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Guide to Legal Research in Guatemala

 

By Ana Cristina Rodríguez

 

Ana Cristina Rodríguez obtained a degree as Lawyer and Notary Public from Universidad Francisco Marroquín, Guatemala. She also obtained an LL.M. degree from Columbia University, New York. She is a member of the Guatemalan Bar and New York Bar Association.  Currently she is the First Secretary of the Permanent Mission of Guatemala to the United Nations in charge of the 6th Committee (legal affairs).

 

Published July 2006

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Table of Contents

1.     General Information

2.     The Constitution

2.1.   Constitutional Law

2.2.  The Constitutional Court

3.     Structure of Government

3.1.   The Executive Branch

3.2.  Legislative Branch

3.3.  The Judicial Branch

3.4.  Administrative Law

3.5.  Other State Organs

3.5.1.     Public Prosecutor’s Office

3.5.2.     Attorney General’s Office

3.5.3.     Ombudsman

4.     Sources of Law

4.1.   Legislation

4.2.  Treaties

4.2.1.     Competencies of State Powers Concerning International Treaties

4.2.2.     Approach to the Reception of International Law within Domestic Law

4.3.  Jurisprudence

5.     Foreign Direct Investment

5.1.   Expropriation

6.     Research Tools

6.1.   Government Internet Sites

6.2.  Guatemalan Bar and Legal Associations

6.3.  Law Schools

6.4.  Books

6.5.  Newspapers

6.6. Participation in International Organizations

 

1. General Information

Guatemala is located in Central America; it borders with Mexico to the Northwest, El Salvador to the South, and Honduras and Belize to the East. It covers a surface area of 108, 890 sq kms.  It has a population of approximately 13 million people.  The capital is Guatemala City with approximately 3 million people. The official language is Spanish, but it also has 22 Mayan languages since 43% of the population is indigenous. 

 

The name of the Republic of Guatemala comes from the Mayan word Quauhtlemallan” which means place of many trees.  The Mayan civilization flourished in what is today Guatemala 1000 years before the Spanish settled there.  From 1524 to 1821 Guatemala became a Spanish colony. 

 

The country has seen a variety of military and civilian governments. The signing of the 1996 Peace Accords ended 36 years of internal conflict in Guatemala.  The Peace Accords were more than just a ceasefire but rather a comprehensive set of agreements in the areas of human rights, agrarian law, and indigenous peoples, among others.  They have served as a model for other countries in their transitional justice and peace efforts. 

 

2. The Constitution

The Political Constitution of the Republic, hereinafter the PCR, was issued by the National Constitutional Assembly on May 31, 1985, published on June 3, 1985 and in force as of January 14, 1986.  In 1993, it was reformed by legislative accord number 18-93 of the Congress of the Republic enacted after approval through referendum.  Its framework contains titles, chapters, sections and each provision is numbered as an article.

 

The PCR is the backbone of the legal system and is divided into three main parts:

 

a)    Dogmatic: that recognizes and protects the fundamental rights and liberties of its nationals;

b)    Organic: that establishes the basic structure of the national government, the three branches and enumerates their powers;

c)     Procedural: that sets forth a set of proceedings and safeguards used to enforce and protect the rights and liberties recognized in the Constitution.

2.1 Constitutional Law

Guatemalan constitutional law has two main procedures that can be described as follows:

 

a)      Procedures primarily concerned with the protection of constitutional supremacy through general and concrete procedural remedies against the unconstitutionality of the laws.

b)      Procedures primarily concerned with the protection of constitutional individual rights, one being the writ of habeas corpus[1] that guarantees the right to personal freedom, and the other the writ of amparo[2] that protects the rest of fundamental rights from arbitrary governmental acts.

 

Regarding the first, that is procedures concerned with constitutional supremacy, articles 266[3] and 267[4] of the PCR set forth two types of unconstitutionalities of the laws.  First a general unconstitutionality and second an unconstitutionality for concrete cases.  The difference between both is that the latter is only binding on the parties whereas the former has full effects throughout the whole legislative system.  Both remedies have the purpose of guaranteeing the principle of constitutional supremacy set forth in articles 44, 175 and 204 of the Guatemalan Constitution.[5]

 

The two remaining procedures, concerned with the protection of individual fundamental rights, are governed by articles 263[6] and 265[7] of the PCR.  The basic difference is that habeas corpus primarily guarantees individual freedom whereas the writ of amparo guarantees all fundamental rights.  Both writs are similar in the sense that they protect individuals in their fundamental rights from arbitrary acts of government.

