A Constitutional Telenovela: The Deepening Constitutional Crisis in Guatemala

Carlos Arturo Villagrán Sandoval

Universidad Rafael Landivar of Guatemala.

In August 2017, I wrote about a potential constitutional crisis in Guatemala. A few years down the track, the situation has now reached a critical point. On 28 June 2020, the Guatemalan Congress filed a criminal suit against certain members of the Constitutional Court on the ground that the Court’s latest judgments are contrary to the Constitution. This litigation is just the most recent move against judicial independence in a series of events spanning several years. As I predicted in 2017, it appears that the telenovela continues with more twists and turns.

I have previously noted that the defence of the Constitution by both the Guatemalan Constitutional Court (GCC) and the International Commission Against Impunity has led to severe backlash. Conservative local groups, strong economic actors and other state entities, like Congress and the previous administration, have severely criticised the GCC.

The GCC has a constitutional duty to uphold and defend the constitutional order (article 268). The Constitution also provides that no state action is exempt from judicial review (article 265). Therefore, the GCC is obliged to pronounce on every constitutional issue brought before it. However, doing this has not been easy.

The GCC had to fend off a coup d’etat in 1993. The administration at that time attempted to suspend individual rights and dissolve Congress, the Supreme Court and the GCC. They also tried to remove the Attorney General and the Human Rights Ombudsman (a judgment dealing with the attempted coup is available in Spanish).

Additionally, in 2012 the GCC adopted the Constitutional Block – a doctrine according to which courts construe international human rights treaties as being part of the Constitution. Since then, socio-economic rights litigation has been on the rise (for more, see the Guatemalan report in the 2018 Global Review of Constitutional Law), something that has not endeared the court to the executive.

The GCC has issued judgments on several contentious issues, including matters related to the protection of minorities and the rights of indigenous groups. Its decisions have halted mining projects, reversed vitiated procedures for the selection of judges and magistrates to the Supreme Court and prevented – momentarily – certain actions by the previous administration. The executive branch was temporarily kept from signing a third safe country agreement with the United States of America (US) and from unilaterally terminating the constitutive treaty of the International Commission Against Impunity in Guatemala.

Because of these decisions, members of the GCC have been the target of backlash. In fact, in 2019, the Inter American Commission on Human Rights (IACHR) issued protection orders for several members of the GCC. The IACHR granted these interdicts because of threats to the lives of, and undue pressure applied to, these judges. Since then, however, one of the loudest critics of the GCC has been appointed as a member of the IACHR. In a different capacity, this same person has recently launched several attacks against the GCC.

Internationally, the intimidation of the judiciary is an essential play in the playbook of authoritarians. This intimidation often takes the form of impeachment proceedings against judges and magistrates. In Guatemala too, Congress sought to impeach justices – something it did in 2018 and again in early 2019.

The Guatemala Constitution does allow for the impeachment of judges and magistrates, but only if their actions transgress the law. Once again, in 2020, Congress has instituted impeachment proceedings that exceed the scope of the relevant constitutional provision. That is because Congress’ reason for impeachment is not the conduct of the justices but the judgments issued by the GCC. This even though the law regulating the jurisdiction and activity of the GCC – Ley de Amparo Exhibicion Personal y Constitucionalidad – prohibits the prosecution of judges for their legal opinions (article 167).

The GCC has ample jurisprudence relating to the constitutionality of the impeachment of its members, and these decisions reaffirm that the state may not prosecute judges for their opinions. But, conservative groups have questioned the GCC’s authority to review matters of this nature, saying it violates the nemo iudex in causa sua principle (literally, ‘no-one is judge in his own cause’). These arguments ignore a key exception to this principle recognised by the United Nations (UN) (in the Bangalore principles of judicial conduct), the Venice Commission, the European Court of Human Rights, other national jurisdictions and even the Supreme Court of Guatemala. The exception, the ‘doctrine of necessity’, provides that judges can hear cases that the nemo iudex principle would otherwise exclude from their jurisdiction, provided “no other judge available who is not similarly disqualified, or if an adjournment or mistrial will cause severe hardship, or if a court cannot be constituted to hear and determine the matter at hand owing to the judge’s absence”.

Having failed repeatedly to impeach members of the GCC, the Guatemalan Congress has now resorted to even more drastic measures. Alongside the latest impeachment proceedings, it has, as noted above, instituted criminal proceedings against GCC judges, alleging the Court’s impeachment jurisprudence violates the nemo iudex principle, and therefore the Constitution. This move reveals the power-grabbing intention underlying Congress’ action – yet it has received very little attention because of the unusual circumstances created by COVID-19. Guatemalans have recently passed the 100-day mark of confinement due to the pandemic. The severe lockdown (which includes the imposition of curfews) has significantly hampered the ability of civil society and ordinary citizens to scrutinise and adequately deal with this very worrying development.

The UN Basic Principles on the Independence of the Judiciary reiterates that all state institutions must respect the independence of the judiciary. It also determines that “[t]here shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision”. For its part, the Inter-American Court of Human Rights has held that any interference with the functioning of the judicial power or interference with the work of judges or courts violates judicial independence and undermines democracy.

To use the words of the Inter-American Democratic Charter, what is happening in Guatemala at the moment amounts to an unconstitutional interruption of the democratic order. Sadly, Guatemala is not the only Central American state where this is happening. In neighbouring El Salvador, the President has clashed with the Constitutional Chamber of the Supreme Court, and the army has stormed Congress. It seems that the pandemic has revealed the fragility of Central American constitutional systems and has scratched open wounds from its recent, bloody, dictatorial past.

Carlos Arturo Villagrán Sandoval is a Researcher atthe Instituto de Investigación y Estudios Superiores en Ciencias Jurídicas y Sociales of Universidad Rafael Landivar.

Suggested Citation: Carlos Arturo Villagrán Sandoval, ‘A Constitutional Telenovela: The Deepening Constitutional Crisis in Guatemala’ IACL-AIDC Blog (7 July 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/7/a-constitutional-telenovela-the-deepening-constitutional-crisis-in-guatemala