Legal Research in Guatemala

Iraida Herrera Abreu is a dynamic attorney, entrepreneur, and educator from Guatemala. She graduated with honors from Universidad Francisco Marroquin in 2016 with a JD degree. She also earned a general LL.M. degree from Cornell University Law School in New York in 2019 and an MBA from the London School of Business and Finance in 2021. She is authorized to practice law in Guatemala. For the past seven years, she has been working as an active attorney while launching two start-ups in 2018 and 2020, establishing a law firm in 2023, and founding the Gethedocs Impact Foundation in 2022, a non-profit organization that offers legal assistance to underserved communities in Guatemala (2022).

María Isabel Carrascosa is a law professor at University Francisco Marroquin in Guatemala, where she teaches Foreign Legal Systems and Comparative Law. In 2015 she founded a boutique law firm, Sigüenza y Carrascosa, as an effort to improve the quality of legislation, public policies and institutions in Central America and the Caribbean. Before, Maria Isabel worked as a legal adviser in Congress and wrote columns for Plaza Publica and El Periódico. She is a Fulbright and Fundación Carolina (Spain) Scholar.

NOTE: This article is a complete re-write of the original.

1. General Information

Guatemala is located in Central America; Mexico borders it to the Northwest, El Salvador to the South, and Honduras and Belize to the East. It covers a surface area of 108 890 sq. km. It has a population of 17,357,886 (July 2022), and by 2050, the population is expected to reach 22,703,298 habitants.[1] The capital is Guatemala City, with approximately 1,213,651 habitants.[2] The official language is Spanish, but it also has 22 Mayan languages. Guatemala’s population is as follows: 41.7% is Mayan; 0.1% is Garífuna; 1.8% is Xinca; 0.2% is Afro descendant; 0.2% is foreigner, and 56% is mestizo.[3]

The name of the Republic of Guatemala comes from the Mayan word “Quauhtlemallan,” which means place of many trees. The Mayan civilization flourished in what is today Guatemala 1000 years before the Spanish settled there.

Even though it is practically impossible to estimate how many Mayans resided in Guatemala by the time the Spanish arrived, the most and least populated territories can be defined. Western and central regions had the most inhabitants, whereas the least populated were eastern areas. The concentration in said territories derives from their source of sustenance: agriculture. Additionally, the indigenous groups were organized in kingdoms. Although there was territorial concentration, each group had its sovereign ruler named “calpulli” or “amaq” and these positions were inherited. Because said groups were independent, among them existed political tensions.[4]

1.1. A Brief Introduction to Guatemalan History

Pedro de Alvarado set out to Guatemala in 1523. From 1524 to 1821, Guatemala was a Spanish colony. The first grand battle took place in 1524 in the territory of today’s Quetzaltenango. In that conflict, the Spanish defeated the K’iches, the most potent indigenous group at the time. Consequently, the Mayan cities of Utatlán and Iximché were destroyed, and therefore, the foundation of Spanish cities was laid.[5] Additionally, the Spanish brought viruses and diseases which radically affected the population of indigenous groups over the century.

After the battles against the K’iches and Kaqkchiqueles were won, Iximché served as the Spanish center of administration; this city constituted Guatemala’s first capital. Because of the colonization, the political structure of Mayan groups changed radically. During the colonial regime, the Spanish Monarchy ruled over the land using a local government with the support of the Catholic Church. The Spanish benefited from the work delegated to the indigenous groups through this government.[6] At this time, many historians pointed out that the Spanish were superior because they were “white” and European, whereas the so-called “indios” were inferior because they were so.[7]

During the early stages of colonization, the Crown did not expressly approve of the violent acts committed against the native groups. Still, they were tolerated as it was the price to be paid to implant the empire.[8] It was until 1542 that the religious order of Santo Domingo advocated for the freedom of the indigenous groups. The result was the enactment of the “Leyes Nuevas” or the “New Laws” that ended the regime enabling the enslavement of the indigenous.[9]

The Spanish, therefore, started losing political and economic power, whereas the “mestizos” started gaining it. This change modified the power structures of the Guatemalan society to the extent that by 1667, the class structures were not Spanish and “Indios” anymore, but rather the upper middle class and “the rabble.” The concept of “rabble” did not refer to skin color or trade but rather to poverty level.[10] Because of this social instability and economic suffering, the commission of crimes increased.

On July 29, 1773, the Santa Marta Earthquake struck the capital, halting the social changes of the time. As a result, the city was relocated to the Valley of La Ermita, now known as the current capital and considered the fourth capital.

On September 15, 1821, Guatemala gained independence from Spain and became part of the Mexican Empire. When Mexico’s emperor was overthrown, the Central American countries separated from Mexico and formed the United Provinces of Central America on July 1, 1823. The Constitution governing this union was deliberated and proclaimed in Guatemala City, establishing a political system called the Federal Republic. This system was implemented to prevent the concentration of power in one city since the nations did not trust it.

Between 1838 and 1841, this Federation fell apart despite its desire to remain united. A civil war erupted in 1826 due to the hostility between the liberal and conservative factions, despite their desire to form a union. Francisco Morazán, the liberal leader from El Salvador, exiled Manuel José Arce, a conservative leader, for invading Guatemala. This led to the reinstatement of a liberal government in the country.[11]

After being elected as President of Guatemala, Mariano Gálvez implemented policies that he deemed essential for building a modern state. These policies included legalizing divorce and limiting the influence of the Catholic Church over the government. Although he had good intentions, his political ideas were influenced by European ideologies and failed to consider Guatemala’s unique political, economic, and social context. As a result, opposition arose. In 1836, a cholera epidemic swept through Guatemala, and the Catholic Church claimed it was a punishment from God for the government’s persecution of Church members. The opposition movement gained momentum with the emergence of Rafael Carrera as its leader.[12]

Following Mariano Galvez’s liberal government, a conservative era known as “El Gobierno de los Treinta Años” (The Thirty-Year Government) ensued. Rafael Carrera’s presidency marked the beginning of this period, which can be divided into two distinct phases: (a) from 1838 to 1840, during which Carrera consolidated his power as President and reversed legal measures implemented during liberal governments, leading to his eventual exile to Mexico, and (b) his return in 1849 to combat the liberal movement and form an alliance with fellow conservatives. The second phase concluded with Carrera’s passing.[13]

From 1871 to 1885, Presidents Miguel García Granados and Justo Rufino Barrios worked towards establishing secular, free, and mandatory education in the country. However, Barrios’ efforts to create the Federation of Central America resulted in a dispute between El Salvador and Guatemala. Tragically, Barrios passed away in the Salvadoran province of Chalchuapa, and the Army had to withdraw.

Manuel Lisandro Barillas became the next president of Guatemala. Although his government initially started democratically, he staged a coup in 1887 and declared himself a dictator. Unfortunately, until the “Democratic Spring” between 1944 to 1954, Guatemala experienced a series of oppressive dictatorships.[14]

During the Democratic Spring, the first government to embrace democracy was established under Juan José Arévalo Bermejo. Education was the foundation of his administration, and he focused on creating democratic institutions that respected human dignity. Notable achievements during this time include the establishment of the Instituto Guatemalteco de Seguridad Social, which continues to provide social security to the population, and the introduction of an Employment Code that regulates working hours, the right to unionize, and decent working conditions.

During the period of 1971 to 1954, Jacobo Árbenz Guzmán served as the second democratic government. However, it is imperative to acknowledge the involvement of the United States of America and the United Fruit Company (UFCO) in the political landscape before Árbenz’s rise to power. Only then can we delve into the laws and politics of the time.

During the late 19th century, the UFCO was established by the United States in Guatemala, leading to the development of the banana industry. As time passed, UFCO’s influence grew to the point where it owned significant land and public utilities. In 1929, Guatemala was experiencing an influx of communist ideology, which threatened UFCO’s position.

However, despite the growing political influence of communism, the government at the time did not allow it to take over Guatemala’s politics. It wasn’t until 1950 that the United States became actively concerned about the political ideology of Guatemala’s government, particularly with Jacobo Árbenz Guzmán in power.

Arbenz’s government differed from the previous administrations in that it legalized the Communist Party and implemented the Agrarian Law Reform, which aimed to distribute land to those who required it. The UFCO, which owned some of the nationalized lands, was heavily impacted by this reform. As a result, the United States labeled Arbenz’s government as Communist, and the National Liberation Army, led by Carlos Castillo Armas, invaded Guatemala, forcing Arbenz to resign. Castillo Armas assumed the presidency and revoked the reforms and laws previously passed under Arbenz’s government.

These events set the foundations for the civil war that would come, as in the years that followed, the country was divided between conservatives, liberals, and communists. As a result, numerous organizations were created, including guerrilla groups. In 1982, through a coup, Efraín Ríos Montt seized power. The mass murder of people characterized his government.[15] During this time, 40,000 to 50,000 people disappeared, over 200,000 were killed, and tens of thousands were displaced. In 2013 General Efraín Ríos Montt was convicted of the crimes of Genocide and Crimes Against Humanity.

An essential aspect of the ruling highlights Ríos Montt’s awareness of the numerous massacres during his time as head of the State. He had even devised some of the operations, such as Plan Victoria, Plan Ochenta y Dos, Plan Firmeza Ochenta y Tres, and Plan Operación Sofía, to gain control of the areas used by the guerrilla. These plans resulted in the death and suffering of thousands.[16]

On May 20, 2013, the Constitutional Court overturned a previous decision, citing that the Judge had disregarded an order to halt the process to address a constitutional complaint. The ruling declared any actions taken after April 23, 2013, invalid and ordered the judgment to revert to its November 2011 state. The trial was subsequently repeated on October 14, 2017. General Efraín Ríos Montt died from natural causes on April 1, 2018, rendering a “second” conviction impossible.[17]

1.2. The Inter-American Court of Human Rights Rulings against Guatemala

During that period, Guatemala was found guilty of gross human rights violations in eight different cases by the Inter-American Court of Human Rights. The cases are summarized below:

• Caso Masacre Plan de Sánchez v. Guatemala, dated April 29, 2004. This case refers to the international responsibility of the State for the massacre of at least 268 Achís, as grenades were thrown at civilians, and those who did not die were beaten to death. According to the ruling, the State failed to investigate who was responsible for planning and executing the operation.[18]
• Caso Molina Theissen v. Guatemala, dated May 4, 2004. This case refers to the forced disappearance of 14-year-old Marco Antonio Molina Theissen. His parents were part of the State University and constantly criticized the Government and were therefore considered “enemies” of the regime. After Marco Antonio was kidnapped, his parents sought legal remedies. Nevertheless, according to the ruling, investigations were not made.[19]
• Caso Masacre de las Dos Erres v. Guatemala, dated November 24, 2009. This case derives from the acts committed in the villages named Las Erres. According to the ruling, on December 7, 1982, special army forces called the Kaibiles arrived at Las Erres where men, women, and children were separated. The men were killed, and the women and children were raped and then killed. At least 216 people died, and the villages were burned.[20]
• Caso Masacres de Río Negro v. Guatemala, dated September 4, 2012. This case analyzes the massacres committed in five villages whose leaders, according to the ruling, were executed by the army. The ruling also highlights that children were kidnapped from their homes to different villages.[21]
• Caso Gudiel Álvarez (Diario Militar) v. Guatemala, dated November 20, 2012. The facts of this case refer to 26 forced disappearances perpetuated by the Military. Said disappearances were registered in a Military Intelligence Document known as the Military Diary, or Diario Militar, containing a list of 183 fully identified people considered dangerous to the regime. According to the ruling, every diary entry described the actions taken against each person (e.g., secret and illegal detentions, kidnapping, and murder).[22]
• Caso Miembros de la Aldea Chichupac y comunidades vecinas del municipio de Rabinal v. Guatemala, dated November 30, 2016. The case follows a series of massacres and murders committed by the Army and rapes against the members of the Chichupac village. According to the ruling, survivors of these acts have been forcefully displaced.[23]
• Caso Coc Max y otros (Masacre de Xamán) v. Guatemala, dated August 22, 2018. The court found that during this massacre, the Army killed 11 people, including children, and injured 29 civilians. In Guatemala, a criminal process was conducted, and 14 members of the Military were convicted, but 11 of them remained fugitives.[24]
• Caso Masacre de la Aldea de Los Josefines v. Guatemala, dated November 3, 2021. Guatemala was responsible for the forced disappearance of 14 people, the forced displacement of seven, the violation of human rights to a family of six, the violation to the right of finding the truth of 1,439 people regarding the massacre committed in Petén during the civil war because, according to the Court, investigations were never conducted to find the responsible parties for such operations.[25]

1.3. The New Constitution

The process of a democratic transition was initiated in 1982. A National Constituent Assembly was legally established to enact a new constitution. The new Constitution was promulgated on May 31, 1985, and entered into force on January 14, 1986, when the Congress and democratically elected President were installed.[26] Before dissolving, the National Constituent Assembly enacted two important constitutional laws: the “Ley Electoral y de Partidos Políticos” which regulates the democratic elections up to date, and “Ley de Amparo, Exhibición Personal y de Constitucionalidad” (see supra).

The Constitution incorporated many institutions considered a novelty, especially in Latin America. Among them are the establishment of the Constitutional Court, the constitutional guarantees, and the institutionalization of the Ombudsman.[27] Regarding the constitutional guarantees, the Amparo requires a special mention as it was initially incorporated in the Constitution of 1921; nevertheless, with this Constitution, the protection it enables is limitless, as it states that no area or topic is not susceptible to protection.[28]

This Constitution is the first legal body in Latin America that includes the Ombudsman as a system of control of governmental activity that is not part of the judiciary. This institution directly influences the “Defender of the People” contained in the Spanish constitution.[29] Despite having many innovative aspects, it’s required to enact over 40 secondary laws; to date, not all of them have been enacted.[30]

In early 1991, President Jorge Serrano Elías opened direct negotiations with the Guerilla.[31] This process was paused in 1993 when Serrano Elías attempted to seize absolute control of the government using a “self-coup” historically known as Serranazo. These actions resulted in an unprecedented and unrepeated fact in Guatemala’s history: the Constitutional Court acted ex-officio and analyzed the order of the president to dissolve Congress and the Supreme Court of Justice.[32]

The Constitutional Court declared the “Temporary Government Rules” promoted by Serrano unconstitutional. The Court ruled that “the acts committed by the President and the acts that may derive from them represented a rupture of the constitutional order. Therefore, the situation could not go unnoticed by the Court, whose essential function is the defense of the constitutional order.”[33] Additionally, the Court deemed the Presidential acts void and ruled that such actions lacked any legal validity and were rendered ineffective. The Constitutional Court reestablished the broken legal system.[34]

The first addendum states that

“the President has continued to act in clear disregard of the decision (…). Therefore, this Court requests from the Ministries of Government and Defense the necessary support for the decision to be published in the Official Gazette and enforced by the Executive Power.”

The second addendum recognized that the Supreme Court of Justice and Congress. Moreover, it acknowledged the military’s support and the president’s resignation.[35] The next point analyzed is the lack of a President and Vice President, as both had acted against the constitutional order. This situation enabled Congress to elect the President with the favor of two-thirds of its members. Ramiro de León Carpio, who was Ombudsman during Serrano Elías’ Government, was elected.[36]

On April 1, 1994, Epaminondas Gonzáles was murdered. He was President of the Constitutional Court when the ex-officio decision was published.[37] As a result of the Serranazo, a constitutional reform came into place, reforming 34 dispositions, the most critical affecting:[38]

• The election of members of Congress and the Supreme Court of Justice. On the one hand, regarding the members of Congress, the CPR indicated that the term of members of Congress was five years, and the reform reduced it to four years with the possibility of reelection. Likewise, the method of election was instituted, namely how the electoral districts are formed. On the other hand, the number of Justices of the Supreme Court of Justices went from nine to thirteen. Initially, they were elected directly by Congress. Nevertheless, this changed, and despite still being elected by Congress, the election derives from a list of twenty-six candidates elected by Nominating Committees.
• Control over parliamentary immunity, as original members of Congress could not be prosecuted unless authorized by the Plenary Session of Congress, but the reform takes away the attribution from the Congress and gives it to the Supreme Court of Justice as protection of the division of powers.
• Reduction of the term of the President and members of Congress to four years when it was of five years.
• Elimination of secret budget lines, as the PCR included all governmental institutions’ obligation to send their expenses and incomes to the Legislative and Executive Branch annually.

Part of this reform derived from the elected President Ramiro de León Carpio as an attempt to reconcile political tensions. The Constitution regulates two different methods for it to be reformed because this one related to the Organic Part required citizens’ acceptance through popular vote.[39] Despite the result being positive, the abstention of voters was notable as it constituted 85%, the highest result in political history.[40]

1.4. The Era of the “Peace Accords”

In 1996, the signing of the Peace Accords ended the 36 years of internal armed conflict. The Peace Accords were more than just a ceasefire but a comprehensive set of agreements in human rights, agrarian law, and indigenous peoples, among others.

Four aspects of the contents of the Peace Accords must be highlighted: (a) they limit the attributions of the army to defending Guatemala’s borders and its territorial integrity; (b) the dreaded Civilian Self-Defense Patroandre was eliminated; (c) they recognize that Guatemala is a multicultural, multiethnic and multilingual nation, which results in the awareness of the right of the indigenous majority to make claims on the state and; (d) amnesty that covers war-related crimes, excluding genocide, torture, and forced disappearances.[41] This last point has been criticized, as it leaves many crimes with impunity.[42] Nevertheless, these Accords have been a model for other countries in their transitional justice and peace efforts.