 

Except for the case of the general unconstitutionality of the law, all other procedures such as the amparo, habeas corpus and unconstitutionality in concrete cases require a direct interest in order to have standing.  This is either by invoking an injury or a threat of an injury to individual rights as guaranteed in the PCR.  An injury occurs in any case in which the law or application of the law imposes an immediate, direct and personal obligation that abrogates or modifies rights legally vested in the person of the complainant.[8]

 

Constitutional Law in Guatemala is not only governed by the PCR but also by the “Ley de Amparo, Exhibicion Personal y de Constitucionalidad” (herinafter Law on Constitutional Protection and Actions) decree number 1-86 of the National Constitutional Assembly.  This legislation provides a detailed regulation of the constitutional procedures, enforcement mechanisms, and their conditions of admissibility and spheres of competence.[9]

 

2.2 The Constitutional Court

Guatemala’s Constitutional Court is relatively new, established in 1985 as a result of a democratization process and the implementation of a new constitution, which was approved by a freely elected constitutional assembly representing the existing political and legal spectrum. 

 

With regards to the organization of the Constitutional Court, the PCR contains the provisions that govern the structure of the Court in articles 268 to 272.  The Court is composed of five justices serving a five year term, each with a corresponding alternate.

 

Regarding judicial review, Guatemala follows a mixed or hybrid judicial review system that combines the diffused system[10] in the case of unconstitutionalities in concrete cases and amparos, with the European centralized system in the instance of general unconstitutionalities of the laws subject only to the Constitutional Court.

 

Constitutional Courts under the centralized model are similar to the Guatemalan Constitutional Court in the sense that they are specialized courts with regards to constitutional matters.  But the difference in the Guatemalan system is in the fact that its jurisdiction is not exclusive.  Although general unconstitutionalities of the laws can only be reviewed and declared by the Constitutional Court, all other courts automatically transform into constitutional courts at the first instance when presented with writs of amparo or unconstitutionalities in concrete cases.

 

Despite the variation from the two principal models of constitutional control, the Guatemalan system is more inclined towards the centralized system.[11]  Although judges can exercise judicial review in concrete cases [either through amparo or an unconstitutionality], on appeal the Constitutional Court has exclusive jurisdiction.[12]

 

3. Structure of government

Guatemala is a democratic republic formed by the state organs set forth in the PCR.  For administrative purposes it is divided into twenty-two departments which are each divided into municipalities.  The departmental government is entrusted to a governor appointed by the President of the Republic and his duties are administrative only. 

 

The municipal government is carried out in an autonomous manner and is exercised by a Municipal Council presided over by a Mayor, all members being elected by popular vote.  The Municipal Code, decree 12-2002 of Congress sets forth in detail the competencies of municipalities.  It is also worth mentioning that the transit authority is also under the purview of municipalities.

3.1 The Executive Branch

The Executive Branch is headed by the President of the Republic.  The President is elected by the people through universal suffrage and absolute majority of votes for a single four-year term.  The President always acts in conjunction with the Ministers, either in council, or separately with one or more of them. 

 

There is also the office of the Vice-President of the Republic; he can exercise the powers of the President in the same manner and for the same term. 

 

Ministers of State are nominated and discharged by the President of the Republic as are the respective deputy ministers.  There are twelve Ministries in the current structure of the government, the most recent one being the Ministry of Environment and Natural Resources created in 2000.

 

Secretariats of the Presidency are also important dependencies of the Executive Branch.  There is no limit in the number of Secretariats that can be established, although the PCR only refers to the General and Private Secretariats´ of the Presidency.  Secretaries have the same rankings as Ministers of State.

 

In addition to the provisions contained in the PCR, the specific law governing this branch is the Executive Branch Law, decree 114-97 of Congress.

3.2 Legislative Branch

The Congress of the Republic is empowered to enact laws.  Congressmen are elected directly by the people through universal suffrage for a term of four years and through electoral districts.  Each Department constitutes an electoral district with a right to elect a congressman or more than one, subject to the number of inhabitants per district. In addition each district elects an alternate congressman.

 

The legislative power is governed by the Legislative Branch Law, decree 63-94 of Congress.

3.3 The Judicial Branch

The Judicial Branch is entrusted with the duty and the authority to render justice independently. To this end, the Judicial Branch Law, decree 2-89 of Congress, states that in exercising the sovereign power delegated to it by the people of Guatemala, the Judicial Branch must impart justice in accordance with the text of the Constitution.  There is a duty imposed on all organs of the public administration to assist and cooperate with the Judiciary in the administration of justice.

