Symposium: The Court as a Stronghold for Democracy: The Serrano Elias Case

Sara Larios Hernández

Constitutional Court of Guatemala

The Constitution of Guatemala of 1965 was the first in the history of the country and of Latin America to formally introduce a constitutional tribunal as part of its design. However, this was a non-permanent tribunal that would only convene whenever a case within its jurisdiction arose. Moreover, it was not an independent court as it was comprised of members of the Supreme and Appellate Courts. Undoubtedly, this compromised its independence and efficiency. In 1985, with the passing of our current Constitution, the Constitutional Court was created as a permanent collegiate body, integrated by five lead and five alternate Magistrates. As a new institution, the Court had to find its path in order to establish its legitimacy and approval among the general public. The Serrano Elias case was monumental, among many other reasons, because it cemented the Constitutional Court’s role as a bastion for the protection of democracy in Guatemala.

Democracy and the Rule of Law under attack

As is true of many other Latin American countries, Guatemala has a long history of authoritarian regimes from the mid to late nineteenth century. The shift towards a democratic system was not an easy path, but with the passing of the 1985 Constitution, a new era was expected where fraudulent governments could be left behind. Jorge Serrano Elias was elected as President of Guatemala in 1991, becoming the second President to have been elected under the current Constitution. At the time of his election, President Serrano lacked a strong force of representation in the legislative branch and in the municipal governments, with many opposing the official party. From the beginning of President Serrano’s term, his policies were not welcomed by the general public and the cost of living rose considerably during his early years as President. This slowly built into evident public discontentment and the forces that opposed him, coming from different sectors, led to an institutional crisis.

Facing the difficulties of lost political alliances and the growing displeasure of Guatemalans, President Serrano attempted a self-coup in 1993, by purporting to pass a decree entitled “Temporary Rules of Government”. This decree sought to suspend certain constitutional provisions of the utmost importance: it temporarily ceased the protection of individual rights and ordered the dissolution of Congress, allowing the President to assume legislative powers. Moreover, the decree ordered the removal of the Magistrates of the Supreme Court and the Constitutional Court, allowed the President to unilaterally name new members of these Courts, and stipulated the removal of the Attorney General and Ombudsman of Guatemala. Evidently, these measures were a rupture of the country’s constitutional order and a threat to its young democracy, as the leader of the country pursued absolute authority and powers. President Serrano’s attempt at forcibly claiming absolute powers, although unsuccessful, has been compared to President Alberto Fujimori’s self-coup in Peru.

The Constitutional Court in charge: a historic decision

In the face of this clear menace, the Constitutional Court, headed at the time by Magistrate Epaminondas Gonzalez, played a pivotal role in re-establishing the constitutional order. The Magistrates of the Court took the risky decision of acting ex officio, and reviewed the decree on the same day that it was passed, declaring its provisions unconstitutional. The ruling is short but its importance in establishing the Court as the ultimate guardian of the constitutional order cannot be overstated. Among other considerations, the Court determined that dissolving Congress would be contrary to the Constitution and that members of the judicial branch can only be removed from their position during their tenure, for specific situations established by law. Moreover, the ruling emphasized that the President does not have the power to remove serving judges unilaterally.

Although the Court’s review of the decree was ex officio – no action having been brought at the time of the ruling – it was in accordance with the Court’s main mandate and reason of being, which is “the defense of the constitutional order” (Article 268 of the Constitution). The Court’s decision to act ex officio reflects its understanding of the gravity of the situation and its duty to act in an unequivocal and compelling manner to protect Guatemala’s nascent democracy. Since that time, there has not been another issue that has forced the Court to act in a similar way.

Following the decision, its enforcement was the most pressing issue. The High Tribunal was forced to pass a ruling of due execution, mandating the Minister of Interior and the Minister of Defense to assist in the publishing of the decision in the official newspaper and for the President to comply with the order to cease the constitutional violations. The strong social opposition to the attempted self-coup and the backing of Guatemala’s Army and economic sector allowed the ruling to be carried out. On 31 May 1993, the Minister of Defense addressed the nation to announce that in accordance to the Constitutional Court’s decision, former President Serrano Elias had stepped down. Several days later, in compliance with the constitutional provision for such a scenario, Congress designated Ramiro de León Carpio as the new President of Guatemala.

A Court that has shaped fundamental rights in Guatemala

The most evident point of importance of the Serrano Elías case lies in the re-establishment of the constitutional order of the country. That aspect of the decision has earned it recognition, at a domestic and regional level, as the single most important decision of Guatemala’s Constitutional Court. However, it is also fair to say that this decision helped cement the Court’s place as a strong and independent body, that is willing and able to uphold the Rule of Law. It must be noted that the Court had only been in place for seven years prior to this landmark decision that shaped the history of the country, so it would be possible to assume that it had not yet found its bearings as a Court of the highest level. Many skeptics of the idea of a separate and permanent Court on constitutional matters were critical of the establishment of the tribunal itself. The ruling in the Serrano Elias case was instrumental in erasing all doubts as to the convenience of the Constitutional Court of Guatemala.

Since then, the tribunal has developed its jurisprudence to shape the protection of fundamental rights in the country. Although not without its pitfalls and attacks, throughout the years the Court has passed many other crucial judgments that have allowed, overall, for a positive progression in constitutional rights and liberties. This would not have been possible if the Court had not earned its place as a trustworthy, serious and independent institution.

This Court’s current position can be illustrated with reference to its jurisprudence concerning international human rights law. Although the Court has long cited human rights treaties as sources of law, these used to be considered as inferior to the Constitution. Over the years, this vision slowly shifted and, in 2012, the Constitutional Court declared, in another landmark ruling, that international human rights treaties must be considered an integral part of the material Constitution, by way of recognition of the Constitutionality block doctrine that was developed by the Inter-American Court of Human Rights. This recognition is a clear manifestation of the adoption of a very active and progressive role by the Constitutional Court of Guatemala, which naturally comes with many critics. The tribunal would not be able to sustain its decisions on polarizing topics without a solid foundation. The Serrano Elias case was undoubtedly a vital stepping stone in obtaining its place as an independent body, at the service of the Guatemalan Constitution.

Sara Larios Hernández holds an LLM from Georgetown University Law Center and is legal advisor at the Constitutional Court of Guatemala.

Suggested citation: Sara Larios Hernández, ‘The Court as a Stronghold for Democracy: The Serrano Elias Case’ IACL-AIDC Blog (23 July 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-central-and-south-america/2020/7/23/the-court-as-a-stronghold-for-democracy-the-serrano-elias-case