From 1996 to this day, Guatemala has experienced democratic power transitions. Nevertheless, some events need to be mentioned. In 2012, Otto Pérez Molina was elected President, and his term would end in 2016, but he resigned in 2015 due to a corruption scandal that resulted in an anti-corruption protest movement.[43]

In 2022 he was sentenced to 16 years in prison, along with his Vice President Roxana Baldetti, on charges of illicit association and customs fraud. Both elected officials were accused in April 2015 by the Public Prosecutor’s Office with the support of the UN-backed International Commission Against Impunity in Guatemala (CICIG).[44] As the Executive Power was left without officials, the Congress elected Alejandro Maldonado Aguirre as President.[45] The appearance of CICIG has been a controversial institution in Guatemala. After dealing with the cases of “Byron Lima”, the famous cases: “La línea” and the “IGSS-Pisa case,”[46] which were seen generally as positive actions from CICIG, in 2016, there was an unsuccessful attempt to reform the Constitution.[47]

Since the current president, Alejandro Giammatteihe, took office, judges, journalists, and prosecutors claim they have been pressured into resigning and/or leaving the country.[48]

2. Constitutional Law

In Guatemala, constitutional law governs two primary processes, which can be explained as follows:

• The first category is called “inconstitucionalidades.” These procedures are focused on safeguarding constitutional supremacy by providing specific and tangible remedies to address laws that are deemed unconstitutional.
• There are two subcategories of procedures that aim to protect individual rights as stated in the Constitution. The first subcategory is (b.1) “Exhibición personal” or habeas corpus, which ensures personal freedom. The second subcategory is the (b.2) “Writ of Amparo,” which safeguards other fundamental rights from arbitrary actions of the government.

2.1. Unconstitutionality of Laws

Before delving into the first step of the constitutional process, it’s crucial to understand Guatemala’s unique control system. The country’s system blends the North American “diffuse” control and Austrian “centralized” control systems. The diffuse system avoids applying laws that contradict the Constitution in specific cases, while the concentrated system considers laws adequate until they’re deemed unconstitutional.

This distinctive mix is evident in articles 266 and 267 of the Constitution, which regulate constitutional actions for “specific instances” (diffuse system) and actions to claim, “general unconstitutionality” (centralized system) of laws, respectively. Constitutional Courts under the centralized model are similar to the Guatemalan Constitutional Court in that they are specialized courts about constitutional matters. However, the difference in the Guatemalan system is that its jurisdiction is not exclusive. This eclectic system empowers the Constitutional Court justices and all lower judges to exercise constitutional control over their decisions. The Constitutional Court holds the ultimate authority in interpreting the Constitution.

Although general unconstitutionalities of the laws can only be reviewed and declared by the Constitutional Court, all other courts automatically transform into constitutional courts at the first instance when presented with writs of Amparo or unconstitutionalities in specific instances. Despite the variation between the two principal models of constitutional control, the Guatemalan system is more inclined towards the centralized system. Although judges can exercise judicial review in concrete cases (either through amparo or unconstitutionality), the Constitutional Court has exclusive jurisdiction on appeal.

Constitutional Law in Guatemala is not only governed by the Constitution but also by the “Ley de Amparo, Exhibición Personal y de Constitucionalidad” Decree 1-86 of the National Constitutional Assembly. This legislation provides a detailed regulation of the constitutional procedures, enforcement mechanisms, and their conditions of admissibility and spheres of competence.

The difference between both is that the latter is only binding on the parties, whereas the former has full effects throughout the whole legislative system. Both remedies guarantee the principle of constitutional supremacy outlined in articles 44, 175, and 204 of the Guatemalan Constitution. When reviewing the unconstitutionalities of the laws: the Constitutional Court has addressed the following topics: (a) requirements of the viability of the claim b) admissibility of the claim, and (c) effects of the claim.

First, for the claim’s viability, the applicant must clearly and reasonably state the motive for the unconstitutionality. Just mentioning the articles as contrary to the Constitution is insufficient for the Constitutional Court to analyze the viability of the unconstitutionality.[49] Second, for the claim to be admissible, the law must be in force when the unconstitutionality is filed. Third, the unconstitutionality in special instances has the exclusive effect of the norm being inapplicable to the case in question, meaning that the Tribunal does not have the power to modify, confirm or revoke a resolution issued by an administrative authority that had applied the law.[50]

For a general unconstitutionality to be granted, additionally, the Court has stated that the following is required: (a) for the attacked law to have an unconstitutional precept; (b) the law has to be in force and has to affect the population as a whole (erga omnes) and (c) the argument of the Applicant have to be sufficient for the Tribunal to be convinced about the absence of constitutionality.[51] Concerning the erga omnes effects, this requirement applies not only to laws enacted by Congress but also to regulations enacted by the President and public institutions.[52]

2.2. The Constitutional Block

In 2011 the Constitutional Court set a very powerful precedent: the constitutionality of the laws could be argued under the Constitution and international human rights treaties. Articles 44 and 46 of the Constitution recognize the preeminence of international law over national law regarding human rights.

In a torture case, arguments were made as to whether the crime of torture was not regulated in Guatemala following the United Nations Convention against Torture. The Constitutional Court recognized the existence of a “constitutional block”. It explained that even if rules and principles are not a part of the Constitution, they must be integrated into it and serve as measurements of constitutionality as they regulate human rights. Therefore, the “block” serves as a tool for international law to be applied in Guatemala under the Constitution, especially when regarding human rights.[53]

2.3. Supervening Unconstitutionality and Unconstitutionality due to Omission

In addition to general and specific instances of unconstitutionality, case law has recognized two other types: supervening unconstitutionality and unconstitutionality due to omission. “Supervened unconstitutionality” pertains to legal provisions established according to the 1965 Constitution rather than the 1985 Constitution. This means that when these regulations are compared to the present Constitution, they are found unconstitutional.

According to the Constitutional Court, it cannot declare a norm unconstitutional in these cases because their responsibility to safeguard the constitutional order originates from the 1985 Constitution and is defined and confined by it.[54] “Unconstitutionality by omission” refers to the failure of Congress to enact a law based on a constitutional obligation and inadequate and discriminatory regulation.

The Constitutional Court has limited powers and cannot take over the role of Congress in enacting laws. Their jurisdiction is restricted to examining norms that have constitutionally significant consequences. Whether the Court can review the constitutionality of such norms depends on the specific case at hand.[55]

2.4. Habeas Corpus and the Writ of Amparo

The two remaining procedures, concerned with protecting individual fundamental rights, are governed by articles 263 and 265 of the Constitution. The primary difference is that habeas corpus primarily guarantees individual freedom, whereas the writ of amparo guarantees all fundamental rights. Both writs are similar in that they protect individuals in their fundamental rights from arbitrary government acts.

The habeas corpus concept is designed to aid those who have been unlawfully detained or whose personal liberty is at risk. It can also assist individuals who have been legally imprisoned but have experienced mistreatment. The goal of the process is to either secure the release of the person or to put an end to any mistreatment they may have suffered.

The Inter-American Court of Human Rights has expanded the significance of habeas corpus, emphasizing that it serves to confirm the legality of a person’s detention by presenting them before a competent judge. Consequently, the habeas corpus serves as a means of safeguarding an individual’s life and well-being, while also shielding them from any potential instances of torture or inhumane treatment.[56]

The Ley de Amparo, Exhibición Personal y de Constitucionalidad affirms that, as personal freedom is the protected interest, the filing of a habeas corpus is not subject to formalities. Once the application is submitted, the Judge either orders the detainee to be presented to them or for another authority to visit the alleged location of the detainee.

If the authority presents itself to the place and the person cannot be found, the Procedural Criminal Code regulates a special process that would apply, namely the “Special Inquiry Procedure.”[57] Because of the simplicity of this process, there is not much case law that differs or amplifies the applicable law to the process.

In general, to initiate a process, it is a requirement to have standing. The Amparo, habeas corpus, and unconstitutionality in special instances are proof of it. This is by invoking either an injury or a threat of an injury to individual rights as guaranteed in the Constitution. An injury occurs when the law or application of the law imposes an immediate, direct, and personal obligation that abrogates or modifies rights legally vested in the person of the complainant.

However, there are two situations in which exceptions are made: when the law is deemed unconstitutional and in some instances of Amparo. According to the law, the Public Prosecutor’s Office and the Ombudsman are authorized to file an Amparo to protect the interests assigned to them. This authority has been expanded through jurisprudence, allowing them to seek an Amparo when acts of omission affect the general population or the State’s functioning, in addition to their entrusted interests.[58]

The Amparo serves a dual purpose as both a right and a guarantee under the American Convention on Human Rights and the Constitution. Its objective is to safeguard individuals from potential human rights violations or to help them reclaim their rights if such violations have already occurred. Based on this definition, Amparo can be classified into two types: preventive and restorative.

The Ley de Amparo, Exhibición Personal y de Constitucionalidad regulates in greater detail the procedural requirements of the Amparo, which are: (a) active standing; (b) passive standing; (c) temporality, and (d) that the attacked resolution is final. If these requirements are met, the Constitutional Court can analyze the concrete case and grant the Amparo.

2.5. The Scope of Protection of the Writ of Amparo in Guatemala: A Third Instance?

It is crucial to consider that the scope of Amparo protection is practically boundless. As previously stated, there isn’t an area or subject that cannot be safeguarded. The individuals involved expressed great enthusiasm and provided extensive feedback, as they believed it was best to leave the regulation of the Amparo to the Constitutional Justices through their judicial resolutions.[59]

In other countries, the application of Amparo is not as extensive as in Guatemala. In Mexico, for instance, the Amparo safeguards individuals from governmental acts or omissions. This implies that neither the government nor its organs can seek redress through Amparo, nor can other entities use it to protect diffuse interests.[60]

Furthermore, despite its extensive protection, the Amparo is often misused as a third instance, which goes against the Constitution’s provision of only two instances for any legal process. In legal doctrine, there are two opposing theories on whether an Amparo can be filed against judicial decisions: the permissive thesis, which allows it for any decision, and the negative thesis, which does not.

The application of each theory depends on the regulations of the country. In Peru, only decisions that violate the right to effective judicial protection are subject to Amparo, while in Guatemala, any decision can be subject to Amparo if it meets the requirements, making it a de facto “third instance”.[61] Although the constituents had good intentions, the broad protection has resulted in legal backlogs. Moreover, these delays affect not only constitutional justice but also justice as a whole.[62]

3. The Constitutional Court

Guatemala’s Constitutional Court was established in 1985 due to a democratization process and the implementation of a new constitution approved by a freely elected constitutional assembly representing the existing political and legal spectrum. Although constitutional tribunals originated in Europe, Guatemala was the pioneer country within its region to incorporate it into its legal system through the 1965 Constitution.

The Constitutional Court, though part of the Judicial Branch, had limited powers and was not a permanent fixture. Its role was restricted to examining the constitutionality of laws, while ordinary judges were responsible for Amparos.[63] During that period, the Constitutional Court was comprised of 12 Justices. The President and 4 Magistrates of the Supreme Court of Justice held positions, while the remaining members were selected from the Appeal and Administrative Chambers.[64] The Constitutional Court, as it is known today, became independent from the Judicial Power in 1985.

Concerning the organization of the Constitutional Court, the Constitution contains the provisions that govern the structure of the Court in articles 268 to 272. The Ley de Amparo, Exhibición Personal y de Constitucionalidad also contains provisions from articles 150 to 189. The Court comprises five justices serving a five-year term, each with a corresponding alternate designated by the Supreme Court of Justice, the Congress, the President with her Ministers, the University Council of San Carlos University, and the Bar Association.[65]

The highest authority in the government structure is the Constitutional Court, which is responsible for administering constitutional justice. This tribunal has the final say in interpreting the Constitution as a whole. According to Article 43 of the Ley de Amparo, Exhibición Personal y de Constitucionalidad, once the Court has issued three rulings on the constitutional interpretation of a particular matter, its interpretation becomes binding for all judges in the Judicial Branch. If the Court chooses to depart from its interpretation, it must provide reasons for doing so.[66]

This tribunal does not only have jurisdiction for the three above-mentioned procedures but also has advisory jurisdiction available to the three Branches, which is governed by articles 171 to 177. Advisory opinions are non-binding, and concern only matters under the Court’s purview. An instance of this kind of attribution is seen in the evaluation of the Rome Statute of the International Criminal Court’s constitutionality when it was being considered for ratification.[67]

Finally, it has been stated that it is the duty of the Constitutional Court to safeguard the constitutional order, which it has diligently performed on numerous occasions. However, being open to critical evaluation is not out of the question.

Some of these critics are related to the following:

• The involvement of the Court in democratic elections has been significant, particularly in the presidential candidacy of various individuals like Sandra Torres and Zury Ríos.[68] Although their cases have received the most attention, they are not the only ones affected. For instance, 2019, Thelma Aldana’s candidacy was hindered due to legal issues with the court. However, during that same year, Zury Ríos’ case was resolved. Some argued that the decisions were purely political and that there was favoritism on behalf of the Court.[69]
• The issue of concentrated power and limited control over decision-making is crucial. Constitutional tribunals were originally founded based on Kelsenian principles, to safeguard democracy against the influence of political authorities. As such, these tribunals were granted sufficient authority to reverse political decisions and actions. The opposing view to this notion was that to establish an institution responsible for determining the constitutionality of certain actions by the state, especially those of parliament and the government, the power of control should not be given to one of the branches being scrutinized.[70] Despite their theoretical soundness, models are susceptible to power manipulation. Illiberal regimes have used two approaches to seize control of constitutional tribunals: restricting their authority or exerting influence over the judges.[71] In Guatemala, the second case applies — whereby the Court’s Justices are accused of being beholden to the powers that appointed them, which undermines their ability to make independent decisions. Compounding the issue is that the Court is the ultimate authority, meaning there is no mechanism to overturn its decisions.
• The relationship between the Supreme Court of Justice and the Constitutional Court is distinct. The former is the highest tribunal within the Judicial Branch, with its President serving as the President of the Judicial Branch. Meanwhile, the latter is not part of the Judicial Branch and has a unique role in safeguarding the constitutional order. In theory, each court’s attributions should not overlap, except Amparos. The Supreme Court of Justice is responsible for deciding cassations/annulments, and their decisions should be considered final. However, in some cases, an Amparo may be filed after the decision has been informed to the parties, and the Constitutional Court’s decision may overturn the Supreme Court of Justice’s decision. This has the unintended consequence of reducing the Supreme Court of Justice’s legitimacy, as their decisions are seen as an intermediate step in accessing Amparo, rather than the final resource within the Judicial Branch.

3.1. Constitutional Reforms

The Constitution regulates the process by which it can be reformed. It is essential to identify the entities authorized to suggest a reform. These include (a) the President in the Council of Ministers, (b) five or more members of Congress, (c) the Constitutional Court, and (d) the public, who can petition Congress with a minimum of 5,000 citizen signatures.

When considering constitutional reform, two aspects must be considered. Firstly, the processes involved differ depending on which part of the Constitution should be reformed. Secondly, articles cannot be reformed at all. This section will address the reform process in the same order as presented in the Constitution. To amend the chapter governing constitutional reforms and the chapter governing individual rights, Congress must call for the formation of a National Constitutional Assembly with the approval of two-thirds of its members.

The integration call decree mandates the article’s specification or articles requiring revision or modification. After this, Congress will inform the Supreme Electoral Tribunal of its decision to conduct elections for the National Constitutional Assembly, with a maximum duration of 120 days from the election date. Upon election, the assembly will scrutinize proposed reforms using the processes employed by Congress to pass laws.[72] The process is different if there is a need to reform any other aspect of the Constitution, such as the organic part. Unlike the previous case, there is no requirement to establish a National Constitutional Assembly.

The reform project must undergo discussion and approval by at least two-thirds of Congress. However, the modifications will only take effect once ratified by the popular vote, as regulated by the Ley Electoral y de Partidos Políticos. The process is similar to that of democratic elections, but instead of voting for candidates, citizens are presented with a yes or no question. If the popular vote ratifies the decision made by Congress, the modifications will take effect 60 days after the Supreme Electoral Tribunal announces the result. To safeguard the republican form of government, democracy, and the principle of prohibiting re-election, the Constitution specifies articles that cannot be altered through express mandate.

These include provisions that establish Guatemala as a free, independent, and sovereign State, recognize the three branches of power as the source of sovereignty, prohibit the President and Vice President from seeking re-election, and protect the principles. Although there have been successful reforms to the Constitution, there have also been attempts to reform it. It is worth noting that some of the explicit articles that cannot be modified have been implicitly altered, such as in the case of Zury Rios’ candidacy despite explicit prohibitions. These modifications have been made possible through a broad interpretation of human rights.

3.2. Antejuicio

To ensure that political attacks do not unfairly target high-ranking government officials, the Constitution grants them the right of Antejuicio to protect their ability to fulfill their governmental obligations.

To gain a more precise grasp of this organization, it can be likened, in some ways, to the impeachment process. Antejuicio plays a crucial role in the system of checks and balances, allowing Congress to accuse and subsequently put on trial a federal official. In this scenario, the Senate serves as the High Court of Impeachment, reviewing evidence, listening to witnesses, and determining whether to acquit or convict the impeached individual.[73]

Impeachment and Antejuicio offer implied protection of the position rather than the person. However, there is a crucial difference: Antejuicio does not give the authority with jurisdiction over the person the power to determine the guilt or innocence of the accused official. Instead, that decision is left to the criminal judge. Antejuicio allows the criminal judge to evaluate the case in its entirety. This protection is so important that it has even led to the creation of a crime called “violation of privileges,” which can be committed by judges and administrative officials of the Judicial Branch who fail to follow the Antejuicio procedure.

