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GUATEMALA |
BONILLA,
MONTANO & TORIELLO |
A procedure for the election of the future judges of both the Guatemalan Supreme Court of Justice and the Court of Appeals is currently being held in Guatemala. Given its importance, the issue gets hold of the attention of lawyers, the media, and the different institutions and entities participating in the nation’s life.
The Guatemalan constitutional system regarding this election has particular and interesting characteristics clearly differentiating it from the procedure followed in other Latin American countries.
The nomination of the justices of both courts is divided into two phases, as follows:
The first, by which two Nomination Committees develop a list of 26 nominees to the Supreme Court of Guatemala; and a list of 144 nominees to the Appellate Court. The second stage is conducted in the Congress of Guatemala, and from the lists presented, Congress elects 13 judges to the Supreme Court of Justice, and 72 proprietor justices, and an equal number of alternate justices to the Court of Appeals. Such elections require the vote of two thirds of all members of Congress.
The Nomination Committee for nominees to the Supreme Court of Justice are: one representative of the rectors of every university in the country, who acts as chairman; the deans of the Schools of Law or Legal and Social Science (currently seven) of the various universities; an equal number of representatives elected by the General Meeting of the Guatemalan Bar Association; and the same number of representatives elected by the proprietor judges to the Court of Appeals.
In regard to the Committee responsible for producing the list of nominees to justices to the Court of Appeals, it is also chaired by the representative of one of the rectors of the universities of the country; and is completed with the same deans and an equal number of justices elected by the Supreme Court of Guatemala.
The Nomination Committees conduct a thorough examination of the profile of all the nominees, as well as an assessment of their judicial experience and/or professional practices, academic qualifications, publications, qualities, and other circumstances. After this screening process, each Committee selects the nominees with the favorable vote of two thirds of the members of the respective Committee.
Election
by Congress
After the conclusion of the work conducted by the Committees, the lists of nominees are submitted to the Congress of Guatemala to elect, exercising its sovereign power, the potential justices, i.e., 13 justices for the Supreme Court of Justice, and 72 proprietor justices and an equal number of alternate justices for the Court of Appeals. If there is any temporary vacancy in the Supreme Court of Justice, the Chairman of one of the appellate divisions is called to fill such temporary vacancy. In the event of a definite vacancy, Congress will elect the substitute justice.
The justices of the Supreme Court will elect the Chief Justice among themselves, with the vote of two thirds of its members. The tenure in office of the Chief Justice will be one year, and may not be reelected during such period of the Court.
Qualifications
to be a Justice of the Supreme Court of Justice and of the Court of Appeals
The qualifications to be elected justice of the Supreme Court of Justice are: to be a natural born Guatemalan citizen, over 40 years old, of moral standing, with his/her constitutional rights, an active member of the Guatemalan Bar Association, and to have concluded a complete term as justice of the Court of Appeals (or of the bench of judges with the same capacity) or to have practiced as an attorney at law for more than ten years. The same requirements are necessary to become a justice of the Court of Appeals, except that no person shall be a justice who shall not have attained to the age of 35 years; or who shall not have acted as an examining magistrate or practiced as lawyer for more than five years.
Conditions of the Administration of Justice
The Political Constitution of Guatemala, in order to create the essential conditions for the administration of justice, provides that the Judicial Branch shall have such guarantees, without which a justice system is not likely to be conceived, providing individuals the legal certainty that the judicial decisions are objective and impartial, among others: independence of criteria based on the power to judge; the promotion of the enforcement of the rulings; functional and financial independence; non-removal of judges and magistrates, as well as the absolute exclusivity of the jurisdictional function by the Supreme Court of Justice and any other courts determined by law.
Ultimate
Authority of the Constitution
One of the main principles informing the Guatemalan law is that of the constitutional ultimate authority, implying that the Constitution is at the top of the legal system, and the Constitution, as the highest law, is binding for those ruling and those ruled, for the consolidation of the rule of law. Such super-legality is acknowledged in several precepts, providing that any government laws and provisions, or any others reducing, restricting, or distorting any rights guaranteed by the Constitution shall be null ipso-jure; no law may contradict the provisions of the Constitution, and any laws either violating or misrepresenting its mandates shall be null ipso-jure; furthermore, the courts of justice shall, in any resolution or ruling, as a duty, observe the principle that the Constitution prevails over any law or treaty.
Right
of a Special Form of Impeachment Proceedings for both Justices and Judges
The special form of impeachment proceedings operates as a guarantee to preserve certain officers against any tendentious or malicious actions, alleging criminal offences arising out of their conducting of a previous case or cases. Through it, the appropriate authority hearing such proceedings must conduct a series of formalities that may put it in such conditions as to caution whether such proceedings are included within the legal scope, and if may be imputable to the accused. This appropriate authority, after the exercise of the legal formalities to attain such objectives, is responsible for determining by resolution the existence of such criminal charges, which are essential elements to declare that the accused must be liable for such charges in a formal process.
