Court magistrates is renewed every fi ve years (13 and 90 magistrates, respectively).178 b) Establishing a judicial career: it is recommended to consider and modify the topic of the judicial career in relationship to the independence and impartiality of judges and magistrates: selection and appointment, disciplinary regime, professional performance evaluation, transfers, and promotions. c) Separation of the jurisdictional and the administrative aspects: the responsibility to judge must be separated from the administrative management responsibilities. d) Careers equivalence: the prosecutor career must be equivalent to the judge career in judicial status.

The operational challenges of the justice system include: greater Budget resources, depuration of all security and justice careers, inter-institutional coordination (MP, Mingob, PNC, and Inacif ); and civil society participation.

4.5 Health and education

Health

In 2008, the UNDP with the support of MSPAS and other institutions published The health system in Guatemala,

178 United Nation’s Special Rapporteur on the Independence of Judges and Lawyers considered in 2009 that the fact that judges are subordinated to a fi ve-year term weakens the Judicial Branch, affects their independence and professional development. He mentioned the need for legislative reforms to solve this problem as long as they are focused on building a true judicial career and the establishment of legal mechanisms that break with the provisionality that implies the election of judges and magistrates for a fi ve-year period. At the same time, he argued the need to establish effi cacious accountability mechanisms for judges and magistrates.

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where are we going? a diagnosis that included analysis of the population, morbidity and mortality, nutrition, fi nancing, actors, and imaginary. Two years later, the current Report takes again the main proposals described in such study and reaffi rms the need for a national calling which translates into a rethinking of the country health system, not only of the public sector. Among the proposals are: a) reduce the differentiated expositions to the risks between the social strata through strengthening the MSPAS, provision of integral services, and the promotion of healthy life styles; b) develop health social protection mechanisms, especially for children, adolescents, senior citizens, people with special challenges and in unemployment situation; c) decrease the differentiated consequences through the development of accessible care integral services, with quality and with cultural pertinence; and d) establish fi nancial protection mechanisms to avoid catastrophic expenditures on health.

In relationship to chronic malnutrition, the following actions are proposed: a) for the temporary solution of nutritional defi ciencies, focus the care of at-risk populations, improve the effectiveness of the programs and guarantee the continuity of evaluated programs and actions for long periods; b) for addressing the structural causes of food defi ciencies, harmonize the country’s food and nutritional security agenda to guarantee the optimum nutrition of every Guatemalan; c) follow the recommendations of the United Nations Special Rapporteur on the Right to Food, which include strengthening the Food and Nutritional Security Information and Communication System and establish an effi cacious early warning system together with the response to the corresponding emergency.

Education

The commitment to education as a major route to improve human development of the Guatemalan population and reduce poverty and social inequalities only acquires its true liberating sense in the long term. This necessary temporality requires long haul educational policies which allow giving continuity to the educational reform derived from the commitments included in the Peace Accords, which ensure the right to education and which respond to the XXI century challenges. These policies —formulated in a participatory manner with the leadership of plural mechanisms such as the National Education Council (CNE, Spanish acronym) and the Education Councils System— require big consensus not only in the objectives, but especially in the strategies, which are the ones that defi ne how, where, and with which resources they will be executed.

The National Education Law in force, issued through Legislative Decree 12-91, still does not have the bylaw. Thus, the CNE and the Mineduc should promote the actions that allow updating the judicial education framework. Regarding the coverage policy and strategies, it is necessary to include mechanisms to close the gaps which affect the children and adolescents of the rural area, of historically postponed departments, of indigenous populations, of women, of people who live in poverty, and of those who have differentiated abilities.

Education technology has an extraordinary potential to expand the production and reproduction of knowledge through formal and non-formal education. From the right to education approach, coverage cannot be conceived as the access to a school that does not have the infrastructure, the staff, and the adequate equipment for realizing the educational event. The censuses on school infrastructure and the monitoring done by civil society through the «Big education campaign» (following up on the support services such as school food, provision of textbooks, didactic suitcase, and others) must serve to formulate and implement strategies that allow services to be of quality and that they be received timely. It is important to consider the consolidation of effi cacious and transparent systems in executing these supports and subsidies to the teacher and student populations.

