The appointment of magistrates to the Constitutional Court (CC) in Guatemala is an event that tests the five institutions responsible for their election (Congress of the Republic, Supreme Court of Justice, President in Council of Ministers, Superior University Council of the University of San Carlos, and the Guatemalan Bar Association). 

The Constitutional Court plays an important role in ensuring that the Constitution is upheld and in defending the Constitutional order, thereby strengthening the Rule of Law in the country. The magistrates who make up the Court must be suitable, capable, and independent to "... contribute to ensuring that the dynamism and the concurrence of interests, objectives, and values inherent in political life are maintained within constitutional parameters and limits.¹"

For this reason, the National Civic Movement believes that to consolidate a democratic Republic and strengthen institutionality and the Rule of Law, an orderly integration, adhering to existing norms, must be guaranteed. This includes respecting that processes are carried out within the parameters and deadlines established by the Constitution. Furthermore, in order to imbue the appointment of magistrates with credibility and trust among citizens, we have encouraged responsible institutions to conduct transparent and public processes. One of the important elements for transparent appointments is to have tools to evaluate magistrate candidates. Therefore, an ideal magistrate profile is a tool to ensure that the chosen candidates are the best and most capable professionals for the position.

Basic Requirements

These are found in the Political Constitution of the Republic of Guatemala (CPRG) and the Law on Amparo, Personal Exhibition, and Constitutionality (LAEPC).

According to Article 270 of the CPRG and Article 151 of the LAEPC, magistrates must comply with:

The LAEPC also includes special requirements in Article 152:

Article 152. Special Requirements. "The Magistrates of the Constitutional Court, in addition to the requirements contemplated in the previous article and which are common to all of them, shall preferably be chosen from among persons with experience in public service and administration, magistracies, professional practice, and university teaching, depending on the State body that appoints them."

These requirements serve as a parameter to determine who can and cannot apply. Those who do meet these minimum requirements must also comply with what is established in the ideal profile of a CC magistrate. Therefore, the ideal profile of a magistrate should not be considered as merely fulfilling the basic requirements of constitutional laws. It is what is additionally expected of the appointed magistrates.

Recommended Ideal Profile

Among the recommendations for best practices made by the National Civic Movement for the CC election process, it is included that the institutions responsible for appointments develop an ideal profile and make it public. As one of the main instruments for evaluating candidates, the profile must be clearly defined from the beginning of the process. It should also be published so that applicants and citizens know what is expected of those appointed as magistrates of the Court, as well as its usefulness as a parameter for qualification and election of magistrates by the responsible institutions.

The publication of an ideal profile by institutions is not a legal requirement in this process. Therefore, its creation is an exercise in transparency that fosters trust and provides order to the qualification and election they will carry out regarding the applicants. Since they are not obliged to do so, it is likely that the institutions in charge of appointments will not develop a profile.

Why can an ideal profile for Constitutional Court magistrates be an important citizen tool?

It is important to establish, from a citizen's perspective, what kind of magistrate is ideal to occupy such a high-level magistracy. At the same time, this will allow citizens to contrast the actions of magistrates with what is expected of them.

The ideal profile must include elements that ensure a Constitutional Court adhering to the Rule of Law. It should also include elements such as independence and impartiality; honorability; legal preparation and knowledge; analytical skills and abilities; as well as a commitment to protecting individual rights and the democratic and republican values of the constitutional order.

1. ​Independence and Impartiality

One of the central objectives to guarantee clean justice is judicial independence. For this, magistrates must not only be independent in the exercise of their functions but also appear to be independent. This means that they must be solely subject to the Constitution, laws, and the Law; they must not respond to influences, pressures, or interferences of any kind².

Independence can be viewed through two dimensions: internal and external³. Internal, linked to impartiality, suggests that judges or magistrates perform their duties free from their own biases. They must act objectively and guarantee citizens' rights. On the other hand, external independence refers to the fact that magistrates should not succumb or yield to rewards, recognition, fears, or pressures from other individuals or groups. Verifying independence must go beyond simply inquiring into a person's employment history; it must involve studying the candidate's past rulings and actions (if they were a judge or magistrate) and analyzing whether their decisions are consistent with laws and the Law and not consistent with particular interests.

In the case of the Constitutional Court, the court is independent of other state bodies. Magistrates do not represent the institutions that appoint them. Consequently, their judicature is independent of those institutions or powers of the State.