Specific individuals are granted the privilege of this status, including: (a) members of Congress; (b) the President and Vice-President; (c) Secretaries of the President; (d) Justices, Magistrates, and Judges of the Judicial Branch; (e) Departmental Governors; (f) the Public Prosecutor; (g) the Attorney General; (h) Mayors; (i) Candidates to Presidency, Vice-Presidency, Congress, and Municipal Council; (j) the Ombudsman; and (k) Justices of the Constitutional Court.

To maintain a fair system of checks and balances, the decision to proceed with criminal prosecution is dependent on the official who has been accused. According to the law, the designated authorities responsible for determining whether to revoke the Antejuicio are:

• The plenary session of Congress decides when it comes to (i) President and Vice-president of the Republic; (ii) President of the Judicial Branch and Justices of the Supreme Court of Justice; (iii) President and Magistrates of the Supreme Electoral Tribunal and of the Constitutional Court; (iv) Ministers of the State and Secretaries of the Presidency; (v) Ombudsman; (vi) Attorney General and; (vii) Public Prosecutor.
• The Supreme Court of Justice decides when it comes to (i) members of Congress; (ii) the General Secretary and General Inspector of the Supreme Electoral Tribunal and the General Director of the Citizen Registry; (iii) Magistrates of the Court of Appeals; (iv) Judges in general; (v) Candidates for presidency and vice-presidency of the Republic.
• The Court of Appeals decides when it comes to (i) Candidates to Mayors; (ii) Elected mayors; (iii) Mayors; (iv) Candidates to members of Congress, and (v) Elected members of Congress.

If a criminal judge receives a criminal indictment against a public official who has the right of Antejuicio, they won’t proceed with the case as per the law. Instead, they’ll send the record to the Supreme Court of Justice, who will forward it to the appropriate authority, as stated earlier. Some procedural requirements may vary depending on whether the appropriate authority is Congress or the Supreme Court of Justice.

3.3. Reproductive Rights and the Role of the Constitution

The Constitution’s Dogmatic Part safeguards the fundamental human rights that every individual is entitled to. However, certain rights, like reproductive rights, are not explicitly mentioned. This should not harm their enjoyment, as these unmentioned rights are encompassed by articles 44 and 46 of the Constitution, which acknowledge all human rights that a person is entitled to.[74]

Despite the theoretical existence of reproductive rights for women in Guatemala, they face severe limitations in practice due to the close connection between religion and the state.[75] In the ongoing debate over abortion, opponents often cite Article 3 of the Constitution, which protects life from conception. This makes abortion a crime under the Criminal Code, with the sole exception being when the mother’s life is at risk.

However, in 2022, there was an alarming attempt to ban abortion outright and even prohibit same-sex marriage with the “Life and Family Act” (Decree 9-2022). This act not only violates internationally recognized human rights but was also passed on International Women’s Day. If enacted, it would impose the harshest penalties for abortion in all Latin America.[76]

It must be emphasized that the protection of life should not come at the expense of other rights, as members of Congress and the President often do without consideration of the consequences. The right to family protection, including the freedom to choose the number and spacing of children, is enshrined in the Constitution of Guatemala, and the ban on abortion violates this fundamental right. The Constitutional Court has made it clear that decisions about having children, their number, and spacing are deeply personal matters that involve individual conscience, values, and intimacy. Therefore, the law should refrain from interfering with these private decisions.[77]

Additionally, it is important to note that Guatemala is a signatory of the American Convention on Human Rights, which means that the Inter-American Court of Human Rights rulings hold legal weight within the country. While the Inter-American Court of Human Rights has not explicitly declared the prohibition of abortion as unconventional, it has specifically focused on matters related to reproductive health and reproductive rights. For instance:

• In the court case I.V. v. Bolivia, it was determined that sexual and reproductive health are an essential aspect of overall health, with significant implications for women given their biological ability to bear children. As such, these rights are critical to ensuring bodily autonomy and reproductive freedom, and any decisions related to these matters must be free from violence and discrimination.[78]
• In the case of Artavia Murillo and others against Costa Rica, the court concluded that legal protections for sexual and reproductive rights are crucial. Without them, women’s autonomy and reproductive freedom are gravely violated.[79]
• In the Manuela and Others v. El Salvador case, the Court acknowledged the historical limitations, restrictions, and nullifications of women’s bodily autonomy and reproductive freedom due to negative gender stereotypes. These decisions stem from socially and culturally assigned gender roles, where men have primarily held the power to decide over women’s bodies. It is crucial to consider the unique circumstances of individuals who seek to exercise their reproductive rights. In this case, Manuela was a financially struggling, uneducated woman living in a rural area. Unfortunately, her situation subjected her to discrimination from the authorities, who accused her of aggravated homicide based not only on her gender but also on her socioeconomic status.[80]

Analyzing and applying the Inter-American Court of Human Rights arguments on reproductive health under the Constitution of Guatemala could lead to meaningful progress. However, the country still has a long way to go regarding legislating in favor of women. President Alejandro Giammattei declared Guatemala the “pro-life capital” of Latin America, stating his belief in respecting life from conception in 2022.[81]

4. Structure of Government

4.1. The Executive Branch

The President of the Republic heads the Executive Branch and is also integrated by the Vice-President, Ministries, and Secretariats. Each of these positions will be individually addressed. Within the functions and attributions of the Executive Branch is the exercise of the administration, formulation, and execution of governmental policies to coordinate the other organs or institutions that are part of the centralized administration.[82] Despite not being expressly mentioned as part of the Executive Branch, the departmental government is also part of the Executive Branch and serves administrative purposes.

4.1.1. The President

The Constitution states that the President is the head of the State and exercises the functions of the Executive Branch by mandate of the people and also acts as Commander-in-Chief of the Guatemalan armed forces. The people elect the President through universal suffrage and an absolute majority of votes for a single four-year term. A simple majority is required. Otherwise, there is a second round. The President always acts with the Ministers of State, either through the Council of Ministers or separately with one or more of them.

To be eligible as President, the Constitution provides both requirements and prohibitions. First, the requirements to serve as President are to be a natural-born citizen and to be at least forty years of age. Second, there are seven express prohibitions for people who may not hold office: (a) the leader and chiefs of any coup d’état, armed revolution, or similar movement that changes the constitutional order, nor those who become head of the government as a result of such actions; (b) incumbents holding the office of President or Vice-President when elections take place; (c) the blood relatives in the fourth degree and legal relatives in the second degree of the President or Vice-President including of those referred to in the first literal; (d) those who were Ministries of the State, any time during the former six months before the election; (e) members of the army, unless they have been retired for at least five years; (f) religious ministries and (g) Magistrates of the Supreme Electoral Tribunal. Moreover, there is also an express provision against reelection for those who have either been President for a period or have substituted the President for at least two years.

The Constitutional Court has only addressed two or three specific restrictions. The first and third restrictions pertain to the preservation of constitutional order and the rule of law. These restrictions regulate future situations that have a precedent in events that occurred previously.[83] This prohibition applies even if the revolutions or coup d’états were to benefit the people, considering that this limitation seeks to favor democratic representation.[84]

One of the most impactful cases analyzed the candidacy of General José Efraín Ríos Montt, who served as Chief of State from March 23, 1982, to August 8, 1983. The arguments presented were based on the right to vote and be elected in genuine periodic elections, as outlined in Article 23 of the American Convention on Human Rights. Articles 44 and 46 of the Constitution also establish the preeminence of international law in matters of human rights. The Constitutional Court examined whether the prohibition was by the Convention and found no contradiction.[85]

It has been reasoned that the prohibition of specific individuals accessing certain positions is based on historical conditions. This measure is necessary to safeguard the interests of certainty, sovereignty, the common good, and the preservation of the constitutional order. Furthermore, these interests and values are allowed under the American Convention on Human Rights as they fall within the limits of political rights outlined in the convention. It should be noted that the right to be elected is not absolute.[86]

The third prohibition safeguards democratic representation and uphold the principle of power alternation and constitutional order. This prohibition has been analyzed due to two controversial cases: (a) the candidacy of Sandra Julieta Torres Casanova in 2011, as she was married to the then President Álvaro Colom Caballeros, and (b) the candidacy of Zury Maité Ríos Sosa in 2015, 2019, and 2022, who is the daughter of General José Efraín Ríos Montt.

Sandra Torres had a presidential ambition in 2012 but was hindered by a legal prohibition. Therefore, she divorced Álvaro Colom and pursued a candidacy for the presidency. However, despite her efforts, the Supreme Electoral Tribunal rejected Mrs. Torres’s inscription. An action of Amparo (see supra) was filed, but it was denied. The reasoning behind the denial was that the law prohibited individuals who had divorced the President or Vice-President during their term from being candidates. Additionally, it was argued that divorce cannot be used to circumvent an explicit prohibition. According to the Court, in the case of Mrs. Torres, her prohibition had a time limit, meaning that she could run for office, but not immediately after her ex-husband to protect interests.[87]

Unlike Sandra Torres, Zury Ríos’ prohibition has no time limit. However, there has not been a consistent interpretation from the Supreme Court of Justice or the Constitutional Court. This led to the Supreme Court of Justice granting an Amparo in 2015, after denying Zury Ríos and her political party “Visión con Valores (VIVA)” the opportunity to run for president.

The Supreme Court of Justice presented an argument regarding the humanistic principles of the Constitution and the use of constitutional blocks. However, one of the Justices dissented, stating that the prohibition could not be circumvented by analyzing the human rights mentioned by the Court.[88]

In 2019, the Constitutional Court upheld the view that the restrictions outlined in Article 186 of the Constitution do not impede upon the right to vote and be elected, as political rights are not absolute. Article 281 of the Constitution enshrines an unalterable clause, not through explicit means, but due to the protected interest it maintains. Zury Ríos was therefore not permitted to run as a candidate in the 2019 elections. Despite this ruling, she has persisted in her pursuit of the presidency.

On May 24, 2019, she submitted a petition to the Inter-American Commission on Human Rights alleging violations of her rights to be chosen, dignity, the principle of legality, freedom of speech, political rights, and equality. The State of Guatemala and Zury Ríos reached an agreement, allowing her to participate in the elections. As a result, Zury Ríos was a candidate in the 2023 elections.[89]

Although the two cases mentioned earlier are the most significant, it’s worth noting two additional cases briefly:

• During the presidency of Vinicio Cerezo Arévalo, his wife Raquel Blandón Sandoval de Cerezo attempted to run for president. However, her bid for vice president was denied using similar arguments as in the case of Sandra Torres.[90] In 2011, she ran for Vice-Presidency alongside Manuel Baldizón, taking advantage of the time limit on the prohibition that applied to her.[91]
• María Teresa Sosa Ávila, wife of General Efraín Ríos Montt, was denied candidacy for the presidency. The Supreme Electoral Tribunal rejected her candidacy because it did not comply with the law and the constitutional prohibition. Neither the Constitutional Court nor the Supreme Court of Justice were involved in this decision. The declaration of candidates for president and vice president of the political party Frente Republicano Guatemalteco (FRG) was not made in accordance with the law.[92]

4.1.2. The Vice-President

There is also the office of the Vice-President of the Republic, whereby by the PCR the Vice-President is entitled to exercise primarily the same powers as the President. There is little regulation specifically for the Vice-President, as most regulations for the President also apply. This includes the prohibitions.

In the event of the President’s absence, certain provisions are in place for the position to be filled. If the President is temporarily or permanently absent, the Vice-President will serve as a substitute. If the absence is permanent, the Vice-President will act as President for the remaining term. If both the President and Vice-President are absent, Congress will elect a person to finish the term with an approval of two-thirds of the representatives. In cases where the Vice-President is absent alone, the President will propose a list of substitutes to Congress for selection.

4.1.3. Ministries

Ministers of State are appointed and discharged by the President of the Republic, as are the respective deputy ministers. The Council of Ministers, also known as the Cabinet of the Government, is the main body within the Executive Branch. It comprises the President, the Vice-President, the Ministers, and the Vice-ministers of State. The legal basis for the powers and functions of this Branch is contained in the Law of the Executive Branch.

To serve as a Minister of State in Guatemala, one must be a citizen, have full citizenship rights, and be at least 30 years old. However, the Constitution also outlines several prohibitions for potential Ministers of State, including being a blood relative within the fourth degree or legal relative within the second degree of the President, Vice-President, or other Ministers. Additionally, those convicted in Judgment of Accounts without resolving the situation, contractors of state-funded enterprises or constructions, individuals who defend the interests of those who exploit public services, and religious ministers are all barred from being Ministers of State.

There are 14 Ministries in the current structure of the government, namely:

• The Ministry of Defense safeguards Guatemala’s sovereignty and territorial integrity.
• The Ministry of Foreign Relations manages the State’s relations with other nations and public international institutions. This includes diplomatic representation, matters related to nationality, and international treaties and conventions.
• The Ministry of Economy is responsible for developing economic activities, overseeing national and international commerce, and ensuring consumer protection.
• The Ministry of Agriculture, Livestock, and Fishing is responsible for matters related to their respective areas and for improving the nutritional conditions of the population.
• The Ministry of Labor ensures compliance with labor laws and social security.
• The Ministry of Environment and Natural Resources is responsible for conserving, protecting, and promoting the sustainability of the environment.
• Another ministry, the Ministry of Infrastructure, Communications and Housing, oversees establishing and maintaining communication and transportation systems, radio-electrical frequencies, airspace, and housing policies.
• The Ministry of Culture and Sports is responsible for conserving and developing cultural heritage, including national monuments, buildings, institutions, and areas of historical and cultural interest, as well as promoting recreation.
• The Ministry of Social Development designs, regulates, and executes public policies to improve the well-being of impoverished individuals.
• The Ministry of Education provides educational services to Guatemalans, and
• The Ministry of Energy and Mines is responsible for producing, distributing, and commercializing energy and hydrocarbons and mining.
• The Ministry of Public Finances manages the state budget.
• Ministry of the Interior, which is in charge of keeping the peace, security, and public orders; the safety of the civilians; ensuring the guarantee of the rights of the civilians; the execution of judicial orders.
• The Ministry of Public Health and Social Assistance is responsible for promoting and restoring physical and mental health and preserving the environment. They oversee preventive measures and initiatives related to the production and recovery of health.

Under their roles and responsibilities as government members, Ministers are required to fulfill the following duties: (a) submit an annual report to Congress detailing their activities and the budget allocation and expenditure, and (b) attend Congressional hearings when summoned by representatives for questioning. Details on the latter obligation will be discussed in the Legislative Branch section.

4.1.4. Secretariats

The President is also supported by many Secretariats that stem directly from the presidency and are created by law. According to the PCR, the President may have as many secretariats as necessary; currently, there are 18. Only the General Secretary and the Private Secretary of the Presidency must fulfill the exact requirements as Ministers of State and enjoy the same privileges and immunities.

Out of the 18 secretariats, only seven of them are contained in the Law of the Executive Branch, namely:

• General Secretary, which is responsible for governmental issues deriving from presidential obligations.
• Private Secretary, which attends private matters of the president.
• Executive coordination Secretary, which formulates public policies regarding urban and rural development.
• Social Communication Secretary, which functions as a link between the press and the government.
• Strategic Analysis Secretary, which is responsible for producing intelligence in strategic fields, ensuring national security, and preventing of risks and threats to public safety.
• Planning and Programming of the Presidency Secretary, which analyzes the best ways to execute the budget in cooperation with the Public Finances Ministry.
• Administrative Matters and President Security Secretary, this is a permanent entity specialized in security.

4.1.5. Departmental Governments

The departmental government is overseen by a governor appointed by the President of the Republic.

The governor’s responsibilities are purely administrative and are chosen from a list of candidates provided by representatives of the Departmental Council of Urban Development.

To be elected as governor, candidates must meet the exact requirements as those for Minister and must have been residing in the department for at least five years before their appointment. Since the President selects the governor, who can also be removed at the President’s discretion. As the governor’s role is administrative, they rely on the Ministry of Interior and are responsible for carrying out orders from the centralized government.

As part of the administrative regime, the Constitution regulates the creation of the National Council of Urban and Rural Development, coordinated by the President. The specific regulation is in decree 11-2002 of Congress, “Ley de los Consejos de Desarrollo Urbano y Rural.”

Per this law, the system of development councils permits the participation of Mayan, Xinca, Garífuna, and non-indigenous in public matters. One of the most important attributions of the National Council of Urban and Rural Development is the promotion of the decentralization of public administration and securing the effective participation of the population to propose solutions for their specific problems, which could be, for example, departmental or municipal.

4.1.6. Relations Between the Administrative Government and Its Employees

The Civil Service Law regulates the administrative government’s relationship with its employees, as stated in Congress’ Decree 1748. Specific Civil Service Laws also exist for Foreign Affairs, Judiciary, Legislative, and Municipal officers. These laws typically classify public servants into two categories: (a) those who are appointed freely and can be removed freely, and (b) those who have a career path and can only be removed with justified cause, as they had to pass certain exams to be appointed.