The discussion of the policy and its respective strategies for intercultural bilingual education requires considering various aspects: revision of the pedagogical model in light of the indigenous populations’ demands and needs and successful experiences in other latitudes; pre-service teacher training with attention to multilinguism and the diversity of linguistic competences which vary from monolinguism in Maya languages to monolinguism in Spanish, including different expressions of bilinguism; vertical extension to complete primary, lower secondary, and upper secondary. It is necessary that EBI —as known in the Guatemalan education system — be rethought and redirected in light of continental and world trends that have led to a bilingual intercultural education (EIB, Spanish acronym) which gradually abandons its adjacent, temporary, and compensatory character to advance with strength and renewed vision towards a new approach. In this, the experience of an equitable and quality education is provided, with full access to the collective right of the cultural and linguistic differences in a diverse society.

Since the Paritary Commission worked on the approach and publication of the Educational Reform Design in 1998, the State has managed to give continuity to the curriculum


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transformation. A conceptual framework of the curriculum transformation was elaborated, the national base curriculum (CNB, Spanish acronym) of the initial levels, preprimary, primary, lower secondary, and some careers of upper secondary was designed, and the implementation was approved through the corresponding ministry decrees. Nevertheless, the adequate application of the CNB in the classroom is still pending; dissemination and training are still missing, particularly to teachers recently incorporated into the system, as well as accompanying and monitoring the implementation process and its results.

Education quality improvement, currently evaluated through reading and mathematics profi ciency tests to students, constitutes one of the most relevant objectives of the education policy to elevate new Guatemalan generations’ human development. Beyond the fi rst generation education reforms (universal preprimary, primary, and others) the country requires the continued implementation of second generation education reforms, such as substantive quality improvement, pertinence, and secondary education transformation.179

4.6 The State’s role in democracy

Operational dimensions in which the State strengthens democratic practices are varied. Consequently, it is not necessary here to make theoretical considerations, but to refer to aspects such as the following:

Reforms to the electoral and political parties system

Some important, yet insuffi cient, amendments were done to the original Electoral and Political Parties Law (1985) in 2004; the 2006 reform only introduced rectifi cations. The Congress of the Republic has prepared some proposals that include numerous reforms, yet to be approved, some are important in four areas summarized next: a) political parties system: aims to control the creation of parties, proposing they have at the time of their enrollment 0.04% of members vis-a-vis the number of citizens in the last electoral roll. b) Electoral justice: refers to various aspects, including electoral campaigns fi nancing, increases the State allotment from USD 2.00 to USD 3.00 per vote received and sets forth norms to supervise the use of external resources. c) Electoral process area: proposes a fi xed number of 140 congressmen, of which 112 would be elected through the electoral district system (every department) and 28 through the national list system (equivalent to 25.0% of the total of district congressmen). d) Supreme Electoral Tribunal and its organizations: indicates the importance of strengthening its independence with a

greater annual Budget and establishes new responsibilities such as the creation of the Civic and Electoral Training Institute (Ince, Spanish acronym) and the Political Studies Multipartisan Institute (Imep, Spanish acronym) to encourage citizen participation. It also proposes to regulate all aspects related to referendums, to be congruent with the respect to the Municipal Code and ILO’s Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries.

Despite the numerous reforms to the Electoral and Political Parties Law, there are four aspects which need to be emphasized: a)transparency in electoral fi nances; b) reduction of the number of Congressmen (numeric balance lower than the current one and close to 80-120 congressmen) and establish quality requisites for candidatures; c) district or national representation?: debate on the advantages of the national majority systems and/or municipal districts representation for democracy and citizenry; d) regulate changing parties (to make party disloyalty diffi cult); e) limit congressmen and mayors reelection; f ) personal identifi cation document (DPI, Spanish acronym); g) changes in mayors elections; h) quotas for women and indigenous populations as an affi rmative measure that has contributed in other countries to reduce the democratic political participation defi cit.

The Urban and Rural Development Councils System (SCDUR), another participation modality

SCDUR constitutes a new and challenging universe of citizen participation, a modality which, if it works well, strengthens democratic life. It has characteristics regulated at the national, department, municipal, and local levels. It is not based on previous historic experiences, since authoritarian governments did not stimulate these modalities of political life which requires, among other conditions, an active and more independent citizen, with administration technical abilities, and a tolerant and democratic mentality. Summarized, SCDUR consists of modern relationships between the central power, its regional mediations, and local societies as the base.