It is important for legitimacy with citizens that magistrates make decisions free from pressure, while also being and demonstrating an appearance of independence.

2. ​Honorability

A quality that must stand out among magistrates, administrators of justice, is their honorability. A magistrate must have an irreproachable conduct record, being free from professional, ethical, and judicial sanctions⁴. Their personal and professional behavior must always strive for an interpretation aligned with laws and legal principles to demonstrate a stance in favor of the correct application of justice. Likewise, within the scope of their professional practice (academic, administration of justice, or professional practice), they must be recognized by their colleagues as a suitable person with the capacity to hold the position. This endows both the magistrate and the institution with honor and legitimacy.

The issue of honorability has been a central point of discussion in recent events surrounding the appointment of magistrates and the election of courts. It is necessary to generate more objective ways to verify "recognized honorability," whose lack of a clear definition in the laws, due to it being a concept subject to current times and customs, can generate disagreements regarding society's perception and/or stance around a candidate. The lack of consensus around "recognized honorability" can make its application a manipulable element.

The honorability of high court magistrates is an important parameter that lends greater credibility to the rulings issued.

3.​ ​Preparation and Legal Knowledge

Magistrates must demonstrate their academic and professional competence, as much of their ability to implement the law depends on their legal knowledge⁵. This must be specialized to protect the constitutional order and defend the Constitution. They must have adequate legal knowledge to be able to make objective and sound decisions, without misinterpreting laws or jeopardizing independence and impartiality.

4. Analytical Skills and Abilities

A Constitutional Court magistrate must have a high level of legal reasoning and analysis. Therefore, they must be able to demonstrate these analytical skills to justify their final decisions and express them in both written and oral form⁶.

A well-prepared and capable magistrate must possess a high level of legal analysis, as this skill is indispensable for evaluating the facets of a case and considering its future repercussions⁷. This is of utmost importance since the rulings of the Constitutional Court can become jurisprudence. Article 43 of the LAEPC states that: "The interpretation of the norms of the Constitution and other laws contained in the judgments of the Constitutional Court establishes legal doctrine that must be respected by the courts when there are three consistent rulings from the same Court. However, the Constitutional Court may deviate from its own jurisprudence, providing reasons for the innovation, which is not binding on other courts, unless three successive consistent rulings are issued in the same sense."

5. Commitment to the protection of individual rights, republican and democratic values of the constitutional order.

The actions and decisions taken by magistrates can increase or decrease the public's trust⁸ in the Court. Therefore, there must be a commitment to defending the basic rights and freedoms of all individuals⁹. Demonstrating this should go beyond simply accumulating diplomas in human rights, as these do not accredit preparation and capacity to defend the constitutional order. The legal knowledge and analytical skills required to defend the Constitution are demonstrable through the quality of past rulings or cases handled by the candidate. Furthermore, it is important to consider the factor of consistency, as this demonstrates that their actions are the same in protecting access to justice and the individual rights of Guatemalans in all cases.

Likewise, they must demonstrate a commitment to the republican and democratic values established by the Constitution, since the Court must comply with them without exceeding its functions. It is necessary for the magistrate to be aware that they have a commitment to guarantee the institutionality of the Court¹⁰.

 

References:

1. GARCÍA-PELAYO, M. (2014). EL «STATUS» DEL TRIBUNAL CONSTITUCIONAL. Revista Española De Derecho Constitucional, (100), 15-37.
2. Second principle of the Basic Principles on the Independence of the Judiciary (1985): “Judges shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.“
3. Ferejohn, J. (1999). Independent Judges, dependent judiciary: explaining judicial independence. Southern California Law Review, 72, 354-384.
4. Due Process of Law Foundation. (2016). Recommendations for the selection of magistrates of the Constitutional Court of Guatemala: The ideal profile.
5. Due Process of Law Foundation. (2014). Guidelines for a transparent and merit-based selection of high court members.
6. Ruiz Molleda, J.C (2019). What is the profile of a Constitutional Court magistrate?. IDL.
7. Ibid
8. Salzman, R., & Ramsey, A. (2013). Judging the Judiciary: Understanding Public Confidence in Latin American Courts. Latin American Politics and Society, 55(1), 73-95.
9. Office of the High Commissioner for Human Rights. (2003). HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE: A Manual on Human Rights for Judges, Prosecutors and Lawyers.
10. Due Process of Law Foundation. (2016). Recommendations for the selection of magistrates of the Constitutional Court of Guatemala: The ideal profile.