According to the World Justice Project, Guatemala ranks 96th out of 126 countries in the Rule of Law Index. Such a low position indicates that our State has low accountability, unfair laws, an barely open government, and few accessible and impartial mechanisms for dispute resolution.
In 2019, Guatemala had the task of changing this situation by improving the administration of justice. This was to be done through the election of new magistrates for the Supreme Court of Justice and the Court of Appeals. However, the weak rule of law and the lack of many aspects that support the proper functioning of any republic have led us to a constitutional violation.
Currently, we have a headless judiciary as the magistrates have not yet taken office; this led to the magistrates from the previous constitutional term having to take office extraordinarily so that justice could continue to operate.
The Role of the Constitutional Court
While Guatemala's position in the Rule of Law Index is not the responsibility of a single entity but rather a series of institutional deficiencies, it is nevertheless necessary to reflect on the actions of the highest court in constitutional matters and its historical duty.
The Constitutional Court (CC), whose essential function is the defense of the constitutional order, plays an important role in the justice system. As the body responsible for protecting and safeguarding constitutional principles, the CC is limited by the Constitution itself and by the Law of Amparo, Personal Exhibition, and Constitutionality. Its power is by no means unlimited.
In defending the constitutional order through its interpretations, the CC must also protect the rights and freedoms of Guatemalans. Its method of interpretation must adhere to the principles and norms that the National Constituent Assembly enshrined in the Constitution and the functions enumerated in Article 272 of the Constitution. Therefore, the CC has an enormous responsibility to guarantee the constitutional order without overstepping its functions.
Player or Referee?
The CC must always be an impartial referee, not just another player in the political arena.
This becomes very clear by taking as an example what has happened in the process of the postulacion commissions. Based on a series of amparos, the CC became an important actor in this process when it should not have been.
According to the Center for the Defense of the Constitution, there are various ways in which the CC has overstepped its functions. One of these is when, through a provisional amparo, it orders third parties to disobey a final judgment of the same Constitutional Court that is pending compliance. The Constitutional Court cannot go against the jurisprudence it has established over time.
Therefore, the provisional amparo granted in accumulated files 4251-2019 and 4862-2019 on September 16 represents a disobedience to the final judgment and pending compliance of accumulated files 4639-2014, 4645-2013, 4646-2014, and 4647-2014.
Why? In the latter, the CC established that “Once the magistrates of the Supreme Court of Justice have taken possession, they must also immediately proceed to the swearing-in of the elected magistrates of the Chambers of Courts of Appeals and other Courts of equal category, so that these officials may exercise the mandate that also concludes on October 12, 2019.” However, the provisional amparo granted in September of this year suspended the work of the postulacion commissions and made it impossible to have new magistrates on October 13. The constitutional term of five years for magistrates was violated. This is established by Article 208 of the Constitution. Furthermore, in an advisory opinion, the CC established that magistrates could continue in their positions after October 13.
Given this situation, the high courts of the country are in great disorder and adrift. These kinds of situations and decisions are what keep us in the worst positions in the Rule of Law Index.
In Conclusion
It is important to remember that the function of the Constitutional Court is to defend the constitutional order without overstepping its functions. By becoming involved as another actor in this process of renewing the Supreme Court of Justice and Court of Appeals with the postulacion commissions, the CC must be a referee, not a player. Its interpretations of the Constitution must not be partial or favor third parties, as this undermines the rule of law.
Now that the fate of justice is once again in its hands, the CC must act in defense of our Constitution. They have the task of definitively resolving the amparos that halted the election of magistrates. This must be done objectively and independently.