 

In the Guatemalan System, the different courts are distinguished according to whether they have exclusive or ordinary jurisdiction.  The Judicial Branch Law establishes the principles that courts must follow, as well as the competence of courts with the respective appeals system. Concerning the appeals system, the PCR imposes a two-tier system not allowing more than two instances.

 

The following is a general description of the Guatemalan court system:

 

a)    Small court judges: This is the name given to “judges of peace” exercising their duties in the respective municipalities; it is also given to Mayors who carry out the duties of judges of peace in municipalities where the latter do not exist.

b)    First instance courts:  They judge first tier cases in civil, commercial, criminal, labor and family matters.

c)     Court of Appeals:  Presented with the appeals cases from the first instance.  It also hears some matters coming under exclusive jurisdiction.

d)    Supreme Court of Justice:  It is the highest court in the Republic composed of 13 justices.  It is divided into chambers.

3.4 Administrative Law

General relations between the administrative government and its employees are governed by the Civil Service Law, decree 1748 of Congress.  In addition, Foreign Affairs servants and Judiciary officers have specific Civil Service Laws.  In the case of autonomous decentralized state organs, these are governed by their own constitutive regulations.  The latter would be the case of the organic law of the Superintendence of Banks, the Guatemalan Institute of Social Security, the Guatemalan Institute of Tourism, among others.

 

For the settlement of disputes within the administrative realm, remedies must be exhausted before a case can be presented before a judge.  In that case the Contentious-Administrative Tribunal is empowered to hear litigation deriving from acts or resolutions made by the public administration, municipalities, and decentralized, autonomous or semi-autonomous entities in the exercise of their own powers, as well as in cases of claims based on contracts or concessions of an administrative nature.

3.5 Other State Organs

The following authorities are independent state organs and not under the jurisdiction of any of the three main branches of government, although they are under the duty to fully cooperate with them. 

3.5.1 Public Prosecutor’s Office

It is prescribed as an auxiliary of the public administration and the courts.  In cases of public offenses, criminal action is of a public nature and may be brought by the Public Prosecutor’s Office, by the offended party or by any citizen.  The Public Prosecutor’s powers and duties are governed by the specific Organic Law, decree 40-94 of Congress.  The Public Prosecutor is appointed by the President for a term of 4 years.

3.5.2 Attorney General’s Office

Basically the duties include representing the state and defending its rights and interests by legal or other means, bringing legal action of any type and aiding the courts and public administration as well as exercising the functions of juridical advisor.  The Attorney General’s powers and duties are governed by the specific Organic Law, decree 512 of Congress.  The Attorney General is appointed by the President for a term of 4 years.

3.5.3 Ombudsman

Guatemala has a national human rights committee composed of congressmen representing the different political parties.  The Ombudsman is part of the committee and has the main responsibility of investigating human rights allegations and promoting efficiency and the good management in the area of human rights.  The Ombudsman is appointed for five years and presents and annual report on human rights through the aforementioned committee.

 

4. Sources of Law

Article 2 of the Judicial Branch Law enumerates the sources of law recognized by the Guatemalan legislation. In said article the law is the primary source of the juridical internal order and the jurisprudence shall complement it.  Customs can only be invoked in the absence of an applicable law insofar they are not contrary to morals, public order and are duly proven.

4.1 Legislation

Guatemala is a civil law country in which legislation is seen as the primary source of law especially through codification. In that sense, laws are only valid once the complete enactment procedure is followed and come into force once they are published in the Official Gazette.  Generally the entry into force of every law is 8 days as of its publication in the Official Gazette.

 

The process for enacting laws requires a presentation and three readings by Congress in three separate sessions.  Then the draft law is passed to the Executive Branch for signature and publication.  After 15 days the law is passed insofar the President does not exercise his right to veto.  If that is the case then the draft is final and the text is sent for publication in the Official Gazette.  On the other hand, if the President exercises the veto, than it can still be overturned by a two-thirds majority of Congress and is then sent for publication in the Official Gazette. 

 

The Guatemalan legal system also allows for emergency sessions to enact laws through a single session requiring a two-thirds majority by Congress. 

 

The general rule is that laws passed by Congress require the vote of an absolute majority.  But in some cases a decree may require a higher majority in order to be passed.  Article 172 of the PCR enumerates the cases in which a qualified majority is needed.[13]   These cases are:

 

a)    When they refer to the passage of foreign military troops through the national territory or the temporary establishment of foreign military bases.

b)    Concerns or could concern the security of the State or end a state of war.