It is indispensable to break the clientele dynamics which politicians tend to practice in terms of Budget decisions for the department and municipal councils. National policy decisions need to be linked to their regional and local implementation. For that, it is recommended among others: a) design, approve, and apply transparency procedures with supervision and citizen audit mechanisms, b) reestablish the functional connection and national public policies

179 See more details in Cien/ Usac, Efpem/Prodessa/Flacso-Guatemala (2010).

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harmonization with investment programs of the Codede, with Conadur and, in turn, the connection of the latter to the Congress in the national Budget formulation process; c) defi ne and strengthen the legal schemes of participation of Conadur in the Budget elaboration process in its capacity as guarantor of investment public policies which respond to territorial decisions of the Councils; d) citizen training for participation and good management of public issues; and e) reestablish the connections among Cocode, Comude, and the sector machinery of the Ministries and Secretariats of the central Government.

4.7 Poverty and gender inequality

The idea of justice and equity is in the base of human development paradigm which demands, on one hand the elimination of fundamental lacks which many persons suffer currently, and on the other hand, reducing inequalities in those factors that propitiate or diminish the human being’s realization. Poverty is an extreme limitation for human development, ethnic and gender inequalities are others. The State has an important role in reducing poverty and inequality through long-term national policies and strategies. Following some proposals are outlined based on recent UNDP’s and ECLAC’s proposals.

In the poverty topic, it is proposed to build a social pact to advance a new equation among the State, society, and market for the search of an inclusive development. As a result of this pact, formulate, implement, and evaluate a long-term development national policy which articulates strategies directed to combat poverty and reducing inequalities within an integral outlining which searches continuous human development of the population with special attention to the rural area, indigenous populations, and women. In this line of work, it is important to give follow up to the Rural development national policy and to the law initiative on rural development. Conditional cash transfers social programs have contributed to reducing poverty in various Latin America countries. These programs, one of which began in Guatemala in 2008, must meet certain basic characteristics for effi ciency and effi cacy: a) the corresponsibility must be met effectively; b) the quality of the services provided in terms of health and education must contribute to increase employment opportunities and productivity of the benefi ciaries; c) once the period anticipated for receiving the conditional cash transfers ends, youth benefi ciaries (graduated from upper secondary) must have effective productive employment opportunities and; d) the benefi ciaries selection must respond to clear and transparent criteria. According to the socio cultural characteristics of each country, as in the case of Guatemala, linguistic and cultural pertinence of the public

services must be taken into consideration as well as other commitments towards indigenous populations assumed by the State. The long term is also relevant.

Regarding gender equality, measures must have an integral character which includes all the aspects of the political, economic, social, and cultural life which offer opportunities of access to education, health, economic resources, decent employment, and new values of equity which allow the full enjoyment of women’s human rights. Likewise, the gaps that affect rural and indigenous women must be addressed. Since the submission of the fi rst proposal of policy in favor of women in 1990 until the submission of the Promotion and integral women’s development national proposal (PNPDIM, Spanish acronym), and the 2008-2023 Opportunity Equity Plan (PEO, Spanish acronym) in 2009, almost two decades of efforts to institutionalize a long-term instrument have passed. It is necessary to give continuity to the Policy between different government periods, striving for a technical consistency in its implementation, constant monitoring, and periodic evaluation, and developing multiannual operational plans for the strategic actions in each government period. This implies articulation and inter-institutional coordination actions and strengthening the women’s mechanisms from the local to the national level, as well as formulating budgets with a gender approach which allow evaluating the State’s contribution to reducing the gap between men and women.

5. Towards a plural State

The conclusion derived from the contents of this Report is that the possible and necessary State in Guatemala, in this time of threats to its own existence, can only be a democratic State, thus, Rule of Law, directed by a prestigious political cohort because of its abilities and honesty, and supported by a profound citizen presence, which is called in UNDP’s language a democracy of citizens. Or to reiterate the denomination used so many times a strong State because of its legitimacy and effi caciousness. Human development does not only become a reality in the dimensions measured by the HDI, education, health, and income. The State must also promote policies which open new and equal opportunities to prosper, freedom to choose, stimulate capabilities among and for all. In various ways, human development leads to a plural State because expanding opportunities and capabilities will benefi t indigenous populations, until now relegated and excluded.