To settle administrative disputes, all available remedies must be exhausted before presenting a case to a judge. The Contentious-Administrative Tribunal has the authority to hear lawsuits arising from acts or resolutions made by public administration, municipalities, and other autonomous entities exercising their powers. This includes claims related to administrative contracts or concessions. The main objective of the contentious administrative tribunal is to assess the legality of the administrative procedure, and any decisions made are subject to annulment or cassation.

4.2. The Legislative Branch

4.2.1. Structure of the Legislative Branch

The Guatemalan legislative system is unicameral, composed of 160 members. The Congress of the Republic is empowered to enact laws. Members of Congress are elected directly by the people through universal suffrage for a term of four years and through electoral districts. Formerly, each electoral district had the right to elect at least one Member of Congress, subject to the number of inhabitants per district.

Nevertheless, the “Ley Electoral y de Partidos Políticos” was reformed in 2016; hence the way Congress was elected changed. Per the law, members of Congress are elected by (a) electoral districts and (b) national list. The number of representatives elected is prescribed by law and no longer depends on the number of inhabitants of the district.

The Legislative Branch is governed by both the Constitution and the Legislative Branch Law, as stated in Decree 63-94 of Congress. In addition, the plenary session of Congress has established interpretive dispositions regarding debates and sessions, known as precedents, which can be invoked as a source of law. Systematizing these precedents falls on the secretary of Congress, who must compile them in a special book for future reference. It is important to note that the precedents approved by the plenary session of Congress can neither limit the rights of representatives of Congress nor alter parliamentary procedures. Rather, they serve to complement existing rights and clarify established practices.[93]

Congressional precedents refer to dispositions enacted by Congress regarding their internal regime, which do not require Executive Branch approval. The Constitutional Court has emphasized the significance of these precedents and has drawn from American doctrine to explain them. It has been noted that power within Congress does not flow solely from the top down but in all directions. As such, rules and policies are not established by a single authority but rather by all members of Congress. Precedents, therefore, serve as the “common law” of Congress, regulating many procedures not explicitly outlined in formal statutes governing their actions.[94]

To understand how Congress operates, it is essential to first examine the various organs that comprise it. These include the Plenary Session, the Board, the President, the Permanent Commission, the Human Rights Working Committee, the Working Committees, and the Board of Block Chiefs. The highest authority in Congress is the plenary session, consisting of all members of Congress and requiring an absolute majority to convene. This session occurs on January 14, following the election of Congress.

When making decisions, there are two types of majorities outlined in the law: (a) absolute majority, requiring half the representatives of the plenary session plus one to vote in favor, and (b) qualified majority, which requires two-thirds of the representatives of the plenary session to vote in favor. The law specifies which type of majority is necessary for each decision.

The board of Congress consists of a President, three Vice-Presidents, and five Secretaries elected by electoral roll for a one-year term. The President of Congress directs and executes the functioning of the organ. During recess, the Permanent Commission takes over the Board’s duties, led by a President and three Secretaries. The Human Rights Working Committee, comprising a member of Congress from each political party, proposes candidates for the Ombudsman to the plenary session of Congress. Thirty-eight working committees oversee informing Congress of the matters subject to their consideration and amending bills presented to them partially or wholly, making their role in enacting laws crucial (see supra).[95]

Lastly, the board of Block Chiefs works weekly with the Board to organize the sessions and the topics addressed. A legislative block is constituted by one or more elected Members of Congress of the same political party. In 2023, the board of Block Chiefs is composed of 19 members, as there are 19 political parties represented in Congress.[96]

The Congress of the Republic holds two annual ordinary working sessions from January 14 to May 15 and from August 1 to November 30. Apart from these sessions, extraordinary sessions can be called upon by the President of the Republic, the Permanent Commission, or 25% of the Members of Congress. The session’s agenda must be included when it is called.

Ordinary and extraordinary sessions are the most common but not the only ones. The session usually lasts three hours, and after that, the President must consult with the Plenary Session of Congress on whether to continue or terminate the session.

An absolute majority of representatives take the decision. However, when a matter is urgent, Congress can declare a permanent session, which will continue until the matter is thoroughly discussed and concluded. Sessions can also be public or secret, with the general rule being that they are public. However, they are deemed secret when the subject concerns military matters, national security, pending military operations, pending diplomatic matters, or national security. Finally, the solemn session takes place when working periods are open or closed, Congress swears in the President or Vice-President of the Republic, the President of the Judicial Branch, Justices of the Supreme Court of Justice, receives foreign chiefs of States, or commemorates national anniversaries.

One topic that may be addressed during regular sessions is the interpellation of Ministers. As per their right, Members of Congress can question State Ministers, who must attend and respond to inquiries. This duty is integral to the separation of powers, which forms the basis of the State. Congress members can question the decisions and actions of Ministers through interpellation, as per the Constitution. No authority can restrict the range of questions during this process. If the answers are unsatisfactory, Congress members may pass a vote of lack of trust. If an absolute majority of all Congress members approve this vote, the Minister must resign.

However, the President has the authority to accept or reject the resignation. If the President deems the Minister’s actions in line with government policies, the Minister may return to Congress to explain their position. Congress will then vote again, and if 2/3 of its members ratify the vote of lack of trust, the Minister will be removed from their position immediately.

The legislative branch must make all acts public as members of Congress are representatives of the people. This entails publishing them in the official diary and making them available in digital format for easy access by the public.

4.2.2. Process for Enacting Laws

The process for enacting laws is superficially regulated in the PCR, whereas the law and the legislative branch regulate it with more detail. It requires a presentation of a bill and three readings by Congress in three separate sessions.

As a first point it’s important to know who has the possibility to present a bill, namely, the members of Congress, the Executive Branch, the Supreme Court of Justice, the State University, and the Supreme Electoral Tribunal. When the bill is presented by the members of Congress, those who presented to me briefly express the motive behind it and once the plenary session of Congress has heard it, it will be sent to the corresponding work commission. Whereas if the bill is presented by any of the other subjects, it will be immediately sent to the corresponding work commission.

When analyzing a project, the working commission members may propose amendments to its content. In this case the subject of the proposed appeal may be heard to discuss the amendments and if the person does not present themselves, then the commission may continue with its study.

Once the analysis has ended, the commission will send its project both in paper and in digital to the Legislative Direction for registration so that it can be sent to the members of Congress for its discussion. During the first session of discussion, the project will not be read, only the conclusions of the commission. During the second and third sessions the project of the bill may be read, and it will not be approved until it has been sufficiently discussed, except for those cases where the members of Congress declared that the bill is of national urgency. For a project to be declared of national urgency, two-thirds of the members of Congress must vote in favor of the motion. Once the bill has been thoroughly analyzed and approved by the vote of an absolute majority, the final draft is published.

Then the bill is passed to the Executive Branch where the project may be approved or vetoed. The President may exercise the right to veto a law within the 15 days after having received the project. On the one hand, if it is indeed vetoed, then the board of Congress must notify the plenary session of Congress so that the observations made can be rejected or the project reconsidered. Once the plenary session of Congress has read the reasoning sent by the President, it can be accepted, rejected, or sent to a special working commission to analyze the project and present a report. After receiving the conclusions, the plenary session of Congress reads it, and if two-thirds of the members of Congress reject the veto, then the President must sign and order the publication of the law. On the other hand, if the project is accepted by the President, then it will be signed and order the publication of the law order the publication of the law.

In both scenarios, the draft becomes final, and the text is sent for publication in the Official Gazette. The general rule is that laws passed by Congress require the vote of an absolute majority. However, in some cases a decree may require a higher majority to be passed. Article 172(l) of the PCR enumerates the cases in which a qualified majority is needed. These cases pertain to the approval of treaties, conventions, or other international arrangements:

• When they refer to the passage of foreign military troops through the national territory or the temporary establishment of foreign military bases.
• Concerns or could concern the security of the State or end a state of war.

4.2.3. Attributions of Congress

As a result of being one of the three branches of power, Congress has many attributions, but three of them will be particularly analyzed.

4.2.3.1. Approval of the State Revenue and Expenditure Budget

The State Revenue and Expenditure Budget has its foundation in the Constitution. It is stated that this budget is approved for every fiscal year and includes an estimate of every revenue and expenditure for the year. The law that needs to be enacted by Congress every year must regulate three specific matters namely: the budget of revenue, the budget of expenditures and general dispositions. For this law to be enacted, the Executive Branch must present to Congress the project of State Revenue and Expenditure Budget with at least 120 days prior to the corresponding fiscal year, i.e., the latest date to present the project is September 2 of every year. It is important to mention that if Congress does not approve the general budget for the next year and the fiscal year begins then the prior budget will be applicable.

In 2021, Congress seeks to approve the biggest budget in the history of the country, equivalent to US$12.8 billion. Therefore, not only of the number but also because of the destination of the expenditures, many protested in front of Congress and even burned the building. The criticism resided on the fact that in a country where more than half of the population lives in extreme poverty, the budget sought to favor the private sector over those in need. Because of the protests, the project was reversed, and the prior year’s budget was once again approved.[97]

4.2.3.2. Public Officials Designated by Congress

Because of the principle of checks and balances, Congress has the responsibility to designate public officials, which are:

• The Justices of the Supreme Court of Justice.
• The Magistrates of the Court of Appeals.
• One Justice of the Constitutional Court.
• The Ombudsman.
• Magistrates of the Supreme Electoral Tribunal.[98]
• One member of the Monetary Board.[99]

4.3. The Judicial Branch

The Judicial Branch is entrusted with the duty and the authority to render justice independently. To this end, the Judicial Branch Law, decree 2-89 of Congress, states that in exercising the sovereign power delegated to it by the people of Guatemala, the Judicial Branch must impart justice by the text of the Constitution. There is a duty imposed on all organs of the public administration to assist and cooperate with the Judiciary in the administration of justice.

One of the foundations of the Judiciary is independence, which is guaranteed by: (a) functional independence; (b) economic independence; (c) Justices and Magistrates may not be removed; and; (d) selection of personnel.

Despite the constitutional obligation to protect the independence of the Judicial Branch, as per the World Justice Project, Guatemala is ranked 110 of all the countries scored by an overall overview. Regarding civil justice, Guatemala is in position 135 out of 140, and regarding criminal justice, Guatemala holds position number 127 out of 140. This shows that protecting both independent justice and the administration of justice is not a reality in Guatemala.[100]

In the Guatemalan System, the different courts are distinguished according to whether they have exclusive or ordinary jurisdiction. The Judicial Branch Law establishes the principles that courts must follow and the competence of courts with their respective appeals system. Concerning the appeals system, the PCR imposes a two-tier system, not allowing more than two instances. Annulment and Amparo are not considered appeals or a third instance, as they do not revise the content of the decision but rather its legality.

The general requirements to be a Justice or judge are to be Guatemalan, from recognized honorability, and to be a lawyer. Additionally, it’s essential to make a distinction between (a) elected Justices or Magistrates, e.g., Justices of the Supreme Court of Justice or of the Constitutional Court, who are subject to a five-year term, and (b) Judges that are part of the judicial career, who are irremovable unless they are separated from their position by the Supreme Court of Justice because of a disciplinary process that derived from the commission of an offense per the Ley de la Carrera Judicial or Law of the Judicial Career.

4.3.1. Guatemalan Court System

The Judicial Branch Law jurisdiction is indivisible. The following is a general description of the Guatemalan court system:

The Supreme Court of Justice and its Chambers is the highest Court in the Republic, composed of 13 Justices. It is divided into three chambers: civil, criminal, Amparo, and Antejuicio. In addition to requirements already mentioned, there are specific requirements to be a justice of the Supreme Court, namely, to be over 40 years of age, having been a Magistrate of the Court of Appeals or a tribunal of the same category and, having exercised the profession of law for over ten years.

Congress elects the Supreme Court Justices for a term of five years from a list of 26 candidates proposed by a special commission. This commission consists of a representative of the country’s university rectors, who serves as president, the deans of each university’s law faculty, an equal number of representatives from the Bar Association, and an equal number of representatives from the Court of Appeals magistrates.

The thirteen Justices are elected simultaneously and for the same term. In contrast, in other countries the election of Justices is done in different periods to secure the independence of all of them. The Supreme Court is integrated by 21 Justices, who will be elected for a term of nine years but said election would be made by thirds every three years.[101] Justices are elected, and the President of the Supreme Court is elected with a two-thirds vote from the Justices for a one-year term and cannot be reelected. This elected President will not only act as the President of the Supreme Court of Justice but also as the President of the Judicial Branch. It is important to note that as the Justices do not have substitutes, the Court of Appeals provides substitutes in case of a vacancy or the reputation of a justice.

Despite the clear constitutional provision of a five-year term, Guatemala has not elected Justices for the Supreme Court of Justice or the Appeals Chamber since 2019. As a result, the current Justices and Magistrates in office lack legitimacy and have held their positions for four years without a proper election. The Public Prosecutor, Head of the Public Prosecutor’s Office, presented an Amparo to prevent the election as the list of candidates provided to Congress was allegedly manipulated and contained ineligible candidates who were neither capable, honorable, nor suitable as per Article 113 of the constitution.

The Constitutional Court granted the Amparo, but with the condition that the Public Prosecutor must provide a report to Congress detailing the individuals being investigated by the Public Ministry. The Board was then given a 24-hour window to distribute this information to all elected members of Congress. These members were then allotted 20 days to analyze the report and vote for the Supreme Court of Justice and the Court of Appeals members. During the election session, the Constitutional Court mandated that the votes be conducted publicly, with each member providing reasons for their decision. Despite the Constitutional Court’s ruling, Congress has yet to fulfill its responsibility in electing Justices.[102]

In addition, the Chief Justice requested the Constitutional Court to provide their stance on extending the term for the Justices and Magistrates of the Supreme Court of Justice and the Court of Appeals. The Constitutional Court replied that to ensure the smooth functioning of the judicial system, the current Justices and Magistrates must continue to serve until their replacements are duly elected.[103]

Courts of Appeals comprises several chambers designated by the Supreme Court of Justice. The Supreme Court of Justice is responsible for declaring each chamber’s matters, competence, and headquarters. Each chamber comprises three magistrates and two substitutes, with the magistrate appointed by the Supreme Court of Justice serving as the presiding officer.

Similar to the Supreme Court of Justice requirements, becoming a magistrate in a Court of Appeals requires being at least 35 years old and having either served as a first instance judge or practiced law for a minimum of five years. The selection process for Court of Appeals magistrates involves being elected by Congress from a list that is double the number of magistrates needed. This list is presented by a special commission of representatives from various universities in the country, the dean of every law faculty, members elected by the bar association, and representatives elected by the Supreme Court of Justice justices.

Usually, they receive appeals cases from the initial trial. They also handle specific issues that fall under their sole jurisdiction, such as the impeachment of (a) mayoral candidates, (b) elected mayors, (c) mayors, (d) elected members of Congress, (e) congressional candidates, and (f) governors.

Division of Child and Adolescence is based on the Law for the Protection of Childhood and Adolescence, specifically Decree 27-2003 of Congress and Decree 31-2003 of the Supreme Court of Justice. The primary goal of this law is to safeguard the welfare and growth of children and adolescents. It establishes various rules in handling matters concerning this specific demographic to achieve this. The Child and Adolescence courts are responsible for overseeing cases related to minors. In contrast, the Adolescents in Conflict with Criminal Law court is tasked with supervising the implementation of measures since criminal law cannot be applied to them in the same way as it is to adults.

Contentious-Administrative Tribunals are established based on Article 221 of the Constitution, and according to the Contentious-Administrative Law, this procedure only has one instance and aims to review the legality of administrative procedures. The selection process for a Justice of this type is the same as that of the Court of Appeals.

The foundation of the Appellate Court of Accounts can be traced back to the Law of Tribunals of Accounts. This tribunal comprises three justices and three substitutes, elected by Congress in a manlike the Court of Appeals. The tribunal has exclusive jurisdiction over matters relating to accounts. The primary objective of these proceedings is to ascertain whether the national or specific institutions’ patrimony has experienced significant losses because of their management.

To become a member of this tribunal, one must be a Guatemalan citizen, at least 18 years old, and either a lawyer or accountant with a minimum of five years of professional experience in either of those fields. Alternatively, one must be an expert in fiscal matters with a practice of over 15 years.

First Instance Courts handle cases related to civil, commercial, criminal, labor, and family matters. The Supreme Court of Justice has the power to determine their location and scope of authority, particularly in areas where multiple courts exist. Having at least one First Instance Court in every department is mandatory.

Minor or Peace Courts also referred to as “justices of the peace” refers to individuals who perform judicial functions within their respective municipalities. This title may also be given to mayors who assume the responsibilities of a justice of the peace in municipalities without one. Each departmental head must have at least one of these courts and the jurisdiction may be expanded by the Supreme Court of Justice based on the population of the municipalities.

Any other courts established by law: Finally, it should be noted that according to the Constitution, the jurisdictional function is exclusive. However, there has been a recent discussion regarding indigenous justice. Guatemala has ratified Convention 169, also known as the Indigenous and Tribal People’s Convention of 1989, an International Labor Organization Convention. This Convention is significant because it recognizes and regulates indigenous justice as complementary to regular justice, and the Constitutional Court has acknowledged its compatibility with the Constitution.[104] The recognition mentioned has also been acknowledged by the Supreme Court of Justice.[105]

Specific requirements must be met for indigenous justice/law to be applied and ensure legal certainty. Firstly, individuals subject to this type of justice must be community members and have a strong connection to the culture, customs, and traditions. Secondly, the incidents must have occurred within the community’s territory. Thirdly, a well-established system for resolving disputes must be in place and accepted by community members. Lastly, the dispute must directly impact on the community’s interests.[106]

4.3.2. Judicial Career

As mentioned earlier, the Judicial Branch comprises elected Justices and Magistrates, as well as Judges who are part of the judicial career. The Law of the Judicial Career, also known as “Ley de la Carrera Judicial,” specifies that entry into the judicial career is possible either through appointment by the Supreme Court of Justice for Minor Piece Courts and First Instance Judges, or by Congress for Magistrates of the Court of Appeals and tribunals of the same category, and Justices of the Supreme Court of Justice. This implies that the Law of the Judicial Career applies to both types of Judges in the Judicial Branch.