 

Below is an illustration of the hierarchy of laws in Guatemala:

 

4.2 Treaties

The PCR only contains one express provision defining the internal status of treaties within Guatemala:

 

Article 46. Preeminence of International Law. It is established as a general principle that in the matter of human rights, treaties and conventions accepted and ratified by Guatemala have preeminence over the juridical internal order or domestic law.

Concerning the scope of the expression “juridical internal order” or “domestic law”, the legal question that is presented is whether the PCR must be regarded or not as forming part of domestic law.

The PCR abides by the principle of constitutional supremacy whereby any law, governmental resolution, treaty or provision of any nature is ipso jure null and void if it contradicts, restricts or diminishes the constitutional text.[14] Thus, the Constitution is above any law, governmental resolution, provision of any nature, including treaties. 

 

In practice, the matter of hierarchy only becomes relevant once a legal conflict arises. Meanwhile, international law and domestic law have for the most part separate fields of operation and each is supreme in its own domain. Nevertheless, on occasion they have a common field of application, and should a conflict arise, what is implied is a conflict of obligations.  

 

The conclusion is that the principle of constitutional supremacy, as described before, does not include the PCR as part of domestic law in the terms spelled out in article 46.  Admitting to such a rule would weaken the importance and strength of the Constitution within the Guatemalan legislation.  Additionally this would allow for constitutional provisions to be superseded through treaty-making processes.

 

The Constitutional Court “CC” has been called upon to deal with this matter. In its jurisprudence the CC considered the articles of the PCR could not be read and interpreted in isolation.  Any constitutional interpretation should be extensive and take into account the rest of its provisions.  Therefore ruling the only interpretation applicable to article 46 is that the Constitution does not form part of domestic law because other constitutional provisions recognize the Constitution as the supreme norm.[15] 

 

The CC has also accepted that when a provision of human rights treaty differs from a constitutional norm, the norm that should prevail is that one that recognizes more rights and improves benefits to the Guatemalan nationals.  Although this case can place human rights treaties on a higher level than the Constitution it would not present a conflict of hierarchy in itself since the PCR is regarded as a normative body of minimum rights, always subject to improvement and expansion to other rights and liberties.

 

In Guatemala, then, and based on several rulings of the CC, human rights treaties are at least, on an equal footing with the Constitution.  Both the PCR and any human rights treaty would overrule any other law, governmental resolution and even any other subject matter treaty in the event of a legal conflict.  

 

Notwithstanding the subheading of article 46 of the PCR spells out “preeminence of international law”, it does not refer to all of the sources of international law, but only treaties, and not even all types of treaties, but exclusively those regarding human.

 

Sources articulate what the law is and where it can be found.  On the domestic plane article 2 of the Judicial Branch Law spells out that custom will only rule in absence of an applicable law, and as long as it is evidenced and not contrary to the morals or public order.

 

On the international plane article 38 of the Statute of the International Court of Justice “ICJ” confers a guide on how the legal quality of alleged rules of international law are assessed.  Guatemala is part of the Statute of the ICJ and therefore bound by article 38 that spells out additional sources.[16] Although article 38 does not mention the word “sources”, but rather spells out how the Court is to decide disputes which may come before it for settlement, said article is still regarded as an authoritative statement on the sources of international law.  

 

Guatemala’s recognition of other sources of international law is contained in article 149 of the PCR concerning international relations. Said article provides that: “Guatemala will norm its relations with other States in accordance with the principles, rules and practices of international law […].”This article incorporates the reception in domestic law of any principle, rule and practice of international law, and this includes the recognition of customary international law.

 

The CC has declared that article 149 of the PCR contains the rule that no State can invoke internal law to justify the non-compliance of international obligations.[17] In addition, the CC has also considered that the conventional provisions of international law should be interpreted in accordance with the principle of pacta sunt servanda […].[18]

 

Guatemala has ratified the Vienna Convention on the Law of Treaties of 23 May 1969 “VCLT” in 1997.[19]  As of that moment no doubt was left with regard to the status of all subject-matter treaties over domestic legislation. This fact can be extracted from the provisions of the VCLT.

 

Article 26: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Article 27: “A party may not invoke the provisions of its internal law as justification of its failure to perform a treaty.”

Article 46: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

 

Furthermore the Guatemalan Government made a reservation regarding article 27 of the VCLT declaring that the PCR was not to be understood as domestic or internal law. With this reservation the principle of constitutional supremacy was confirmed and the hierarchy of all treaties over internal laws was defined.