The plural State is thought as a new State whose long-term construction may begin now. For that, several steps are decisive; ones should be taken from the State and others in the interior of society. It is required to adequately resolve the effects of the colonial roots which are in the origins of


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the State, likewise, assume with all its consequences that the nation is not homogenous, that it has an indigenous population with different cultures. Both reasons are mutually conditioning. The construction of a plural State can only happen with the weakening of the colonial roots which are manifested in the subordination and exploitation relationships notoriously unfair with the indigenous and which have resulted in a historical condition of exclusion.

It must be understood that the argument in favor of the plural State alludes to a constitution process of a new, modern, democratic power which requires full indigenous’ and non-indigenous’ citizenship. The elimination of the colonial roots and racism and discrimination culture are not only problems of time, but also of power and confl icts. The plural Sate, as analyzed in the 2005 NHDR, is a power capable of representing and expressing the multiple interests which originate and move in society. Plural power means something different than what «creole» or «ladino» powers were and diverse of what could be an «ethnic» or «indigenous» power. It is plural, among other characteristics, because it is a multilingual State which applies judicial pluralism, administers tensions between collective (indigenous populations’ rights and other groups’ rights) and personal rights (universal).

The current State may boost measures that contribute to decrease inequalities and indigenous exclusions, such as the following: a) substantially elevate the work and living conditions of the indigenous populations, health conditions, housing, and a secure and healthy environment; b) recognize the judicial system of the indigenous populations, judicial pluralism and the corresponding practices, as well as ensure conditions of access to justice through hiring interpreters in indigenous languages and increasing the judiciary in predominantly indigenous zones; d) promote cultural pluralism and linguistic and cultural pertinence in the education and health systems; e) substantially improve indigenous participation in the direction of political parties and social organizations, in electoral processes, in public employment opportunities in technical and direction positions; f ) sanction racism and discrimination conducts, hidden or explicit, in work, school, and the social life; g) promote intercultural citizenry; h) evaluate intercultural bilingual education with the purpose of establishing the model the country should adopt according to the needs of

the indigenous populations and all Guatemalan population and ensure the implementation of the same in all Maya, Xinka, and Garífuna linguistic communities of the country; i) design and implement positive discrimination strategies that favor enrollment, permanence and completion of preprimary, primary, secondary, and tertiary education among the indigenous populations’ children and youth. All of these rights and opportunities must particularly be guaranteed for indigenous women, who continue to be until now the most dreadful example of social exclusions.

6. The State reform as an exercise for building citizenry

The exercise of outlining a reform process of this magnitude may serve both as counterweight to the dangerous moments of social fragmentation and institutional decay, and as learning by doing. It may also be useful for a process of identity and citizenry construction. Among the key elements which could be used are: a) proven trust building schemes to neutralize and overcome the enormous credibility defi cit being lived; b) a leadership that conjugates and does not divide, which should be collective and diverse, not unipersonal; c) a preparatory process in whose design, methodology and tentative contents a fi rst level of main and representative actors may be incorporated; d) a technical accompanying and maybe organizational and external management support which the State through the Government in offi ce could request the United Nations, because of its experience in national consultation dialogs; e) an effort to link regularly and in a special form indigenous people organizations, social organizations of the province and the capital metropolis, providing that the legitimacy of the participation emerges locally and horizontally.

In practical and concrete operative terms, it is about undertaking a national agreed-upon effort based on a minimum agenda, immediately comprehensible and felt by the population, with the will and concrete actions of fl exibility and eventual institutional transformation and, of course, reassignment of personnel and resources. Some elements to take into account for organizing and calling this effort are: the intermediation role between society and the State which the political parties should, but have not played and the discussion on Government’s participation.

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It is specifi cally proposed an agreed calling between institutions and recognized society representative organizations, with the Government’s participation (of the Branches of the State, where appropriate) for a citizen dialog exercise, probably differentiated according to the topics to be addressed as well as the urgency or not of its results, able to generate proposals of diverse approaches according to its importance, urgency and feasibility in time, and according to the settling in concrete agendas of the national work.

The great objective in this process is State modernization. From a diagnosis on the State, its operations and performance taking into account the analysis of reform proposals already agreed upon, as well as the evaluation of State reform experiences in other countries, a transforming Project focused on a shared vision of the desirable and possible State is proposed. This Report has proposed the need to transform the current State into a modern, democratic, strong (effi cacious, effi cient, and legitimate, with monetary resources, transparent, Rule of Law), plural State and promoter of human development. Guatemala: towards the State for human development is a call to the national debate on the State and the action for its transformation.

