The attorney general appointment: new interpretation by the Constitutional Court

Last Friday, we learned that the Constitutional Court (CC) of Guatemala, granted a preliminary injunction (Amparo provisional) (file 833-2022) regarding the process of nomination of the next Attorney General (FG). In the opinion, the CC redefined the interpretation of article 214 of Guatemala’s Constitution that states:

“In order to be elected magistrate of the Supreme Court of Justice, besides the requirements mentioned in Article 207 of this Constitution, it is necessary that the candidate be over forty years of age and that he [or she] will have completed one full term as judge in the Court of Appeals or of other collegiate tribunals with similar characteristics, or that he [or she] will have exercised the profession of lawyer for more than ten years.”

The CC claimed that in order to be eligible as magistrate of the Supreme Court one must either have completed one full term as judge of a Court of Appeals or have exercised “the profession of lawyer for more than ten years” and been a judge (de paz o de primera instancia) for ten years is not counted since been a judge it is not equivalent as exercise the “profession of lawyer”. Therefore, the only members of the judicial power eligible to become AG are those who completed a period as magistrates of the Court of Appeals.

Since article 251 of the Guatemalan Constitution states that in order to be head of the Public Ministry and therefore AG, one must “…have the same qualities as the magistrates of the Supreme Court of Justice”, this interpretation is relevant for the current process of selecting next attorney general. The nominating commission will reject for the first time any applicants whose only experience is in inferior courts.

Naturally, there is political consideration that can be made in this regard. I do not intend to address this in this space. I propose to examine two legal aspects that are considered relevant to the case.

First aspect: Disdain for precedent. In 2014, in the accumulated files 4645, 4646, and 4647-2014, the CC ruled that «…there is no basis to distinguish, as regards the requirements to apply for the judiciary, between those who exercise as judges and those who perform the profession [of lawyer] independently…» and that «…it must be understood that the Constitution, in articles 216 and 217, when referring to the exercise of the jurisdictional function and the exercise of the profession of lawyer, does not refer to two mutually exclusive requirements, but to the different surroundings in which the profession can be practiced«. (Own underlining)

The opinion issued last Friday openly contradicts the aforementioned interpretation of the Constitution. The CC did not reason the change of interpretation. What is even more surprising, this is just a preliminary injunction. It may reverse its decision in the sentence. By then, the selection process of the attorney general may have ended (it is scheduled to end in April).

Second aspect: the constitutional Court’s lack of an interpretive technique. This is a systemic problem of the Court. Some suggest settling problems like this by resorting to the interpretive rules of the Law of the Judicial Organism (LOJ)[1].

Why go to rules of lower rank (Ley del Oragnismo Judicial -LOJ-) to make constitutional interpretation? Is it considered that the LOJ constitutes part of the «material constitution»  «? not. It must be taken into account that article 2 of the Amparo Law requires its provisions to be interpreted extensively and seek respect for human rights and that article 42 mandates that the amparo court «Based on the preceding considerations and contributing its own doctrinal and jurisprudential analysis, will pronounce judgment, always interpreting the Constitution extensively…» (Own emphasis).

The Constitution is full of historical, political, ideological concepts, etc., and the clauses of the Constitution barely mark general parameters that must be filled with meaning by the constitutional judge. Nor is recurring to the Spanish language dictionary or legal dictionaries is a way out, although the CC often incurs in this practice.

We are talking about interpreting the Constitution, not reading a set of instructions for assembling a machine. The task of interpreting the Constitution demands considering what is expressed by the Constitution as interpreted in the context and the same values ​​of the Constitution and the rest of its provisions.

In CC owns jurisprudence is well established that the Constitution could not be read and interpreted in isolation (file 280-1990). In this sense, the 2014 ruling seemed to move in that direction. Likewise, given the various possible interpretations of the constitutional norm, those that best incorporate the principles and values ​​of the Constitution and other international instruments on human rights that they contain should prevail. That is not the case of the recent ruling (file 833-2022).

An interpretation as reductive as the one suggested by the CC can create other problems. Are prosecutors eligible if they have completed ten years of experience as prosecutors? Since the CC refers narrowly to the “practice as lawyers” it is not clear whether a career prosecutor who has held the position for more than ten years is eligible or not because prosecutors do not act as “lawyers” in the strict sense of the word. Nor does the resolution help to clarify what should be understood as such.