The Council of the Judicial Career, a technical organ within the Judicial Branch, is responsible for administering the judicial career. The Executive Secretary of the Council executes its decisions. The council comprises the President of the Judicial Branch and the Supreme Court of Justice, one magistrate and substitute from the Court of Appeals, one judge and substitute from the First Instance Judges, and one judge and substitute from the Minor Peace Courts.

The Council of the Judicial Career organizes competitive examinations for vacant positions based on a prior assessment. Once candidates have applied, the Council creates a list of names, which is forwarded to the School of Judicial Studies. The school conducts tests to assess candidates’ knowledge and skills. Its primary role is to plan, execute, and facilitate the training of judges, magistrates, and Judicial Branch employees, ensuring efficient and up-to-date administration of justice.

After completing the evaluation process, the Council of the Judicial Career creates a list of eligible candidates approved by both parties. These candidates can then attend the initial formation course of the School of Judicial Studies, which lasts for a minimum of eight months. Once the course is completed, the School of Judicial Studies prepares a list of candidates who have passed. The Council of the Judicial Career will inform the candidates of the results. Candidates who pass the exam become eligible for the vacant positions of Minor Piece Courts, which marks the beginning of their judicial career.

Apart from the organizations, disciplinary bodies are part of the Judicial Career. These include the Judicial Disciplinary Board and the Judicial Disciplinary Board of Appeals. Both have permanent and administrative roles and manage the disciplinary process against judges who commit offenses and apply the corresponding penalties.

4.4. Administrative Law

Most administrative law deals with regulating and creating entities or relationships that enable the state to achieve its objectives. Article 134 of the constitution establishes the decentralization and autonomy of various institutions. Decentralization refers to assigning administrative functions or powers to an organization, as provided by law, which can make decisions without any existing subordination. On the other hand, autonomous institutions have the freedom to manage their funds and make choices. Autonomous decentralized state organs follow their own constitutive regulations and derive their category mainly from the Constitution. However, they can also be established with the approval of two-thirds of Congress members, as in the case of the organic law of the Superintendence of Banks, the Guatemalan Institute of Social Security, and the Guatemalan Institute of Tourism.

Guatemala is a democratic republic formed by the state organs set forth in the PCR. For administrative purposes, it is divided into twenty-two departments, which are each divided into municipalities. The municipal government is carried out in an autonomous manner and is exercised by a Municipal Council presided over by a mayor; all members being elected by popular vote. The Municipal Code, decree 12-2002 of Congress sets forth in detail the competencies of municipalities.

It’s crucial to clearly understand what a municipality is before approaching its government. A municipality is the fundamental unit of territorial organization in the State, and it serves as the direct platform for citizens to participate in public affairs. The Constitution ensures that municipalities have autonomy and the freedom to elect their authorities to govern and manage their residents’ interests. They have two types of responsibilities: those provided by law and those delegated by the centralized government and accepted by the municipality. The General Law of Decentralization governs such delegated responsibilities. Additionally, municipalities have the power to acquire rights and assume obligations due to their autonomy.

The municipal government operates similarly to the three branches of the state’s power. The Municipal Council is the primary body for making decisions on municipal matters and possesses legislative and judicial authority. The mayor is accountable for implementing the public policies established by the Municipal Council.

Apart from the organs mentioned earlier, a municipality may possess a municipal police force under the mayor’s command and a Municipal Affairs Court, which is considered an administrative organ, if feasible and if the resources are available. The Municipal Affairs Court’s function is to execute the provisions dictated by the municipal council or the law. Its jurisdiction is confined to the municipality’s territory. Together with the mayor, both entities form the executive branch of the municipality.

The municipal council’s decision-making procedures are comparable to those set out in the Legislative Branch Law. The council’s meetings can be categorized as ordinary or extraordinary, permanent or urgent, ceremonial or solemn. The meetings are considered ordinary when the mayor summons them at least once a week, while the second meeting summoned by the mayor or other members of the council is regarded as extraordinary. A meeting can be referred to as permanent if the matter discussed is of sufficient urgency. Lastly, the Municipal Code does not explicitly define what constitutes a ceremonial or solemn meeting, but they are considered special occasions. All of the decisions made in any of these meetings must be ratified by an absolute majority.

Finally, to safeguard the interests of the neighbors in various municipalities, it is possible for these municipalities to form associations. These associations are established as public institutions with their own legal identity, separate from each municipality’s legal identity. By forming these associations, public policies can be developed and implemented across all the territories involved.

It is worth noting that according to the Municipal Code, the municipal government is obligated to acknowledge, honor, and advance the indigenous alcaldías or auxiliary mayors. These leaders are recognized as key figures and advocates for their respective communities, particularly regarding decisions that may have an impact on them. It has been demonstrated that these auxiliary mayors play a vital role in determining matters of safety and justice in the areas under their jurisdiction.[107]

4.4.1. Access to Public Information

Guatemala has implemented a Law of Access to Public Information to promote transparency within the public administration. This law, issued under Congress decree number 57-2008, ensures that interested individuals have the right to access all information related to them in public records. Additionally, it grants access to information from entities that manage or use public resources upon request.

Generally, all information is accessible upon request. However, some information is excluded from this rule. Confidential information cannot be accessed if it is legally restricted or given to public institutions under a confidentiality guarantee. On the other hand, reserved information is temporarily restricted by law or classified as such due to its subject matter. Moreover, this legislation ensures that individuals have the right to manage and alter the information that the state has. This assurance is called habeas data, meaning “you should possess your data.”

The existence of this institution can be attributed to the impact of technological advancement on individuals’ rights and freedoms. In comparison, having access to data assures individuals that they can monitor and manage the information being stored and processed in databases.[108] The concept of “the right to information self-determination” was established in Europe, particularly in Germany, by the constitutional tribunal’s interpretation of existing human dignity and personality rights.[109]

Although there are regulations in place and clear objectives regarding the protection of individual rights, the constitutional court has emphasized that the best way to safeguard privacy is through using an Amparo, rather than Habeas Data. This legal mechanism allows individuals to access their personal information in databases or registries, allowing them to correct, delete or keep their data private.[110]

4.5. Other State Organs

The entities listed below are classified as independent state organs and are not subject to the jurisdiction of any of the three primary branches of government. However, they are obligated to work in full cooperation with them. The PCR serves as their legal foundation.

4.5.1. Public Prosecutor’s Office

The Public Prosecutor’s Office serves as a support system for the government and judiciary. In public offenses, criminal proceedings are considered public and can be initiated by the Public Prosecutor’s Office, the victim, or any citizen. The Public Prosecutor’s responsibilities and authority are outlined in the Organic Law, decree 40-94 of Congress.

The Public Prosecutor holds the position of Chief of the Public Prosecutor’s Office and is accountable for its operations. Their authority spans across the Republic and the President appoints them to serve a four-year term from a list of six candidates suggested by a commission consisting of: (a) the President of the Supreme Court of Justice, who acts as the chair; (b) the Deans of the Law faculties of the universities of the country; (c) the President of the Board of the Bar Association and; (d) the President of the Court of Honor of the Bar Association. The Public Prosecutor is eligible for re-election.

To ensure that the Public Prosecutor’s Office serves its purpose, it may require assistance from any public servants and/or organization or power of the State, and these institutions are obliged to furnish the necessary information.

In 2007, the International Commission against Impunity in Guatemala (CICIG) was established under an agreement between the UN and the Guatemalan Government that came into effect on 4 September 2007. CICIG is an independent, non-UN body with a mandate to conduct investigations and assist local institutions, particularly the Office of the Public Prosecutor, to eradicate illegal armed groups and clandestine security organizations. It can also join criminal proceedings as a private prosecutor to help bring high-profile cases to trial before the national courts, recommend laws and policies, and enter into cooperation agreements to carry out its full mandate.

The Commission was created under Guatemalan legislation but with a delegation of authority to the Secretary-General of the United Nations to designate the Commissioner. It has an unprecedented mandate among UN or other international efforts to promote accountability and strengthen the rule of law. It is the first hybrid mechanism whose subject matter jurisdiction is not related to serious human rights violations but rather to dismantling organized crime. CICIG had a two-year mandate, which has been extended four times since 2009. In 2017, then-president Jimmy Morales terminated the mandate of CICIG.[111]

4.5.2. Attorney General’s Office

The Attorney General has specific powers and duties outlined in Decree 512 of Congress, which also used to be the organic law of the Public Prosecutor’s Office. Their responsibilities include representing the State and protecting its rights and interests using legal or other appropriate means. The Attorney General is also responsible for initiating legal proceedings of any kind, aiding courts, and public administration, and serving as a legal advisor. The President appoints the Attorney General for a four-year term.

Although the law provides some regulation for the Attorney General’s Office, it is still considered superficial. Congress proposed a new organic law, Decree 67-2002, to address this issue. However, it was vetoed by the President of the Republic, and no further progress has been made on the matter since then.

4.5.3. Ombudsman

The Ombudsman is tasked with investigating allegations of human rights violations outlined in the Constitution and international treaties ratified by Guatemala. Additionally, they work towards promoting efficiency and management in the realm of human rights.

The National Human Rights Committee provides a list of candidates for the Ombudsman position, from which Congress appoints someone for a five-year term. While the Ombudsman is a member of this committee and presents an annual report on human rights through it, they operate with complete independence.

The current Ombudsman, Alejandro Córdova, has launched a criminal process against former Ombudsman Jordán Rodas regarding an alleged anomaly in his compensation application. However, the complaint does not provide clear information on the details of the situation.[112]

5. Sources of Law

Article 2 of the Judicial Branch Law enumerates the sources of law recognized by the Guatemalan legislation. In said article, the law is the primary source of the juridical internal order, and jurisprudence shall complement it. Custom can only be invoked in the absence of an applicable law insofar as it is not contrary to the morals or public order and is duly proven.

According to the mentioned law, there are two types of customs: secundum legem and praeter legem. The former is a custom that supports the law, while the latter fills the gaps in situations the law does not cover.[113]

The Constitutional Court has examined the president’s authority to create regulations that expand upon laws passed by Congress. The court has determined that such regulations should enable the execution of the law, in accordance with legal provisions. Additionally, the president has the power to enforce administrative laws that go beyond mere executive functions, known as praeter legem rules. Although this decision does not specifically address customs, it acknowledges the various ways in which laws can be supplemented.

5.1. Legislation

Guatemala is a civil law jurisdiction in which legislation is considered the primary source of law, especially through codification. In that sense, laws are only valid once the complete enactment procedure is followed and come into force once published in the Official Gazette. Unless otherwise provided, the entry into force of every law is eight days from its publication in the Official Gazette. Below is an illustration of the traditional hierarchy of laws in Guatemala:

5.2. Treaties

The PCR only contains one express provision defining the internal status of treaties within Guatemala:

“Article 46. Preeminence of International Law. It is established as a general principle: that in the matter of human rights, treaties and conventions accepted and ratified by Guatemala have preeminence over internal law”

Concerning the scope of the expression “internal law”, the legal question that is presented is whether the PCR must be regarded or not as forming part of domestic law. This question is answered in the jurisprudence of the Constitutional Court: when the constituent legislator mentioned internal law, the constitutional norms are not included within this statement.[114]

The PCR abides by the principle of constitutional supremacy whereby any law, governmental resolution, treaty or provision of any nature is ipso jure null and void if it contradicts, restricts or diminishes the constitutional text. Thus, the Constitution is above any law, governmental resolution, or provision of any nature, including treaties, except when the treaty relates to human rights.

In practice, the matter of hierarchy only becomes relevant once a legal conflict arises. Meanwhile, international law and domestic law have for the most part separate fields of operation, and each is supreme in its own domain. Nevertheless, on occasion they have a common field of application, and should a conflict arise, what is implied is a conflict of obligations.

The conclusion is that the principle of constitutional supremacy, as described before, does not include the PCR as part of domestic law in the terms spelled out in article 46. Admitting to such a rule would weaken the importance and strength of the Constitution within the Guatemalan legislation. Additionally, this would allow for constitutional provisions to be superseded through treaty-making processes. Article 3 of the Law on Constitutional Protection and Actions is clearer in that sense stating as follows:

“The Constitution prevails over any law or treaty. Notwithstanding, in the matter of human rights, treaties and conventions accepted and ratified by Guatemala prevail over internal law.”

The Constitutional Court, or CC, has been called upon to deal with this matter. In its jurisprudence, the CC considered the articles of the PCR could not be read and interpreted in isolation. Any constitutional interpretation should be extensive and consider the rest of its provisions. Therefore, the only interpretation applicable to article 46 is that the Constitution does not form part of domestic law because other constitutional provisions recognize the Constitution as the supreme norm.

The CC has also accepted that when a provision of human rights treaty differs from a constitutional norm, the norm that should prevail is that which favors and benefits Guatemalan nationals the most. Although this case can place human rights treaties on a higher level than the Constitution, it would not present a conflict of hierarchy since the PCR is regarded as a normative body of minimum rights, always subject to improvement and expansion to other rights and liberties.

Through the judicial decisions of the Constitutional Court, the protection and recognition of human rights resulted in the application of a fascinating concept known as the “constitutional block.” This was in response to an interesting case involving the criminal code’s omission, which was deemed unconstitutional considering the Convention Against Torture. The constitutional block comprises principles and norms that are not explicitly stated in the Constitution but are integrated into it to measure the constitutionality of laws. This notion originated in France and was created to acknowledge human rights not expressly recognized in the constitution. The constitutional block serves as a means of receiving international human rights law, ensuring compliance with international obligations, and safeguarding human rights.[115]

In Guatemala, then, and based on several rulings of the CC, human rights treaties are at least on an equal footing with the Constitution. Both the PCR and any human rights treaty would overrule any other law, governmental decree and even any other subject-matter treaty in the event of a legal conflict. Even when the subheading of article 46 of the PCR refers to the “preeminence of international law,” it does not refer to all the sources of international law, but only treaties, and not even all types of treaties, but exclusively those regarding human rights.

Sources articulate what the law is and where it can be found. On the domestic plane, article 2 of the Judicial Branch Law spells out that custom will only rule in the absence of an applicable law, and if it is evidenced and not contrary to morals or public order.

On the international plane, article 38 of the Statute of the International Court of Justice, or ICJ, confers a guide on how the legal quality of alleged rules of international law is assessed. Guatemala recognizes the additional sources spelled out in Article 38. Although Article 38 does not mention the word “sources” but rather spells out how the Court is to decide disputes which may come before it for settlement, said article is still regarded as an authoritative statement on the sources of international law. It should also be noted that Guatemala has made a declaration recognizing the jurisdiction of the ICJ as compulsory.[116]

It is worth noting that the ICJ dispute was submitted by both Guatemala and Belize regarding Guatemala’s claim to territorial, insular, and maritime boundaries. The objective is to establish clear borders between the two states.[117] Guatemala’s recognition of other sources of international law is contained in Article 149 of the PCR concerning international relations. Said article provides that: “Guatemala will govern its relations with other States by the principles, rules, and practices of international law […].” This article incorporates the reception in the domestic law of any principle, rule, and practice of international law, including the recognition of customary international law.

The CC has declared that Article 149 of the PCR contains the rule that no State can invoke internal law to justify non-compliance with international obligations. In addition, the CC has also considered that the conventional provisions of international law should be interpreted by the principle of pacta sunt servanda […].

Guatemala ratified the Vienna Convention on the Law of Treaties of 23 May 1969, or VCLT, in 1997. As of that moment, no doubt was left about the status of all subject-matter treaties over domestic legislation. This fact can be extracted from the provisions of the VCLT.

Article 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Article 27: “A party may not invoke the provisions of its internal law as justification of its failure to perform a treaty.” Article 46: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”.

Furthermore, the Guatemalan Government made a reservation regarding article 27 of the VCLT declaring that the PCR was not to be understood as domestic or internal law. With this reservation, the principle of constitutional supremacy was confirmed and the hierarchy of all treaties over internal laws was defined. In 2007, Guatemala withdrew the rest of its reservations to the VCLT.

The President sought the Constitutional Court’s opinion on the convention’s constitutionality, which led to a change. The Court analyzed the reservations made due to the PCR’s rule that a treaty must first be approved by Congress, then ratified by the President to be considered internal law. However, the VCLT did not follow this ad referendum procedure. The Court found that all ways of giving consent under Article 12 of the VCLT respected state sovereignty and their chosen negotiation terms. Hence, the ad referendum procedure for treaty ratification outlined in the constitution was respected, except for the reservation regarding Article 27.

Although this issue was clarified after Guatemala’s ratification to said treaty, uncertainty still rests regarding the regulation prior to this moment. It can be argued that all treaties had the same status over internal law even before the entry into force of the VCLT. To this effect, articles 26 and 27 of the VCLT were recognized as customary international law before the VCLT came into force. In that sense, article 38 of the Statute of the ICJ and article 149 of the PCR support that customary international law is part of Guatemalan legal system.