Synthesis 2009/2010 Human Development National Report102

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Glos

sary

Glossary

Agency is the ability to defi ne one’s own goals independently and to act from those goals. It is the persons’ capacity to act, and particularly, to participate in the decisions that affect their lives in the social context.

Human development is the process of expanding the freedom to reach valuable accomplishments. Namely, a process of expanding the persons’ group of capacities to reach valuable actions. The group of capacities includes options to reach reasonable ways of wellbeing, as well as the agency capacity. The development depends on the freedom persons have to make decisions and work towards key objectives.

Gender equity is the process of being fair to women and men. For this, it is necessary to take measures that decrease social disadvantages and differences that prevent women and men to act under equal conditions in all aspects of social, economic, political, and cultural life.

State is a group of social relationships of power, domination, and obedience (most of them sanctioned by the legal system) which is exercised over a human group, in a well-defi ned physical territory (boundaries) which essentially aims to establish order and integration.

Human development index appeared to the public life in 1990 as a succinct exercise for measuring three key dimensions of development: the possibility of a long life, educational attainment, and the availability of material resources. It is the average of the three mentioned dimensions and it may range between 0 and 1. The latter expresses the greatest progress in human development.

State density index measures the State density in three dimensions: presence of institutions at the municipal level, bureaucracy (number of employees per number of inhabitants) and central Government specifi c Budget for a municipality (amount of quetzales per inhabitant). A sub index for each of these dimensions is also formulated. The value of this sub index ranges from 0 to 1, where 1 represents the greatest relative density. The State density index (IDE, Spanish acronym) is the weighted measure of the sub indices.

Gender equality means that both women and men enjoy the same conditions to exercise their human rights and that they are free to realize their potential and personal capacities, as well as to make decisions without limitations imposed by the roles traditionally assigned to them by societies.

Gross Domestic Product (GDP) is the total production of all fi nal goods and services of an economy produced both by residents as by non-residents and considered independently of the nationality of the owners of the factors.

Gross Domestic Product (GDP) per capita is the gross domestic product (GDP) divided by the total population in a given year.

Citizen security is the protection of certain options or opportunities of all the persons —their life, their integrity, their patrimony— against a specifi c type of risk (crime) which alters suddenly and painfully the daily life of the victims.

Human security is the universal protection against violent or predatory crime.

Conditional cash transfer (CCT) is a social policy instrument focused on poor and extremely poor homes. CCTs are cash payments delivered directly and periodically provided that one or various conditions are met. Generally, the conditions that the benefi ciaries have to meet are regular school attendance, periodic visits to health centers, and in some programs, children’s nutritional status.

The 2009/10 Human Development National Report examines the role the Guatemalan State has played in promoting human development during the last 25 years. The fi rst section, which covers conceptual and historical aspects, addresses the emergence of the modern State, the decisive stages of the formation of the national Guatemalan State, and the relationships between the State and development. The second section analyzes the structure, bureaucracy, and the fi scal policy of the State. The density of the State is measured at the municipal level through a three-dimensional index (presence of agencies, bureaucracy, and Budget) and three compo-nents (health, education, and others). The results are compared to the human development index, poverty, and other indicators. The third sec-tion analyzes the role the State has played in guaranteeing persons’ real freedoms (security and justice), in promoting essential capacities (health and education) and agency (democracy), and in reducing poverty and inequalities (indigenous peoples and women). The fourth section pres-ents a proposal for the State’s transformation towards a plural State which promotes human development. Finally, the statistical annex provides up-dated data and indicators about economy, education, health, population, security, and State’s presence.

The Synthesis of the 2009/10 National Human Development Report in-cludes an abbreviated version of the eleven chapters of the Report. It is organized similarly to the Report in terms of its chapters. Likewise, the graphics, tables, and fi gures are placed as in the original. The purpose of this is to facilitate the relationship between the synthesis and the Report and to encourage reading the complete text.

SynthesisSynthesis2009/2010 National Human 2009/2010 National Human Development ReportDevelopment Report

Synthesis of the 2009/2010 National Human Development ReportSynthesis of the 2009/2010 National Human Development Report Guatemala:Towards a State for human development

Guatemala: Towards a State for human development

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