On April 14th of this year, the new magistrates of the country's most important Constitutional Court will assume office.

The decisions made by the new magistrates will be key to strengthening the Rule of Law.

Guatemala Íntegra, Guatemala Visible, and the National Civic Movement called for a high-level discussion on the importance of the election of magistrates to the Constitutional Court, in terms of transparency and objectivity. Additionally, the discussion addressed the relevance of alternability in power with professionals who possess sound judgment, impartiality, and republican values.

The experts invited to discuss this transcendental topic were:

• Roberto Ardón, Executive Director of CACIF
• Carmen Rosa de León, Director of IPADES
• Pablo Hurtado, Executive Secretary of ASIES
• José Echeverría, Executive President of MCN

How has the election of magistrates to the Constitutional Court unfolded?

Ms. Carmen Rosa De León began by noting that this process cannot be considered in isolation without taking into account what has happened in the country in recent years and the processes that have led to the capture of the State.

The expert explained that state capture is a phenomenon that has occurred in countries with transitioning democracies and economies. Consequently, this has led to the capture of the state by various interest groups and mafias.

Ms. De León stated that one of the foundations of this state capture is institutional weakness. This is how organized crime and interest operators can manipulate state decisions, the panelist explained.

In the expert's opinion, state capture has evolved over time. To demonstrate this, factors such as vested interests in the use of public resources, access to privileges, and the absence of separation of powers, which have led to a weakening of the rule of law, must be taken into account.

In conclusion, Ms. De León explained that all these circumstances lead to a flawed process, with many actors and vested interests reflecting this state capture.

We are currently facing an opaque process deeply intertwined with vested interests.

Carmen Rosa De León

The regulation of the process

On the other hand, Mr. Echeverría explained that to understand how the process has developed, it is important to consider its regulation. In the expert's opinion, it is necessary to evaluate the guidelines established by the Constitution and the Amparo Law and see whether they are being complied with or not.

In addition, three other elements must be considered: the precedents, external conditions, and institutional performance.

Regarding precedents, Mr. Echeverría said that it was necessary to consider how the Supreme Court of Justice is extraordinarily constituted.

On the other hand, regarding external conditions, he alluded to the arrest warrants that occurred during the process. Additionally, he mentioned considering the series of amparos that have been filed, Echeverría explained.

Regarding the amparos, he emphasized that it is important to stress that they have not been resolved. The motivation for the resolution or non-resolution of these amparos, and what is being awaited to grant or deny them, raises questions, he highlighted.

Mr. Echeverría emphasized that the guidelines of the Amparo Law and the Constitution have been legally complied with.

Finally, he said that it is possible to review how each institution has performed. However, to consider this, it must be stated that the process is based on pre-established norms in the law, and subsequently, the desired model can be discussed.

What should not happen is to only discuss the election model when the election is taking place because it is not the right political moment for such changes.

José Echeverría

What positive aspects of the current magistrate election process should be preserved?

For all four panelists, one of the positive aspects to highlight about this process is that this time, the election of magistrates has captured the interest of the citizenry.

For his part, Mr. Hurtado emphasized that this discussion and attention from citizens should be given to raise awareness about the role of the Constitutional Court.

For the expert, the function must be the preservation of constitutional order, and the process should be a mechanism to achieve those results. Magistrates must have a clear understanding of this function and perform it adequately, Hurtado emphasized.

On the other hand, Mr. Echeverría said that it is important to question how citizens can improve leadership so that once the magistrates of the next Court take office, they carry out the work they are called to do objectively and independently.

In turn, Ms. De León explained that the process has been closed to social auditing. Consequently, this has allowed interest groups and mafias to co-opt the process.

Finally, Mr. Roberto Ardón emphasized that this process has been very insistent on pointing out what kind of court we want and what kind of court we do not want. He stressed that a court of corruption, clientelism, captured by drug trafficking, or ideological is not desired.

Mr. Ardón highlighted that there has now been greater interest among lawyers themselves to put their names forward for consideration. Consequently, there is a greater conviction within the profession that this matter cannot be left to unsuitable professionals, he emphasized.

What is the ideal profile of magistrates needed for an independent and impartial Constitutional Court?

Mr. Hurtado explained that it is important to first refer to the requirements that are legally and constitutionally established. In the expert's opinion, these must be ensured, and then other elements can be added.

On the other hand, he mentioned that it is important to comply with what is established in article 152 of the Amparo Law. Regarding this, he emphasized that the elected magistrates must have experience in their respective fields.