It is worth noting that the articles declared as customary international law hold significant weight. As per the Statute of the ICJ, Guatemala is obligated to abide by the rules contained within these articles, regardless of any reservations made.[118]

5.2.1. Competencies of State Powers Concerning International Treaties

The President of the Republic, in his capacity as Head of State, is the representative of the Nation before the international community. Article 183, section “o)” of the PCR entrusts the President with the administration of foreign policy and international relations and the execution, ratification, and denunciation of treaties and conventions following the Constitution.

The Vice-President can participate jointly with the President in formulating foreign policy and international relations. According to the Executive Branch Law, the following Ministries have treaty-related powers:

• The Ministry of Foreign Affairs: Coordinate, analyze, support, and follow up on the negotiation of conventions related to trade, investment, loans, tourism, the environment, transportation, communications, science and technology, economic integration, labor, extra-regional integration, energy, intellectual property, international technical and financial cooperation, education, training, and others.
• The Ministry of Labor: In coordination with the Ministry of Foreign Affairs, represent the State before international organizations related to its competency and in the negotiation processes on the international convents on labor, as well as the application of those in force.
• Ministry of Health: Must seek the fulfillment of international treaties and conventions related to health in emergencies caused by epidemics and natural disasters.
• The Ministry of Economics: Conducting, under the delegation of the President, negotiations on bilateral and multilateral treaties and conventions on international commerce, as well as their execution once ratified. Additionally, this Ministry must secure the Central American Trade Integration processes, the negotiations of free trade agreements, and the formulation and execution of tariff policies.

In Guatemala, the laws passed by Congress are known as “decrees of the Congress of the Republic.” Sometimes, the PCR allows the President to ratify a treaty only after the legislature approves. Therefore, some treaties require a previous examination by Congress as a safeguard to prevent the Executive from using its treaty-making competence to introduce domestic legislation without going through the necessary legislative procedures.

In other cases, treaties do not require an enabling act, meaning that any other treaty that does not fall within the following situations does not need to pass through Congress. The approval of Congress before the ratification of a treaty, convention, or any other international agreement is required when:

• It affects a law in force that requires the same majority approval as this Constitution.
• It affects the territorial control of the Nation, establishes the Central American economic or political union, in whole or in part, or confers or transfers competencies to organizations, institutions, or mechanisms created within a communitarian legal framework to achieve regional or common objectives in the Central American sphere.
• It represents a financial commitment for the State to an undetermined amount or exceeds by 1% the National Budget of Ordinary Income.
• It constitutes a commitment to submit any issue to judicial decisions or international arbitrations.
• It contains a general arbitration clause or the submission to international jurisdiction.
• Appoint commissions of inquiry on specific public administration matters that represent problems of national interest.

In section 4 above, a reference was made to Article 172 of the PCR enumerating the cases in which a two-thirds majority by Congress is required to approve treaties, conventions, or other international arrangements; these refer to the passage of foreign military troops through the national territory, the temporary establishment of foreign military bases or could concern the security of the State or end a state of war.

Congress does not enjoy the competence to act on the treaty itself and thus Congress cannot repeal a treaty. Specific procedures must be followed when a treaty conflicts with a norm that wishes to be enacted by Congress, such as the denunciation of the treaty.

Regarding the Judiciary Branch, article 204 of the PCR establishes that the courts will observe the principle that the PCR prevails over any law or treaty. The latter means that any judgment issued by the national courts of Guatemala must observe the principle of constitutional supremacy.

As previously stated, human rights take precedence over internal law when they are the subject of a treaty, including the PCR. This is particularly relevant to the judiciary due to the “conventionality control” established by the American Convention on Human Rights, as demonstrated in the Almonacid Arellano and others v. Chile case. According to this ruling, judges must examine the relevant law in each case, the American Convention on Human Rights, and related interpretations from prior decisions. Furthermore, this obligation extends to all branches of government, not just the judiciary.

5.2.2. Approach to the Reception of International Law Within Domestic Law

The approach of a particular state to international law will be characterized by that state’s attitude to and reception of international law. This attitude may and does differ according to the type of international law in question, treaty, or customary international law. Strictly speaking, a state’s reception of international law is a matter of domestic legislation. If a country is “monist,” it accepts international law automatically as part of its domestic law. It does not demand an express act of the legislature. In contrast, if a state is “dualist,” international law will only become part of its domestic law if it has been expressly adopted through a legislative act.

Article 149 of the PCR admits customary international law as part of domestic law insofar as it governs international relations by international principles, rules, and practices. This means that a rule of international law can be enforced without being enacted by Congress. This is only valid if the existence and extent of a certain rule of international law have been duly proven to be binding and accepted by the international community and if the State never rejected it under consideration.

In 2016, the Guatemalan Constitutional Court examined a case involving the constitutionality of international crimes and prescription. The court determined that peremptory norms of international law, known as ius cogens, must be observed by all states and therefore applied by the Judicial Branch.

Denying the existence of ius cogens in the Guatemalan legal system would be unconstitutional. However, when it comes to crimes, the principle of legality must be upheld, meaning that even if a crime is classified as ius cogens, the court may still grant unconstitutionality.[119]

On the other hand, the treaties enunciated in articles 171 and 172 of the PCR must be approved by Congress before they are duly ratified and incorporated into domestic law. As for the rest of the treaties not contained in the articles, these are automatically incorporated without requiring an act by Congress.

Accordingly, concerning customary international law and treaties not contained in articles 171 and 172 of the PCR, Guatemala is monist in its approach toward incorporating international law into domestic law. As an exception, in the case of treaties described in articles 171 and 172 of the PCR, Guatemala is dualist.

5.3. Jurisprudencia

In Article 2 of the Judicial Branch Law, reference is made to “jurisprudencia”. This mention is important because the expression “jurisprudence” is equivalent to what is known in domestic law as “legal doctrine.” According to article 627 of the Civil Procedure Code, we have legal doctrine after five continuous uniform judgments issued by the Supreme Court (cassation/annulment) which set forth the same criteria.

Article 43 of the Law on Constitutional Protection and Actions establishes that legal doctrine is set forth by three continuous and uniform judgments issued in the same sense by the Constitutional Court. The Constitutional Court has the right to step aside from its jurisprudence, and this innovation shall not be binding for other tribunals unless legal doctrine is once again established.

6. Foreign Direct Investment

6.1. Early Regulations

A solid search to adopt legislative measures to promote international trade began in earnest in the seventies and eighties. The first regulatory bodies mainly focused on providing adequate means for greater participation of Guatemalan businesses in international trade.

Due to the search mentioned above, Decree 22-73, the law “Ley Orgánica de la Zona Libre de Industria y Comercio Santo Tomás de Castilla,” was enacted in 1973. This law aimed to promote Guatemala’s industrial and commercial development by creating a Free Zone for industry and commerce with legal personality, patrimony, functional autonomy, and regulations in the port of Santo Tomás de Castilla.[120]

Although the origin of this law was not specifically to promote foreign direct investment, it is a relevant milestone, as it does show the political intention to encourage international trade and strengthen relations in this area; as a matter of fact, foreign direct investment has been one of its consequences.[121]

Another example of such interest is the approval of Decree 65-89, “Ley de zonas francas,” in 1989. The purpose of said law has been to encourage and regulate the establishment of Free Trade Zones within the country. The law promotes national development, particularly in strengthening foreign trade, employment generation, and technology transfer.[122]

The Congress reformed this law in 2021; among the amendments was the expansion of economic activities allowed in Free Trade Zones, reintroducing to the regime productive activities such as plastic manufacturing, medicines, electronic devices, and household appliances, among others. The reforms also prohibit certain activities from being carried out in Free Trade Zone customs areas, referring explicitly to recreation centers and hotels, which were among the sectors most affected by COVID-19.[123]

Following, Decree 29-89, “Ley de fomento y desarrollo de la actividad exportadora y de maquila” was approved in 1989. This law was enacted to create the appropriate conditions to promote the investment of national and foreign capital within the Guatemalan economy.[124]

As amended in 2016, the law promotes, through tax benefits, the production of goods for export or re-export by parties domiciled in Guatemala for parties domiciled abroad. The law regulates local companies’ export and maquila activities within the total national aggregate component’s inward processing or export regimes. In constitutional actions, the Constitutional Court has ruled that tax benefits only apply to export goods or services. Therefore, if products are sold locally, the tax benefits are lost, and the obligation to pay the principal and accessory taxes arises from that point onwards.[125]

An essential fact about the reforms is that they added new industries to the beneficial tax regimes. Local parties providing services related to information and communication technologies, such as call centers or contact centers, software development centers, and digital content development companies, became eligible to apply to be a 29-89 qualified entity if their services were provided to non-residents.[126]

There have been six attempts to declare the law that contains the reforms unconstitutional, but the plaintiffs have not met the legal requirements for the Constitutional Court to decide on the case’s merits. However, in some of these decisions, the Court has examined the law’s constitutionality in its obiter dicta. For instance, an argument was made that some tax benefits only favor certain companies, which could be seen as violating the Constitutional principle of “equality.”

According to the court, the law justifies the differing treatment of companies, and it aligns with the legal principle of treating “equals equally” and “unequal unequally.”[127] Nonetheless, the judicial decisions regarding this matter do not solve the alleged unconstitutionality of the law.[128]

6.2. Further Significant Legislative Events

1996 began a series of significant events contributing to Guatemala’s more secure and attractive investment environment. The Congress passed two critical primary laws.

6.2.1. Arbitration

First, as of May 21, 1996, legislation based on the UNCITRAL Model Law on International Commercial Arbitration was enacted.[129] Guatemala is one of the UNCITRAL Model Law Jurisdictions. This law allowed for international arbitration for the first time. Arbitration may be implemented by mutual agreement of the parties involved or as mandated by law. However, according to the law, certain matters cannot be settled through arbitration.

On the other hand, some legal provisions require specific issues to be resolved through arbitration unless the parties choose to bring them to regular tribunals. An article within the law submits specific topics directly to arbitration unless the parties decide to submit them to ordinary tribunals, e.g., disputes arising from agency agreements. This article, among others, has been claimed unconstitutional, including a provision that arguably violates the right to a “natural judge” and the “access to regular courts.”

However, the Constitutional Court has ruled that such an article is constitutional since parties to an agency contract can choose ordinary courts. Without this option, the law would be deemed unconstitutional.[130]

6.2.2. Foreign Investment Law

A Foreign Investment Law (FI Law) was passed for the first time in 1998.[131] At the domestic level, foreign investors and their investments are governed mainly by what is prescribed in the Foreign Investment Law. The Investment Law was the first to exist as such in Guatemalan legislation. Previously many investment provisions existed scattered among different industry sector laws.[132]

The prior rules did not protect “foreign investment” as a particular figure; they only set forth regulatory mechanisms, performance requirements, and special rules for foreign investors. The Investment Law harmonized the existing regulations and eliminated arbitrary restrictions which limited investments within certain commercial activities.

Article 2 of the FI Law provides that foreign investors have the same rights and enforcement mechanisms as Guatemalan nationals. Nonetheless, if foreign investment deals with a part of the national economy governed by a particular law, the foreign investor shall also abide by its guidelines.

6.3. Other Relevant Bodies of Law: The Late 90s

Close to the issuance of the FI Law, other regulations relevant to foreign investment in Guatemala began to be approved. For instance, in June 1996, a securities market law was enacted. Decree 34-96, “Ley del Mercado de Valores y Mercancías,” was issued to promote the economic development of the country, protect capital, savings and encourage investment, creating the appropriate conditions to foster the acquisition of domestic and foreign capital by stimulating and increasing stock market operations in the country.[133]

This law implemented mechanisms to negotiate securities in international markets, make public offerings of deposits in foreign currencies, and provisions of a similar nature to encourage foreign direct investment in the country. Another example of promoting foreign investment in Guatemala was the approval of Decrees 94-2000, “Ley de libre negociación de divisas,” and 17-2002, “Ley monetaria.”

The former regulates the free negotiation of foreign exchange and seeks to guarantee financial intermediation in foreign currencies, eliminating transaction costs in regular foreign trade and tourism operations.[134] It also sought to facilitate diversification in investment and savings decisions by economic agents in foreign trade and tourism operations. Lastly, it pursued diversification in investment and savings decisions of local and foreign economic agents in the Guatemalan economy.[135]

The latter Decree is a currency law that presents specific characteristics to make foreign currency transactions viable correctly and orderly within the Guatemalan economy. This law gives essential features to promote foreign investment, establishing, among other regulations, that foreign currencies and monetary species are exempt from taxes, rates, duties, and contributions.[136]

6.4. Significant Milestones: The Early 2000’s

In 2008, Guatemala enacted a new Secured Transactions Law, Decrees 51-2007 and 46-2008, “Ley de Garantías Mobiliarias.” These regulations allowed creditors to attach new security interests over collateral and established a modern national registry for publicizing security interests.[137]

According to this law, which incorporates the general provisions of the UCC, collateral such as accounts receivable, and inventories can be described in general terms. Additionally, parties can agree to enforce their interests outside of court if the security interest is perfected.[138]

Guatemala has taken a significant step towards foreign investment with Decree 47-2008 passing, also known as “Ley Para El Reconocimiento De Las Comunicaciones Y Firmas Electrónicas.” This decree grants full recognition to electronic signatures and communications, thus giving legal validity to national and international transactions conducted electronically in Guatemala.[139]

This law has yet to present any issues regarding its interpretation. Therefore, judicial decisions available are limited. Regardless, the Constitutional Court has clarified that even though the law recognizes the evidentiary force of electronic communications and its admission as evidence in Court, the recognition does not apply to documents that should be incorporated in their physical form. For such cases, the Parties should use the processes prescribed in the Apostille Convention, a treaty of which Guatemala is part.[140]

Moreover, in the decade starting in 2010, several other regulatory bodies that encourage foreign investment were approved. Among them, Decrees a) 16-2010, b) 19-2016, and c) 1-2018. Decree 16-2010, also known as “Ley de Alianzas para el desarrollo de infraestructura económica,” established a legal structure for partnership agreements to develop economic infrastructure. This includes building, maintaining, modernizing, and expanding infrastructure such as highways, roads, ports, airports, and similar projects. Through this law, foreign investors can participate in these projects and help boost Guatemala’s economy. [141]

6.5. Recent Regulations and Highlights

In 2018, Decree 1-2018, “Ley de los contratos de factoraje y de descuento,” was enacted regulating factoring and financing agreements of similar nature. This set of laws permits foreign entities to engage in such contracts. Moreover, it authorizes financing credit activities for foreign-originated credits.[142] Decree 2-2021, “Ley de leasing,” was passed to regulate leasing transactions. This law encourages foreign investors to conduct financial leasing operations in Guatemala.[143]

Throughout the past decade, several significant milestones have impacted international commerce. Guatemala’s adherence to the United Nations Convention on Contracts for the International Sale of Goods (CISG) was a considerable achievement. Additionally, implementing a new law to simplify administrative procedures and reduce bureaucratic obstacles has attempted to attract investment to the country.[144]

Over the past few years, the Guatemalan government has tried to encourage investment and job creation. In pursuit of this goal, they passed Decree 46-2022, “Ley de foment de inversion de capital extranjero,” aiming to attract and retain investments.[145] The law has as its primary objective foreign direct investment and attempts to increase investors’ trust in the country. It uses mechanisms such as granting preferential tax treatment (3–10 years) to foreign companies that decide to invest in Guatemala. This law has faced significant criticism and has been deemed “technically flawed” due to a) the constitutionality of the procedures it sets forth to implement tax benefits (deemed discretionary) and b) the absence of a consistent economic policy.[146]

6.6. International Framework

On a global level, investment regulations are governed by treaties and customary international law. Guatemala’s foray into investment provisions began with participating in the Multilateral Treaty for Free Trade and Central American Economic Integration.[147]

In 2005, Guatemala, the rest of Central America, the Dominican Republic, and the United States concluded negotiations on the Central American-Dominican Republic Free Trade Agreement (DR-CAFTA). This agreement entered into force in Guatemala on July 1, 2006. One of the most significant chapters arising from the DR-CAFTA is Chapter 10 on Foreign Direct Investment.

It, therefore, represents the most detailed and precise set of rules to form part of the Guatemalan legislation on foreign investment. In Guatemala, however, the CAFTA-DR investment rules did not undergo a revolutionary implementation process because many substantive rights were already determined in the FI Law.

Currently, 19 Bilateral Investment Treaties (“BITs”) or Agreements for the Promotion and Reciprocal Protection of Investments (APPRIs) are in force. One more has been signed but has yet to enter into force.[148] Regarding standards of protection, most of the BITs concluded by Guatemala contain the typical means of protection: fair and equitable treatment; national treatment; most favored nation treatment; total protection and security; protection against expropriation (see infra); free transfer of capital, among others.[149]

These treaties also have standardized umbrella clauses, which seek additional protection for foreign investors and add compliance mechanisms with more commitments from the investment recipient State.[150]

6.7. Expropriation

The Guatemalan Constitution contemplates expropriations in cases of collective use, social benefit, or public interest duly justified.[151] Any taking is subject to previous compensation at the actual value in entirely usable legal currency. It also sets within its standard of promptness a time limit of ten years for any compensation to be paid.

