On December 14, 2023, the Constitutional Court (CC) of Guatemala delivered a landmark ruling, documented in case file 6175-2023. I had the privilege of serving as a lawyer in this civic endeavor, a team effort dedicated to the cause of this constitutional protection. The petitioners were citizens Javier Urízar Montes de Oca, Gregorio Saavedra, José Javier Gálvez, Hugo Rivas Gálvez, Sara Larios, Edgar Gustavo Lima, Ana Raquel Aquino Smith, Mateo Echeverría Román, Mariana Reyes Solórzano, and Andrea Reyes López.
This constitutional protection was filed on October 6, 2023, in response to the perceived threat of disregarding the public’s will, as expressed in the elections. This included specific concerns about the swearing-in of elected officials, including the president and vice-president. On the same day, the CC granted a provisional protection order, mandating the relevant authorities to fulfill their constitutional and legal obligations to ensure the alternation of power. (This provisional protection order is available for download here).
I’d like to highlight three critical aspects of the ruling (also available for download here).
- Threat to the Transition of Power on January 14, 2024
In Consideration VII, the CC recognizes that there is indeed a real threat that the scheduled transition of power on January 14, 2024, may not materialize. This is due to a specific reason: a judicial decision in the criminal sphere –the order of Judge Orellana to suspend the Semilla party– which could be invoked by the competent body to prevent the constitutionally foreseen transition.
The Court admits that a threat could arise if the effects of the criminal judge’s ruling suspending the Semilla party are misinterpreted and used as justification for not swearing in the presidential duo and their elected deputies. The essential question is: How does the Court respond to this situation? This leads us to the second aspect.
- Scope of a Criminal Judge’s Order Regarding the Semilla Party, Winner of the Presidential Elections
Later, the CC clarifies that although it recognized the ability of a criminal judge to suspend a political party by applying Article 82 of the Law Against Organized Crime (LCDO), as in the case of Semilla, this suspension “does not extend the power to the criminal judge to decree further effects specifically in the electoral sphere. Consequently, as a result of this resolution, it cannot be concluded that the credentials are invalid or anything similar.” (emphasis added).
This means that Congress cannot refuse to swear in the presidential duo and elected deputies using the judicial order as a pretext, as it has no effect on the electoral process.
- Election results cannot be changed
The ruling also establishes that electoral results are unalterable and must be respected once the electoral process has concluded and the results have been officially certified. In Roman numeral X, the CC explains this immutability. It even refers to the provisional protection order of July 1, 2023 (file 3731-2023), which led to the repetition of the vote count review hearings, thus providing a double opportunity for political parties to audit the results.
In Roman numeral XIII, the CC addresses statements made by the Public Ministry (MP) on December 8, in which members of the Semilla party were accused of certain crimes, and the possibility of annulling the elections was raised. The Court, on page 62, dispels any doubt by stating that, although the MP has the authority to conduct criminal investigations, these “cannot have the scope to prevent the respective completion and effects of the electoral process” (emphasis added).
The Court clarifies in Roman numeral VII of the resolution part that, despite the investigative powers of the MP “and the criminal judges, to judge cases where criminal offenses have been committed (…) as well as the powers of the Supreme Electoral Tribunal over serious evidence that presents an impact in the field of electoral organizations” (emphasis added), this refers to the consequences that MP investigations might have in relation to political organizations (parties), but does not affect the electoral results.
The Court concludes its ruling by ordering Congress and its Executive Board to guarantee the transition of power. Furthermore, in resolution point VI, it urges all authorities to fulfill their functions to ensure a peaceful transition. This article aims to provide a deeper understanding of the scope of this ruling, which marks a decisive moment in dissipating the uncertainty generated by repeated attacks on the electoral process.
A special thanks to Stanford University’s Rule of Law Impact Lab for their essential amicus curiae in this case. Their contribution, particularly in international legal standards, significantly strengthened the arguments presented to the Court, demonstrating the positive impact of academic collaboration in the defense of democracy.
The group that filed the legal action
