The key number regarding the Constitutional Court (CC) is five.
The Constitutional Court is composed of five principal magistrates and five alternate magistrates, and all of them serve for five years. These magistrates have an important task as they are part of a collegiate court whose essential function is the defense of the constitutional order. However, it does not exercise unlimited power; the power of the CC itself is delimited by the Constitution. The CC cannot act ex officio, and its functions are established in Article 272 of the Political Constitution of the Republic.
Composition of the CC
It is important to mention that each magistrate is appointed by one of the following institutions: by the Supreme Court of Justice (CSJ); the full Congress of the Republic; the President of the Republic in the Council of Ministers; the University of San Carlos; and by the Assembly of the Bar Association (CANG). Along with the appointment of the principal, the respective alternate is also appointed.
The current magistrates, who began their term in 2016, must conclude it on April 14, 2021.
Balanced or concentrated power?
Balanced power lies in using the forms and mechanisms indicated by the Constitution to exercise public power. On the other hand, concentrated power exercises public power by ignoring these constitutional controls. With several vacant magistracies in the Constitutional Court, the question arises as to whether jurisdictional power is being concentrated in the remaining magistrates. However, it is necessary to comply with the Constitution for it to be complete.
The appointment of Consuelo Porras's replacement
Since 2018, after the departure of Consuelo Porras (who was appointed as an alternate magistrate by the Supreme Court of Justice), the CC has had a vacant alternate magistrate position. The CSJ appointed an alternate, but that person resigned days later. Subsequently, another professional was appointed. The CSJ elected Conrado Reyes as an alternate magistrate. However, his appointment was challenged by the Myrna Mack Foundation, and the Constitutional Court left the appointment of Consuelo Porras's replacement suspended for two years. This was despite the fact that the appointment of magistrates is unchallengeable as established by the Law of Amparo, Personal Exhibition, and Constitutionality.
Article 156. Challenge to the appointment of Magistrates. The internal procedure for the appointment of Magistrates by the full Supreme Court of Justice, by the full Congress of the Republic, and by the President of the Republic in the Council of Ministers is not challengeable.
Recently, on September 25, 2020, the CC issued a ruling that definitively suspended the election of Conrado Reyes as an alternate magistrate. This means that the Constitutional Court took two years to resolve this amparo, leaving the position of alternate magistrate appointed by the Supreme Court of Justice vacant for almost half the time a magistrate should be in office. Now, in 2020, the CSJ must again hold an election to fill the alternate magistrate position that corresponds to it.
2020
On the other hand, on September 5 of this year, Guatemalans began the day with the unfortunate news that Magistrate Bonerge Mejía had passed away. With the death of the magistrate, the position of principal magistrate appointed by the CANG became vacant. Until a new principal is appointed or elected, the functions will be covered by the alternate appointed by the same body, attorney María Cristina Fernández, always maintaining her status as alternate.
Given that the death was notified to the CANG, it has no other constitutional obligation than to call for an election. It must not incur in non-compliance with duties, which could be a crime or lead to unjustified delay in fulfilling the obligation to issue the call.
The dismissal of Magistrate Aldana
It is worth noting that as of today, there is no magistrate appointed by the Supreme Court of Justice actively in office because the principal, Neftaly Aldana, has been absent for several months due to health reasons. On October 2, Magistrate Aldana's family submitted a letter to the CC requesting his suspension from office.
This caused a rather clear division among the magistrates of the Court. On several occasions, the full court of magistrates met to discuss Magistrate Aldana's situation, and no agreements were reached to declare Magistrate Aldana's dismissal. Magistrates Dina Ochoa, María de los Ángeles Araujo, and Magistrate Henry Comte issued a statement expressing that Magistrate Aldana's dismissal should be accepted and the process of electing magistrates appointed by the CSJ should begin. In said statement, the magistrates made it clear that it is the responsibility of the full CC to immediately recognize the dismissal from office, as it is the legally and ethically correct path.
The Law of Amparo, Personal Exhibition, and Constitutionality establishes the causes for dismissal in Article 161. Among these is "incapacities inherent to judicial officials" which can be applied in this case.
When a constitutional judge who is a member of the court is incapacitated from performing their duties, dismissal must be declared, which would result in a vacancy in the position and, if there is no alternate to cover it, a request must be sent to the Supreme Court of Justice to appoint a principal magistrate and the pending alternate to complete the term.
Only 7 out of 10
The result of these tragic events has led to the composition of the Constitutional Court being affected. Out of the 10 magistrates the Constitutional Court should have, there are only 7 in office. The situation is worrying because it creates an irregular composition compared to what is established in the Constitution. This means that the CC is operating with the exact number of magistrates needed to hear cases of unconstitutionality against the President, Vice President, CSJ, or Congress. If such issues had to be heard, Article 150 of the Law of Amparo, Personal Exhibition, and Constitutionality would not be met. This article states that the "members are increased to seven, with the other two Magistrates being chosen by lot from among the alternates." If there are only 7 magistrates, the drawing of lots for alternates to join cannot take place.
Failure to respect the proper composition of the Constitutional Court means not fully safeguarding the constitutional order. The Constitution establishes that the court must be composed of all magistrates from the five institutions responsible for appointing them.
The highest Constitutional Court must be fully integrated to ensure citizens due, independent, and legitimate use of public power and should not lend itself to manipulations that seek to maintain power quotas not regulated within the constitutional framework. Having a complete magistracy in the Constitutional Court is important and vital for a functioning justice system in Guatemala.