Article 39 of the PCR provides that the expropriation process will be subject to the rules elaborated by domestic law. The two most relevant laws governing expropriation, compensation, and their procedures in Guatemala are the Expropriation Law and the Foreign Investment Law.[152] The specific law is the Expropriation Law, which dates to 1948. This law is complemented by the expropriation provisions contained in the Foreign Investment Law.

Just because Guatemala is a developing country does not mean that its expropriation laws fall short of the internationally recognized standard for expropriation and compensation. To be more specific, the text of Article 40 of the PCR prescribes the following: “In concrete cases, private property may be expropriated for collective utility, the social benefit of public interest duly verified. The expropriation must follow the procedures established in the law, and the affected property shall be evaluated by experts based on the current value. The compensation shall be previous, in current adequate currency, unless the interested party agrees to another form of compensation.

Only in case of war, public calamity, or grave disturbances to the peace can property be intervened, occupied, or expropriated without previous compensation, but this shall be made immediately after the emergency ends. The law shall establish the rules to follow with the enema property. The form of payment of the compensations for the expropriation of idle lands shall be established by law. In no case shall the term to pay said compensation exceed ten years.”

The Expropriation Law also touches upon emergency expropriations, requiring that at least the book value be deposited in favor of the owner.[153] Article 40 does not require prior compensation in cases of emergency but requires compensation upon ending the state of emergency. That is why the payment of interest is required in Article 10 of the Expropriation Law and must be equivalent to the average interest rates published by the banks of the financial system on the prior day.

Finally, we reach the part concerning the amount that must be compensated in case of expropriation. Although the foreign investor obviously will be concerned by the taking itself, the right to take is difficult to challenge. Thus, traditionally most of the problems have centered on valuation procedures to determine just compensation. The disagreement involves whether the payment standard should be “just,” “appropriate,” “prompt, adequate, and effective,” or whether it should bear some other label.

The Guatemalan Constitution requires compensation at the property’s actual value. However, some international rules, like those in the CAFTA-DR refer to “fair market value.” Since the PCR leaves the expropriation and compensation procedures in the hands of domestic law, article 12 of the Expropriation Law establishes the following valuation method.

First, the state and the expropriated person can agree to determine the compensation value. Should the parties fail to reach such an agreement, then expert valuators can determine the actual value of the property, considering the value in books and the following:

• The actual value of the property;
• The reciprocal offers of both parties;
• The evidence offered by the parties.

The valuators shall be named following the procedure outlined in the Guatemalan Civil Procedure Code. The valuators must duly reason their opinions and are responsible for any negligence or lack of integrity which they may incur.[154]

A question remains whether the actual value is equivalent to fair market value. The PCR only refers to the actual value, so this is all that could be obtained under Guatemalan law. The procedures previously described are accurate in determining not only an actual value but also a fair market value. If a disparity between these two values results, one could claim this difference, but it is very unlikely that the disparity will be highly disproportionate.

If the actual market value is paid, a State should not be held liable ipso facto because compensation is not fair to the investor receiving it. In addition, guessing compensations granted by the due process by impartial expert valuators could go beyond the point of receiving fair compensation. These problems, however, are mitigated by the fact that no massive expropriations have occurred in Guatemala since World War II. Therefore, actual promptness or adequateness of compensation for expropriation cannot be evaluated. This also proves that the expropriation risk in Guatemala is low. Usually, the takings in Guatemala have been of property owned nearly exclusively by nationals rather than foreign investors.

7. Research Tools

7.1. Government Websites

Executive Branch

• Presidency of the Republic
• Ministry of Defense
• Ministry of Foreign Affairs
• Ministry of Economy
• Ministry of Agriculture, Livestock and Fishing
• Ministry of Labor and Social Prevention
• Ministry of Environment and Natural Resources
• Ministry of Infrastructure, Communications and Housing
• Ministry of Culture and Sports
• Ministry of Social Development
• Ministry of Education
• Ministry of Energy and Mines
• Ministry of Interior
• Ministry of Public Health and Social Assistance
• Ministry of Public Finance

Legislative Branch

• Congress of the Republic of Guatemala

Judiciary Branch

• Supreme Court of Justice
• Constitutional Court

Other State Organs

• Constitutional Court
• Public Prosecutor’s Office
• National Institute of Forensic Sciences (INACIF)
• Ombudsman
• Central Bank
• Superintendence of Banks
• Superintendence of the Tax Administration
• Superintendence of Telecommunications
• National Institute of Tourism of Guatemala
• Municipality of Guatemala
• General Office of ImmigrationOffice of Consumer Service and Assistance

Public Registries

• Real Estate Record Office and Second Real Estate Record Office
• General Registry of Commerce
• National Registry of Persons
• Intellectual Property Registry
• Securities Registry
• Secured Transactions Registry
• Registry for Legal Persona (REPEJU)
• Registry of Stock Market and Merchandise
• Directorate of Cadastre and Appraisal of Real Estate (DICABI)
• Registry of Inheritance Processes

7.2. Guatemalan Bar and Legal Associations

• Colegio de Abogados y Notarios de Guatemala – (Guatemalan Bar Association)
• Instituto de Estudios Comparados en Ciencias Penales de Guatemala
• Instituto de Investigaciones Jurídicas
• Instituto Guatemalteco de Derecho Notarial
• American Chamber of Commerce in Guatemala
• Instituto Guatemalteco de Derecho Mercantil
• Club Español de Arbitraje-Capítulo Guatemalteco

7.3. Law Schools

• Universidad de San Carlos de Guatemala
• Universidad Francisco Marroquín
• Universidad Rafael Landívar
• Universidad del Istmo
• Universidad Mariano Gálvez
• Universidad Mesoamericana
• Universidad Panamericana
• Universidad Rural
• Universidad San Pablo de Guatemala
• Centro Universitario de Oriente
• Universidad de Occidente
• Universidad Da Vinci

7.4. Books and Other Secondary Publications

Legal Databases

The main databases in Guatemala for access to legal documents and legislation are the ones indicated below. Unfortunately, not all of them are free. The website of the Congress of the Republic under the section Consulta Legislativa contains all the information concerning bills, laws, resolutions, and the program of work of the legislative body.

• Infile
• Lex Global
• Legislation Guatemala
• Congress
• GOALI (Research for Global Justice)
• Wolters Kluwer
• vLex
• IURISTEC
• Tirant Latam
• Centro Nacional de Análisis y Documentación Judicial (CENADOJ)

Participation Status of Guatemala in Treaties

The following links are quite useful and up to date, the first being a database of the Ministry of Foreign Affairs categorized by agreements, conventions, treaties, and protocols. The second provides the status of participation (signature, accession, acceptance, consent to be bound, or ratification) of all Member States of the United Nations concerning all multilateral instruments that have been deposited with the Secretary-General. In this case, treaties are categorized by chapters, and please note that if Guatemala does not appear in a status chart of a particular instrument, it is because it has not yet taken any action to that effect. The website of the Organization of American States is also a relevant link containing a database with Inter-American multilateral treaties and bilateral agreements.

• Ministry of Foreign Relations
• United Nations Treaty Section

Guatemala is party to the following major multilateral treaties:

• Charter of the United Nations ratified 21 Nov 1945
• Convention on the Privileges and Immunities of the United Nations acceded 7 Jul 1947
• Vienna Convention on Diplomatic Relations ratified 1 Oct 1963
• Vienna Convention on Consular Relations acceded 9 Feb 1973
• Convention on the Prevention and Punishment of the Crime of Genocide ratified 13 Jan 1950
• International Convention on the Elimination of All Forms of Racial Discrimination ratified 18 Jan 1983
• International Covenant on Civil and Political Rights acceded 5 May 1992
• International Covenant on Economic, Social and Cultural Rights acceded 19 May 1988
• International Convention on the Suppression and Punishment of the Crime of Apartheid acceded 15 Jan 2005
• Convention on the Elimination of All Forms of Discrimination against Women ratified 18 Aug 1982
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment acceded 5 Jan 1990
• Optional Protocol of the Convention against Torture acceded 9 June 2008
• Convention on the Rights of the Child ratified 6 Jun 1990
• Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict signed 7 Sept 2000
• Optional Protocol to the Convention on the Rights of the Child on the sale of child prostitution and child pornography signed 7 Sept 2000
• International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families ratified 14 Mar 2003
• Convention on the Rights of Persons with Disabilities ratified 7 Apr 2009
• Convention relating to the Status of Refugees acceded 22 Nov 1983
• Single Convention on Narcotic Drugs, 1961 ratified 1 Dec 1967
• United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ratified 28 Feb 1991
• Rome Statute of the International Criminal Court acceded 2 Apr 2012
• International Convention Against the Taking of Hostages ratified 11 Mar 198
• Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents ratified 18 Jan 1983
• Convention on the Safety of United Nations and Associated Personnel acceded 23 Sep 2008
• International Convention for the Suppression of Terrorist Bombings acceded 12 Feb 2002
• International Convention for the Suppression of the Financing of Terrorism ratified 12 Feb 2002
• United Nations Convention against Transnational Organized Crime ratified 25 Sep 2003
• United Nations Convention against Corruption ratified 3 Nov 2006
• United Nations Convention on the Law of the Sea ratified 11 Feb 1997
• Vienna Convention on the Law of Treaties ratified 21 Jul 1997
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards acceded 21 Mar 1984
• United Nations Framework Convention on Climate Change ratified 15 Dec 1995
• Convention for the Protection of All Persons from Enforced Disappearance, signed 6 Feb 2007
• Convention on Diplomatic Asylum signed 28 March 1954
• American Convention on Human Rights (Pact of San José, Costa Rica), signed 22 November 1969
• Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) signed 17 November 1988
• Inter- American Convention on International Commercial Arbitration, signed 30 January 1975
• Inter-American Convention on Conflict of Laws concerning Bills of Exchange, Promissory Notes and Invoices signed 30 January 1975
• Inter-American Convention Extradition, signed 25 February 1981
• Inter-American Convention on Mutual Assistance in Criminal Matters signed 19 December 2002

Case Law

The Judicial Branch through the National Center of Analysis and Judicial Documentation (CENADOJ) has produced a complete collection of books and CD-ROMS pertaining to case-law (1972-2004), as well as Guatemalan laws. In addition, on-line services (paid) are also available by CENADOJ with access to the Supreme Court and a tracking system of current cases submitted before the courts. See the Judicial Branch website above.

The Constitutional Court has also compiled its case-law, which is available in hardcopy and CD-ROM. The rulings of general constitutional actions declaring the unconstitutionality of laws and the advisory opinions of the Court are both published in the Official Gazette. Opus Magna Constitucional Guatemalteco is a periodical containing comprehensive articles and commentaries on constitutional justice in Guatemala. So far four volumes have been issued.

The compilation Prontuario Tributario de Leyes de Guatemala is a CD-ROM containing the main Guatemalan tax laws.

Other Websites Containing Guatemalan Laws

Although somewhat dispersed throughout different links, the following websites can be used as a reference for free access to Guatemalan legislation.

• Tax
• Trade
• Sustainable Development
• Banking
• Doing Business in Guatemala (World Bank)

Libraries

• National Library
• Biblioteca Ludwig von Mises Universidad Francisco Marroquín
• Biblioteca Landivariana

Periodicals

• Diario Oficial de Centro América – (Official Gazette): as indicated above in section 4.1, the final step to the enactment process of laws is their publication in the Official Gazette called “El Diario Oficial de Centro América.” The website can be visited to obtain daily information on publications. However, to have access to past publications a service fee must be paid.
• Revista de la Facultad de Derecho, Universidad Francisco Marroquín (Guatemala) – Compilation of Guatemalan Legislation by Raúl Figueroa Sartí, rimestre publications since 2001, Editors F&G Editores / Editorial Cholsamaj, 2001
• Auctoritas Prudentium, Revista Jurídica de la Universidad del ISTMO UNIS (Guatemala)
• Vox IURIS
• Ratiolegis is a journal with several articles on Guatemalan legal matters and current legal affairs.
• Contrapoder

Books

A legal compilation book used by law students and professionals is the “Biblia Jurídica” which includes principal laws such as the Civil Code, Commercial Code, Civil and Commercial Procedure Code, Criminal Code, Notarial Code, Criminal Procedure Code, Labor Code, and Military Code, among others.

The following books are general references to specific subject matters of law published by renowned jurists in Guatemala:

• Maldonado Aguirre, Alejandro, Nuestra Constitución, Editorial Piedra Santa, 2001.
• Maldonado Aguirre, Alejandro, Reflexiones Constitucionales, Imprenta Corte de Constitucionalidad, 2003.
• Castillo González, Jorge Mario, Constitución política, comentarios, Guatemala, 1994.
• Prado, Gerardo, Derecho Constitucional Guatemalteco, Editorial Estudiantil Fénix, 2003.
• Rohrmoser Valdeavellano, Rodolfo, Corte de Constitucionalidad. La Jurisdicción Constitucional en Guatemala, in Juan Vega Gómez and Edgar Corzo Sosa, (coords.), Tribunales y Justicia Constitucional. Memorias del VII Congreso Iberoamericano de Derecho Constitucional, Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas, Serie Doctrina Jurídica, 108, México, 2002.
• Villagrán Kramer, Francisco, El Largo brazo de la justicia penal internacional: estudios de derecho penal internacional para jueces y abogados, Imprenta Off-Set copi Fiel Guatemala, 2001.
• Villagrán Kramer, Francisco, Derecho de los Tratados, Imprenta Corte Suprema de Justicia et al, 2002.
• Orellana Zabalza, Gabriel, El Derecho de los Tratados en Guatemala, Imprenta Universidad Francisco Marroquín, 2003.
• Calderón Castillo, Hugo, Derecho Administrativo.
• Rivera Wolke, Víctor Manuel, Posición del Juez en Guatemala, in La Justicia como Garante de los Derechos Humanos: La Posición del Juez, ILANUD/Unión Europea, 1996.
• Aguirre Godoy, Mario, Derecho Procesal Civil Guatemalteco, Editorial Edita, 1982.
• Aguirre Godoy, Mario, Repertorio de Jurisprudencia, Imprenta Universitaria, 1969.
• Fernández Molina, Luis, Derecho Laboral Guatemalteco, Editorial Oscar De León Palacios, 1996, 2002.
• Muñoz, Nery Roberto, La forma notarial en el negocio jurídico: escrituras públicas, Editorial Infoconsult Editores, 2001.
• Figueroa Sarti, Raúl, Código penal, concordado y anotado con la exposición de motivos y la jurisprudencia constitucional y de la corte suprema, Editorial F&G Editores, 2004.
• Figueroa Sarti, Raúl, Código procesal penal, concordado y anotado con la jurisprudencia constitucional incluye exposición de motivos; incluye Exposición de Motivos por César Barrientos Pellicer, Editorial F&G Editores, 2003.
• Aguilar Guerra, Vladimir Osman, El Negocio Jurídico, 2a Edición, Guatemala: Litografía Orión, 2007.
• Beltranena Valladares, María Luisa, Lecciones de Derecho Civil: Personas y Familia, 5a edición. Editorial IUS, 2008.
• Gramajo Castro, Juan Pablo, Código Civil Comentado y Anotado – Con las Exposiciones de Motivos del Código original y de sus reformas, Jurisprudencia de casación, referencias doctrinales y concordancias con otras leyes, (Dos Tomos) 2da Edición, Ediciones IUS, 2012. Rivera Carrillo, Carlos Humberto (Editor), Estudio jurídico, doctrinal y jurisprudencial de la Ley de Propiedad Industrial de Guatemala, Instituto de Derecho Mercantil / Editorial Episteme, September 2014.
• Juan Pablo Hernández Páez, La Compraventa Internacional de Mercaderías: Manual de la Convención de Viena de 1980 (CISG) para Abogados Guatemaltecos (Third Moon Publishing, Guatemala, 2022).
• Juan Pablo Hernández Páez, La Corte Internacional de Justicia: Jurisprudencia y Práctica (Estudios de Derecho Internacional, vol. 1) (Third Moon Publishing, Guatemala, 2022).
• Carlos Arturo Villagrán Sandoval, Derecho guatemalteco en contexto (Universidad Rafael Landívar, Editorial Cara Parens, 2023).

Newspapers

• Prensa Libre
• Plaza Pública
• Soy 502
• Diario La Hora

7.5. Participation in International Organizations

International and Regional Organizations

BCIE, CACM, FAO, IADB, IAEA, IBRD, ICAO, ICFTU, ICRM, IDA, IFAD, IFC, IFRCS, IHO, ILO, IMF, IMO, Interpol, IOC, IOM, ISO (correspondent), ITU, LAES, LAIA (observer), NAM, OAS, OPANAL, OPCW, PCA, RG, SIECA, SICA, UN, UNCTAD, UNESCO, UNIDO, UPU, WCL, WCO, WFTU, WHO, WIPO, WMO, WTO, UN-WTO.

Regional Groups

Group of Twenty-Four on International Monetary Affairs and Development (G-24), Group of Seventy-Seven and China (G-77), Non-Aligned Movement (NAM), Community of Latin American and Caribbean States (CELAC).

• Secretariat for Central American Economic Integration
• Central American System of Integration
• Central American Court of Justice
• Central American ParliamentDR-CAFTA
• Guatemala in the United Nations Security Council 2012-2013

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[1] Instituto Nacional de Estadística, “Proyecciones Nacionales 1950-2050”, consulted on April 24, 2023, available at: https://www.ine.gob.gt/proyecciones/.

[2] Instituto Nacional de Estadística, “Proyecciones municipales. Actualización 2020”, consulted on April 24, 2023, available at: https://www.ine.gob.gt/proyecciones/.