The Political Constitution vests powers upon the Congress of Guatemala either to overrule or to allow bringing suit against the President of the Judicial Branch and against the Justices of the Supreme Court; and confers powers on the Supreme Court in connection with any other justices and judges.
Term in Office for Justices and Judges
The term in office for any justices and for the examining magistrates shall be five years, and justices may be reelected, and the examining magistrates may be appointed again. During their tenure in office, they may not be removed or suspended, other than in such events and with the formalities established by law. Not removal from office means the stability and confidence any officer should have that he/she will not be removed from office unless all formalities and causes established by law shall have not been followed; the reason is to maintain an independent criteria and impartiality that are characteristic of the title. Of course, such not removal from office envisaged in the Constitution means that during their term of appointment to office, the officers cannot be removed except in such events and with the legal formalities.
II. CONSTITUTIONAL COURT
The Political Constitution, effective 1986, established a Constitutional Court as a court of exclusive jurisdiction with the purpose of defending the constitution. That is because the Constitution is the genesis of the legal system, and the regulating principle of any other legal sources. The reason for the validity of the set of laws results from one single basic rule, i.e., the Political Constitution of Guatemala, with a supremacy acknowledged in its own wording, and as a corollary, no authority of the State has higher powers or authority than such granted by the Constitution. In the event any general legislation, regulation, or provision may have a total or partial unconstitutional flaw, the Constitution provides that the respective actions be set forth directly with the Constitutional Court, and such court, by exercising the powers vested upon it, shall elucidate whether or not to accept the alleged claim.
Members
of the Constitutional Court
The Constitutional Court consists of five proprietor justices, and each proprietor justice shall have his/her respective alternate. When hearing any unconstitutional matters or injunction matters against the Supreme Court of Justice, the Congress, the President or Vice-President of the country, the number of its members shall be seven, being the other two justices chosen by drawing among the alternate justices. The term in office of the justices shall be five years, and they are appointed as follows:
a) One justice appointed by a plenary meeting of the Supreme Court of Justice
b) One justice named by a plenary meeting of the Congress of Guatemala
c) One justice selected by the President of Guatemala in Cabinet
d) One justice designated by the Superior University Council (state university) of the San Carlos University of Guatemala
e) One justice nominated by the Meeting of the Guatemalan Bar Association
Simultaneously with the appointment of the proprietor justice, the respective alternates will be designated.
Qualifications
to become a Justice of the Constitutional Court
a) A natural born Guatemalan citizen
b) An active member of the Guatemalan Bar Association
c) Of good standing
d) At least 15 years as a professional graduate
The justices of the Constitutional Court have the same privileges and immunities as the justices of the Supreme Court of Justice.
The
Chief Justice of the Constitutional Court
The same proprietor justices hold the office of Chief Justice of the Constitutional Court in a revolving manner, in terms of one year, commencing with the eldest justice, and following in descending chronological order.
Some
duties of the Constitutional Court
The objective of the Constitutional Court, as mentioned before, is the defense of the Constitution. Among other things, the following are some additional duties:
a) “To hear in exclusive instance any objections filed against general laws or provisions, whether totally or partially objected as unconstitutional.”
A direct unconstitutionality action pursues that the legislation is maintained within the limits determined by the Political Constitution, excluding from the legal system any rules that are not according to it, which are null with “erga omnes” effects, i.e., regarding any others. Due to this depurating function, the Court is regarded as a negative legislator. In order to establish any incompatibility with the law and the Constitution an eminently legal analysis must be conducted, and an unconstitutional matter shall be declared only when the contradiction with the Constitution is obvious, and there are sound and reliable grounds to do so.
b) “To hear in exclusive instance as a Special Court of Injunction, any injunctions brought against the Congress of Guatemala, the Supreme Court of Justice, the President and the Vice-President of Guatemala.”
c) “To hear the appeal of all injunctions issued or granted by a court of justice.”
The exercise of the duty in paragraph c) above has caused an excessive workload for the Constitutional Court, as it is the only court of appeals for injunctions that sometimes are filed only for the purpose of delaying judicial and administrative procedures.
d) “To issue an opinion on the constitutionality of any treaties, covenants, and bills, upon request of any Government Branch.”
e) “To act, issue an opinion, rule, or hear any matters within its power as established in the Political Constitution of Guatemala.”
In compliance with this rule above, the Constitutional Court defended the Guatemalan constitutional order in 1993 when the then President of Guatemala violated the Constitution by canceling Congress and replacing the justices of the Supreme Court of Justice. The Constitutional Court at that time by virtue of its own office, declared the nullity of such acts, and with its intervention contributed to the resignation of that President, and to the restoration of the constitutional order, and established the period of time within which the Congress should elect the citizen that should conclude the presidential term, as it actually occurred.
This
article has been written by Jorge Rolando BARRIOS, Esq.
Should you have any doubt, please contact: jrbarrios@bonilla.com.gt
