Constitutional problems of law initiative 5272 in Guatemala

On March 8, Congress approved initiative 5272, Law for the Protection of Life and Family, with 102 votes of 160 members of Congress, and it became decree 18-2022. I do not intend to make an exhaustive examination of the statute, but I intend to shed some light on the constitutional problems it entails.

In summary, the now decree 18-2022 increases the prison sentences for crimes related to abortion, prohibits the teaching of any idea other than the family understood as a union exclusively of man and woman, both in public and private education, prohibits expressly same-sex marriage (although it was technically not allowed before), creates a crime of «promotion» and «facilitation» of abortion and orders doctors to render a report if an embryo or fetus dies due to natural causes or provoked (including miscarriage).

From a legal point of view, there is a lot to say. I will briefly summarize the main problems. First, there is a flagrant violation of the constitutional provision of equality. As the Constitutional Court (CC) itself has recognized in a judgment of January 2021 (file 3319-2020), equality (article 4 of the Constitution) prohibits discriminatory treatment of any person. In addition, the Court cites an advisory opinion of the Inter-American Court on Human Rights which establishes that the fundamental principle of equality and non-discrimination is already part of the domain of ius cogens.

This law institutionalizes discrimination, especially against people who are not heterosexual, but also towards heterosexual people who live in family units other than those defined in this law. According to the 2018 census, 25% of Guatemalan households have a woman as head of household.

The Court has established that criminal law is the ultimate mechanism for protecting fundamental rights. Second, it openly violates the principle of proportionality and «reasonableness» (razonabilidad) that the CC has recognized in criminal matters, especially in files 2951-2017 and 4099-2020. Also, «there can be no rules that classify crimes without any basis or excessive penalties that are unnecessary.» Abortion was already criminalized, and the penalties proposed by this law are disproportionate.

Third, the right to education is violated. All educational institutions are obliged to teach a particular family model, and it is prohibited to teach other ideas «incompatible» with that vision. Children would not have access to different sources of information, nor could they even contrast ideas because the law orders and proscribes specific ideas even for private education.

Fourth, freedom of expression and legal certainty are violated. A crime is created that penalizes the «promotion» of abortion. What does it mean to promote abortion? Talk about it? Propose that the exercise of freedom of expression be decriminalized? The criminal norm is not exhaustive, and it is not precise. This violates the legal certainty recognized in the jurisprudence of the Constitutional Court itself. It also affects the free expression of thought because it disproportionately limits free expression.

President Giammattei, in a brief message, suggested to Congress to «interrupt» the legislation process and file the decree. He announced that he would veto it if Congress did not file it and send it to him. According to the president, the law «suffers from technical deficiencies in its drafting» violates the Constitution and international conventions on human rights.

At writing these lines, Congress has not yet decided on the matter. The request to «archive» an already approved decree is a formula adopted by Congress in two episodes where they were forced to back down. This is the case of the controversial reforms to the Penal Code in September 2017 that intended to shield influential politicians from prosecution for violation of campaign-finance laws and the approval of the budget in November 2020. Congress reversed its course by «filing» the decrees after approval in both cases.

Technically, the legislative process ends its stages in Congress with the final approval. But in 2017 (case mentioned above), Congress decided to approve precedent 2-2017. It provided that if it received objections about the constitutionality or convenience once a decree was approved, it would inform the plenary session. If an absolute majority order it, it would be archived and not forwarded to the Executive. It is an unorthodox way out. The most worrying thing is that the internal law of Congress states in article 117 that, within the process of law formation: «In the first two debates of a bill, it will be discussed in general terms, deliberating on the constitutionality, importance, convenience and opportunity of the project». Evidently, that did not happen. Besides, law initiative 5272 had a favorable opinion precisely from the Commission of Legislation and Constitutional Affairs.