[3] Instituto Nacional de Estadística, “Infografías de Población”, consulted on April 24, 2023.

[4] Luján, Jorge, “Breve historia contemporánea de Guatemala”, Fondo de Cultura Económica, Guatemala, 2018, p. 5.

[5] Matthew, Laura, “Memories of Conquest: Becoming Mexicano in Colonial Guatemala”, United States, 2012.

[6] SÁENZ, Ricardo, “Cuando la ciudad tiene imagen”, Universidad de Alcalá, Spain, p. 3.

[7] MARTÍNEZ, Severo, “La patria del criollo”, Mexico, p. 25.

[8] Ibid., p. 63.

[9] Ibid., p. 73.

[10] Ibid., p. 288.

[11] Luján, Jorge, “Breve historia contemporánea de Guatemala”, Fondo de Cultura Económica, Guatemala, 2018.

[12] Luján, Jorge, “Breve historia contemporánea de Guatemala”, Fondo de Cultura Económica, Guatemala, 2018.

[13] Luján, Jorge, “Breve historia contemporánea de Guatemala”, Fondo de Cultura Económica, Guatemala, 2018.

[14] Luján, Jorge, “Breve historia contemporánea de Guatemala”, Fondo de Cultura Económica, Guatemala, 2018.

[15] Kubota, Yuichi, “Explaining State Violence in the Guatemalan Civil War: Rebel Threat and Counterinsurgency”, University of Miami, United States, 2017, p.48.

[16] “Condenado por genocidio. Sentencia condenatoria en contra de Efraín Ríos Montt (fragmentos)”, f&g Editores, Guatemala, 2013, p. 119.

[17] Constitutional Court, “Expediente 1904-2013,” dated May 20, 2013.

[18] InterAmerican Court of Human Rights, “Caso Masacre Plan de Sánchez Vs. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_105_esp.pdf.

[19] InterAmerican Court of Human Rights, “Caso Molina Theissen v. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_106_esp.pdf.

[20] InterAmerican Court of Human Rights, “Caso Masacre de las Dos Erres v. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_211_esp.pdf.

[21] InterAmerican Court of Human Rights, “Caso Masacres de Río Negro v. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_250_esp.pdf.

[22] InterAmerican Court of Human Rights, “Caso Gudiel Álvarez (Diario Militar) v. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_253_esp1.pdf.

[23] InterAmerican Court of Human Rights, “Caso Miembros de la Aldea Chichupac y comunidades vecinas del municipio de Rabinal v. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_328_esp.pdf.

[24] InterAmerican Court of Human Rights, “Caso Coc Max y otros (Masacre de Xamán) v. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_356_esp.pdf.

[25] InterAmerican Court of Human Rights, “Caso Masacre de la Aldea de Los Josefines v. Guatemala”, consulted on May 25, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_442_esp.pdf.

[26] GARCÍA, Jorge, “Breve historia constitucional de Guatemala”, Editorial Universitaria, Guatemala, 2015, p. 99.

[27] Ibid., p. 105.

[28] Infra 2.1.

[29] Infra 3.5.3.

[30] GARCÍA, Jorge, op. cit., p. 99.

[31] Jonas, Susanne, “Can Peace Bring Democracy or Social Justice? The Case of Guatemala”, Social Justice, Global Option, United States, 1998, p. 40.

[32] The decision is identified as “Expediente 225-93” originally dated May 25, 1993, but it has two addendums dated May 31, 1993, and June 4, 1993.

[33] Constitutional Court, “Case File No. 225-93”, dated May 25, 1993.

[34] Id.

[35] Constitutional Court, “Case File No. 225-93”, dated June 4, 1993.

[36] Prensa Libre, “1993: Ramiro de León Carpio es el nuevo presidente del país”, consulted on April 30, 2023.

[37] Prensa Libre, “Historia en Guatemala Serranazo: autogolpe fallido en 1993”, consulted on April 30, 2023.

[38] Jonas, Susanne, “Guatemala. El problema democrático.”, Nueva Sociedad, US, 1994, p. 22.

[39] Infra 2.3.

[40] Prensa Libre, “1994: ciudadanos deciden reformar la Constitución Política,” consulted on May 24, 2023.

[41] Jonas, Susanne, “Democratization Through Peace: the difficult case of Guatemala”, Cambridge University Press, p. 11.

[42] Torres-Rivas, Edelberto, “Guatemala: desarrollo, democracia y los acuerdos de paz”, Revista Centroamericana de Ciencias Sociales, p. 32.

[43] BBC MUNDO, “Renuncia el presidente de Guatemala, Otto Pérez Molina”, consulted on May 24, 2023, available at: https://www.bbc.com/mundo/noticias/2015/09/150903_renuncia_perez_molina_guatemala_corrupcion_aw.

[44] The Guardian, “Guatemala: former president sentenced to 16 years for corruption”, consulted on April 30, 2023, available at: https://www.theguardian.com/world/2022/dec/08/guatemala-president-otto-perez-molina-corruption-sentence.

[45] The Guardian, “Guatemala’s president spends night in jail after resignation”, consulted on April 30, 2023, available at: https://www.theguardian.com/world/2015/sep/03/guatemala-celebrates-resignation-president-facing-criminal-charges.

[46] CICIG, “Informe de Cierre, el legado de justicia en Guatemala”, Guatemala, p. 249

[47] CONGRESO DE LA REPÚBLICA, “Detalle de Iniciativa 5179”, consulted on May 25, 2023, available at: https://www.congreso.gob.gt/detalle_pdf/iniciativas/1312.

[48] PRENSA LIBRE, “Juan Francisco Sandoval, exjefe de la Feci, abandona Guatemala por temor a represalias”, consulted on April 30, 2023, available at: https://www.prensalibre.com/guatemala/politica/juan-francisco-sandoval-exjefe-de-la-feci-abandona-guatemala-por-temor-a-represalias/.

[49] Constitutional Court, “Expediente 2053-2019”, dated August 14, 2019.

[50] Constitutional Court, “Expediente 1199-2009” dated July 17, 2009.

[51] Constitutional Court, “Expedientes acumulados 467-2008 y 612-2008”, dated July 9, 2009.

[52] Constitutional Court, “Expediente 1099-2003”, dated March 17, 2005.

[53] Constitutional Court, “Expediente 1822-2011” dated July 17, 2012.

[54] Constitutional Court, “Expediente 1244-99”, dated October 17, 2000.

[55] Constitutional Court, “Expediente 2112-2016”, dates October 17, 2017.

[56] InterAmerican Court of Human Rights, “Opinión Consultiva OC-8/87”, dated January 30, 1987.

[57] Procedimiento Especial de Averiguación.

[58] Constitutional Court, “Expediente 5073-2016”, dated January 30, 2017.

[59] GARCÍA, Jorge, ob. cit., p. 104.

[60] TSCHENTSCHER, Axel, “The Latin American Model of Constitutional Jurisdiction: Amparo and Judicial Review”, Switzerland, 2013, p. 5.

[61] Ibid., p. 157.

[62] GUTIÉRREZ, Carmen, “La importancia del sistema de justicia ordinaria y constitucional en Guatemala”, Konrad-Adenauer-Stiftung E.V., Guatemala, p. 9.

[63] Belaunde, Domingo, “Los tribunales constitucionales en América Latina”, Germany, 2005, p. 7.

[64] ORDOÑEZ, Aylín, “La jurisdicción constitucional en Guatemala. Defensa del orden constitucional y derechos humanos”, Konrad-Adenauer-Stiftung E.V., Germany, p. 91.

[65] Constitutional Court, “VIII Magistratura”, consulted on May 7, 2023, available at: https://cc.gob.gt/magistrados/.

[66] Constitutional Court, “Expediente 1089-2003”, dated July 14, 2003.

[67] Constitutional Court, “Expediente 171-2002”, dated March 25, 2002.

[68] Infra 3.1.1.

[69] Gramajo, Juan, “¿Es Celestial la Corte?”, consulted on May 26, 2023.

[70] Castillo-Ortiz, Pablo, “The Illiberal Abuse of Constitutional Courts in Europe”, European Constitutional Law Review, United Kingdom, p. 53

[71] Ibid., p. 56

[72] Infra 3.2.2.

[73] US Senate, “Impeachment”, consulted on May 26, 2023.

[74] Infra 4.2.

[75] Carrascosa, María, “Abortion: Between Religiosity and the State”, consulted on May 26, 2023.

[76] Jody Garcia & Natalie Kitroeff, “In Reversal, Guatemala Shelves Anti-Abortion Law”, NYT (May 26, 2023).

[77] Constitutional Court, “Expediente 1202-2006, 1288-2006 y 1451-2007”, dated January 8, 2008.

[78] InterAmerican Court of Human Rights, “Caso I.V. vs. Bolivia”, consulted on May 25, 2023, available at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_329_esp.pdf.

[79] InterAmerican Court of Human Rights, “Caso Artavia Murillo y otros (fecundación in vitro) vs. Costa Rica”, consulted on May 25, 2023.

[80] InterAmerican Court of Human Rights, “Caso Manuela y otros vs. El Salvador”, consulted on May 25, 2023.

[81] Jody Garcia & Natalie Kitroeff, “In Reversal, Guatemala Shelves Anti-Abortion Law”, NYT (May 26, 2023).

[82] Art. 2 LOE.

[83] Constitutional Court, “Expediente 212-89”, dated November 16, 1989.

[84] Constitutional Court, “Expediente 280-90”, dated October 19, 1990.

[85] Infra o supra al apartado de historia.

[86] Constitutional Court, “Expediente 280-90”, dated October 19, 1990.

[87] Constitutional Court, “Expediente 2906-2011”, dated August 8, 2011.

[88] Supreme Court of Justice, “Expediente 1372 y 1373-2015 (Amparo)”, dated August 21, 2015.

[89] InterAmerican Commission on Human Rights, “Informe No. 61/22 Petición 1287-19. Informe de Solución Amistosa”, April 24, 2022.

[90] Constitutional Court, “Expediente 212-89”, dated November 16, 1989.

[91] EL ECONOMISTA MÉXICO, “Guatemala tendrá una mujer vicepresidenta”, consulted on June 8, 2023.

[92] Prensa Libre, “1995: No a candidatura de esposa de Ríos Montt”, consulted on June 8, 2023.

[93] Mijangos, Luis, “Prácticas Parlamentarias”, Guatemala, 2016, p. 73.

[94] Constitutional Court, “Expediente 3016-2013”, dated July 14, 2015.

[95] Infra o supra a donde lo expliqué.

[96] CONGRESO DE LA REPÚBLICA, “Jefes de Bloque”, consulted on June 8, 2023.

[97] BBC NEWS, “Anulan en Guatemala el presupuesto que motivó las movilizaciones que acabaron con el Congreso en llamas”, consulted on June 8, 2023.

[98] The Supreme Electoral Tribunal is the highest authority in electoral matters and works as an independent organism. It is composed of five magistrates elected by Congress by qualified majority. They are elected out of a list of 40 candidates proposed by the corresponding Nominating Committee.

[99] The monetary board has under its charge the determination of monetary, exchange rate and credit policy.

[100] World Justice Project, “Guatemala”, consulted on June 8, 2023.

[101] Political Database of the Americas, “Estudio Constitucional Comparativo: Designación de los magistrados de la Corte Suprema”, consulted on June 9, 2023.

[102] Constitutional Court, “Expediente 1169-2020”, dated May 6, 2020.

[103] Constitutional Court, “Expediente 5477-2019”, dated October 8, 2019.

[104] Constitutional Court, “Expediente 199-95”, dated May 18, 1995.

[105] Supreme Court of Justice, “Casación 01004-2012-01524”, dated November 6, 2012.

[106] Constitutional Court, “Expediente 943-2017”, dated June 21, 2017.

[107] Ochoa, Carlos, “Trayectoria histórica de las alcaldías indígenas”, Konrad Adenauer Stiftung, Guatemala, 2013, p. 1.

[108] PÉREZ, Antonio “Del habeas corpus al habeas data”, Spain, p. 155.

[109] GUADAMÚZ, Andrés, “Habeas Data vs the European Data Protection Directive”, United Kingdom, 2001, p. 4.

[110] Constitutional Court, “Expediente 863-2011”, dated June 21, 2011.

[111] Supra 1.

[112] Prensa Libre, “Procurador de los Derechos Humanos Alejandro Córdova confirma denuncia contra su antecesor Jordán Rodas Andrade”, consulted on May 13, 2023.

[113] Hernandez, Arturo, “La costumbre como fuente del Derecho”, Colombia, 2010, p. 147.

[114] Constitutional Court, “Expediente 280-90”, dated October 19, 1990.

[115] Constitutional Court, “Expediente 1822-2011”, dated July 17, 2012.

[116] ICJ, “States entitled to appear before the Court”, consulted on May 17, 2023.

[117] ICJ, “Special Agreement”, consulted on May 17, 2023.

[118] ICJ, “North Sea Continental Shelf (Federal Republic of Germany/Netherlands)”, 1969, para. 65.

[119] Constitutional Court, “Expediente 3438-2016”, dated November 2, 2016.

[120] Decree 22-73 of Congress of the Republic of Guatemala dated April 5, 1973.

[121] MUNDO MARÍTIMO “Santo Tomás de Castilla: Asian investors could finance expansion of Empornac in Guatemala.” Consulted in May 22, 2023, Available at: Santo Tomás de Castilla: Inversionistas asiáticos podrían financiar ampliación de Empornac en Guatemala – MundoMaritimo.

[122] Decree 65-89 of the Congress of the Republic of Guatemala dated November 22, 1989.

[123] Decree 65-89 of the Congress of the Republic of Guatemala dated November 22, 1989.

[124] Decree 29-89 of the Congress of the Republic of Guatemala dated June 13, 1989.

[125] Constitutional Court, Case File No. 7220-2019, dated September 8, 2020.

[126] Decree 29-89 of the Congress of the Republic of Guatemala dated June 13, 1989.

[127] Constitutional Court, Case File No. 1920-2016, dated January 30, 2018.

[128] Constitutional Court, Case File No. 1920-2016, dated January 30, 2018.

[129] Decree number 67-95 of Congress. Published on November 17, 1995, in the Official Gazette.

[130] Constitutional Court, Case File No. 1316-2012, dated November 6, 2012.

[131] Decree 9-98 of the Congress Published on March 3, 1998, in the Official Gazette.

[132] See infra.

[133] Decree 34-96 of the Congress of Guatemala.

[134] Decree 94-2000 of the Congress of the Republic of Guatemala.

[135] Decree 94-2000 of the Congress of the Republic of Guatemala.

[136] Decree 17-2002 of the Congress of the Republic of Guatemala.

[137] See Securities Registry of the Republic of Guatemala available at Inicio – Registro de Garantías Mobiliarias (rgm.gob.gt).

[138] Garro, Alejandro “The Inter-American Model Law On Security Interests First Challenges In Its Implementation” available at EL COMITÉ INTERNACIONAL DE LA CRUZ ROJA (CICR) Y SU CONTRIBUCIÓN AL DESARROLLO CONVENCIONAL DEL DERECHO INTERNACIONAL HUMANITARIO EN LOS COMIENZOS DEL SIGLO XXI (oas.org).

[139] Decree 47-2008 of the of the Congress of the Republic of Guatemala.

[140] Constitutional Court, Case File No. 1797-2017, dated October 12, 2017.

[141] Decree 16-2010 of the Congress of the Republic of Guatemala.

[142] Decree 1-2018 of the Congress of the Republic of Guatemala.

[143] Decree 1-2018 of the Congress of the Republic of Guatemala.

[144] Decree 5-2021 of the Congress of the Republic of Guatemala.

[145] “What is the law for the promotion of foreign capital investment?” TN23 (2022, September 07).

[146] Bolaños, Rosa María. (2022, September 10). “The new Law for the Promotion of Foreign Capital Investment seeks legal certainty, but it is unclear how this will be achieved.” Prensa Libre, La nueva Ley de Fomento de Inversión de Capital Extranjero busca certeza jurídica, pero no queda claro cómo (prensalibre.com).

[147] Multilateral Treaty of Free Trade and Central American Economic Integration. Signed on June 10, 1958. Chapter VI. Investments. Article XVII: “Each of the Party members, acting within the realm of their respective constitutional provisions, shall grant National Treatment to the capital investments of the investors of other states and the right to establish and manage either mercantile or financial productive enterprises, and participate in them. In addition, each state shall grant fair and non-discriminatory treatment to the transfer of profits from investments belonging to the nationals of the other members.”

[148] Guatemala | International Investment Agreements Navigator | UNCTAD Investment Policy Hub.

[149] Gramajo, Florencio, “Legal framework for foreign direct investment in Guatemala” Universidad Francisco Marroquín, Marco Legal para la inversión extranjera directa en Guatemala – Facultad de Derecho (ufm.edu).

[150] Gramajo, Florencio, “Legal framework for foreign direct investment in Guatemala” Universidad Francisco Marroquín, Marco Legal para la inversión extranjera directa en Guatemala – Facultad de Derecho (ufm.edu)

[151] According to article 1 of the Expropriation Law social benefit or public interest is understood as anything that would tend to satisfy a collective need, whether material or spiritual.

[152] Decree number 529 of the Congress of the Republic of Guatemala. Published on September 09, 1948, in the Official Gazette.

[153] Article 32 of the Expropriation Law.

[154] Guatemala is a member of the Multilateral Investment Guarantee Agency (MIGA) of the World Bank.