After all, it seems that the constitutional requirement of experience seems to seek that the applicant has a minimum of experience in the field which can be in private practice or in different public offices. Under the CC’s new interpretation, it is possible for a person who has practiced as a judge in the criminal branch for twenty years no eligible for attorney general, while making eligible a lawyer who has practiced commercial law for ten years. It doesn’t seem like a consistent interpretation, but that would be a consequence of the Constitutional Court’s ruling.

Similar issues have been raised in other jurisdictions. In Colombia, for example, a doubt arose about the expression «having exercised the profession of the lawyer” due to the Statutory Law of the Administration of Justice (Law 270 of 1996). In this regard, the Council of State resolved:

«The requirement of having exercised the profession of the lawyer with good credit for ten (10) years, which pursues, is that the chosen one enjoy the adequate professional experience in legal matters, which allows him to perform the duties of the respective position successfully. Experience that is achieved not only by the lawyer acting on behalf of litigants before the judicial courts -exceeded criterion-, but in others: activities where the legal professional puts into practice their academic knowledge» (Colombia. Judgment 1628 of 1997 Council of State. own highlight).

I understand that today this resolution is more interesting because of its consequences in the situation. However, what I raise in this column is a discussion of the legal aspects of the issue, which go beyond the current attorney general election. I do not doubt that there will be spaces to analyze who is harmed or who benefits, but I do not intend to go into that issue to not condition the legal debate on these political aspects.

[1] This law contains the main principles to interpret legislation, not the Constitution.

Three events to watch in Guatemala in 2022

Originally published in La Hora oh January 3th.

In 2022, there will be three events to watch: the selection process of the next attorney general, the pandemic, and the electoral landscape for the 2023 election.

The selection process to elect the next attorney general will start in the coming weeks. First, Congress will swear a Nomination Committee. This committee has 15 members: 12 deans of the law schools, the president of the Supreme Court, the Court of Honor of the Bar Association’s president, and the president of the Board of Directors of the Bar Association. They must prepare a list of six candidates from which the president will appoint the attorney general for 2022-2026.

Two-thirds make decisions in the Nomination Committee, which means that ten votes out of 15 will be necessary to make any relevant decision. In another column, I hope to address the issue in greater detail.

Some speculate whether or not the current attorney general (included in a list of corrupt and undemocratic actors by the US government) will run for reelection. The relevant question is if the nomination committee would include her in the final list of six eligible.

Although the Law on Nomination Commissions sets some evaluation criteria, the nomination committee has some leeway to decide what specific aspects to ponder. Let us remember, for example, that in 2014 the commission did not include the then-attorney general, Claudia Paz y Paz, among the list of six eligible.

The second key issue is the pandemic. The risks of the omicron variant are still unknown. Some data suggest that it is more contagious but less lethal than the previous variants. Although experts suggest that viruses transmitted by air tend to mutate towards more contagious but less lethal variants, it is not ruled out that a variant may complicate things.

Still, it appears that vaccination is the only route to get around the pandemic. As more of the population acquires a certain level of immunity, it will be easier to live with the virus. Guatemala still exhibits surprisingly low vaccination rates. According to Our World In Data, only 36% of the population has received at least one dose, and only 26% have received the full schedule. 

Finally, we should pay attention to the electoral alliances considering that general elections will be held in 2023. So far, the ruling party has a solid coalition of 12 political parties in Congress that has allowed it to govern comfortably. We expect this to continue. However, given that there is no presidential reelection in Guatemala, it is common to see some factions begin to move their chips with a view to the next elections.

The fate of the UNE party (second in the 2019 presidential election) is another topic to follow now that Sandra Torres has won the game over those who planted internal opposition. The party has to fight a cancelation process for administrative infractions. If the party does not survive a cancellation process, it remains to be seen if Torres finds another electoral vehicle.

We should also remember that Torres still faces criminal charges of violating campaign finance rules for events in the 2015 campaign. Recent jurisprudence of the Constitutional Court favors her. 

Congress modified the campaign financing regulations in 2018. In similar cases, the court has ruled that criminal prosecution cannot be mounted for irregular electoral financing prior beforedue to the principle of non-retroactivity of the law (she is being charged for events of the 2015 campaign).

It will also be necessary to pay attention to the future that the «National Opposition Front» may have, led by congressman Carlos Barreda (UNE party). So far, the opposition has been weak and disorganized. And of course, we will have to keep our eyes on the favorite virtual candidates like Zury Ríos and Edmond Mulet.