Finally, he highlighted the importance that those designated must have constitutional knowledge. The expert emphasized that the constitutional scope aims to ensure that each state body and organization fulfills its mandate within the parameters established in the Constitution.

For his part, Mr. Ardón contributed 3 criteria to the discussion. The first is about the importance of the magistrate possessing sound judgment. In this sense, it is vital that the magistrate has conviction about the matter at hand. Therefore, they must be capable of defending it in the discussion they have with their colleagues, he explained.

As a second point, he highlighted the importance of having academic constitutional knowledge.

As a third and final point, he alluded to character and personality. In the expert's opinion, this is important to responsibly and decently carry out one's judicial office. Furthermore, personality is vital for reporting pressures, whether internal or external, within the magistracy itself.

These are criteria that are not written in a law, but rather are based on common sense and reason. These criteria should be sought to determine the best choice among the panel of professionals aspiring to the constitutional magistracy.

What should be the role of the Constitutional Court?

In Roberto Ardón's opinion, each magistracy must have its own personality. The expert contributed two important elements to the discussion.

The first was independence from the interests of professional networks that seek to litigate and achieve certain results through pressure. On the other hand, he also emphasized that attention must be paid to conflicts of interest.

Attorney Carmen Rosa de León said that the process of electing magistrates should lead to a reflection on not using the court to resolve conflicts that society should face.

On the other hand, lawyer Echeverría added the element of the institutional nature of the Constitutional Court. The lawyer emphasized that the Court must assume the role of defending the constitutional order and transparently clarify the criteria it will use to rule.

Finally, lawyer Hurtado concluded by emphasizing that the role of the Constitutional Court should focus on two aspects: first, the control of constitutionality. The Court must always preserve constitutional supremacy and the values established by the constitution itself.

On the other hand, he said that magistrates should seek to be ungrateful and shameless. On the one hand, ungrateful, because they should not have to thank anyone for reaching the Constitutional Court. As for shameless, he explained that they should resolve without seeking public applause and solely in accordance with the law.

How can the Constitutional Court contribute to the Rule of Law?

Lawyer De León explained that for the strengthening of the rule of law, there must be independent magistrates. It is important to have a legitimate and balanced court in its opinions to reach the best conclusion according to different interpretations, she stressed.

The expert said that it is important that not everyone thinks alike and that someone seeks to be favored through this. In lawyer De León's opinion, it is in this case that operators and not magistrates are sought, she emphasized.

On the other hand, lawyer Echeverría alluded to the transcendental role of the Court in ensuring the constitutional order of the country and consequently the Rule of Law.

In the expert's opinion, it is important to demand accountability from the next magistrates of the Constitutional Court.

All actions of the new magistracy must be subject to the law to enjoy the trust of the citizens, he concluded.

The role of the Court

Lawyer Hurtado emphasized that the raison d'être of the Constitutional Court is linked to the Rule of Law and institutionalism. Consequently, it is very important that diverse opinions and resolutions are respected, even those that are not shared, he emphasized.

On the other hand, the expert said that it is fundamental that the new Constitutional Court has clarity in its scope of action.

Finally, lawyer Ardón explained that the constitutional court must play its role in defending the guarantees contained in the dogmatic part of the Constitution.

He also added that the Court is not called to anything more than to be the controlling power of constitutionality and of respect for the norms set out in its organic part.

Lawyer Ardón emphasized that for the Court to contribute to the strengthening of the Rule of Law, it must stop being seen as the arbiter for everything.

What is expected of the new magistracy?

Lawyer Ardón added 4 elements about what is expected of the new magistrates to guarantee transparency and integrity.

First, that there is a method of legal interpretation, referring to the fact that it is not possible to have different resolutions for two identical cases. Second, it is important to have clarity in their internal procedures.

As a third point, he mentioned equal treatment of the parties, explaining that there are people who wait for years for an initial knowledge of the case, while other cases are known in hours.

Finally, he said that judgments must be self-explanatory. When a judge makes a good judgment, their technical reasoning is impeccable and self-explanatory, he stressed.

On the other hand, lawyer De León emphasized that the defense of the Rule of Law and the Constitution of the Republic is important. However, the expert stressed that the way magistrates are appointed must be modified.

For his part, lawyer Hurtado said that the Court must fulfill its mandate by ensuring that each state body and public entity does what it is supposed to do.

Finally, lawyer Echeverría emphasized that the Court should not become a fourth power without checks and balances.

In the expert's opinion, it is necessary to evaluate how magistrates act to define what the role of the Constitutional Court should truly be.