 

Although this issue was clarified after Guatemala’s ratification to said treaty, uncertainty still rests regarding the regulation previous to this moment. It can be argued that all treaties had the same status over internal law even before the entry into force of the VCLT.  To this effect, articles 26 and 27 of the VCLT were recognized as customary international law before the VCLT came into force.  In that sense, article 38 of the Statute of the ICJ and article 149 of the PCR support that customary international law is part of Guatemalan legal system.

4.2.1 Competencies of State Powers concerning Treaties

The President of the Republic in his condition of Chief of State is the representative of the Nation before the international community.  Article 183, section “o)” of the PCR entrusts the President with the administration of foreign policy and international relations; the execution, ratification and the denunciation of treaties and conventions in accordance with the Constitution.   The Vice-President is allowed to participate jointly with the President in the formulation of the foreign policy and international relations.[20]

 

The Ministries of State also have treaty-related powers.  According to the Executive Branch Las the following Ministries are charged of:

 

a)    The Ministry of Foreign Affairs: Coordinate, analyze, support and follow up the negotiation of conventions related to trade, investment, loans, tourism, the environment, transportation, communications, science and technology, economic integration, labor, extra-regional integration, energy, intellectual property, international technical and financial cooperation, education, training and others.[21]

b)    The Ministry of Labor: In coordination with the Ministry of Foreign Affairs, represent the State before the international organizations related to the affairs of its competency and in the processes of negotiation of the international convents on labor, as well as the application of those that are in force.[22]

c)     Ministry of Health: Must seek the fulfillment of international treaties and conventions related to health in cases of emergencies caused by epidemics and natural disasters. [23]

d)    The Ministry of Economics: Conducting, under the delegation of the President, the negotiations of bilateral and multilateral treaties and conventions on international commerce, as well as their execution once ratified. Additionally this Ministry must secure the processes of Central American Trade Integration, the negotiations of free trade agreements and the formulation and execution of tariff policies. [24]

 

In Guatemala the laws passed by Congress are known as “decrees of the Congress of the Republic”.  In certain cases the PCR allows the President to ratify a treaty only after the legislature has given its approval.  Therefore some treaties require a previous examination by Congress as a safeguard to prevent the executive from using its treaty-making competence to introduce domestic legislation without going through the necessary legislature procedures.

 

In other cases, treaties do not require an enabling act, meaning that any other treaty that does not fall within the following situations can omit passing through Congress. The approval of Congress before the ratification of a treaty, convention or any other international agreement is required when:[25]

 

a)    A law in force that requires the same majority of votes as this Constitution is affected.[26]

b)    The territory of the nation is affected whether by the establishment of an economical or political Central American integration or by the transfer of competencies to communitarian agencies or organizations.

c)     Whereby the State is financially committed to an undetermined amount or the amount exceeds by 1% the National Budget of Ordinary Income.

d)    Whereby the agreement of submitting any issue to a judicial or arbitral international decision.

e)     They contain a general arbitration clause or the submission to an international jurisdiction.

Congress does not enjoy the competence to act on the treaty itself and thus Congress cannot repeal a treaty. Specific procedures must be followed when a treaty conflicts with a norm that wishes to be enacted by Congress, such as the denunciation of the treaty.

Regarding the Judiciary Branch, article 204 of the PCR establishes that the courts will observe the principle that the PCR prevails over any law or treaty.[27]  The latter means that any judgment issued by the national courts of Guatemala must observe the principle of constitutional supremacy.

4.2.2 Approach to the Reception of International Law within Domestic Law

The approach of a particular state’s to international law will be characterized by that state’s attitude to and reception of international law- an attitude which may and does differ according to the type of international law in question-treaty law or customary international law. Strictly speaking the reception of international law by a state is a matter of domestic legislation. If a country is “monistic”, it accepts international law automatically as part of its domestic law and does not demand an express act of the legislature, whereas if a state is “dualistic”, international law will only become part of its domestic law if it has been expressly adopted as such by way of a legislative act.

 

Article 149 of the PCR admits customary international law as part of domestic law insofar it governs its international relations in accordance with international principles, rules and practices.  This means that a rule of international law can be enforced without being enacted by Congress.  This is only valid if the existence and extent of a certain rule of international law has been duly proven to be binding and accepted by the international community as a whole, and if it was never rejected by the State under consideration. 

 

On the other hand, the treaties enunciated in articles 171 and 172 of the PCR must be approved by Congress before they are duly ratified and incorporated into domestic law. As for the rest of the treaties not contained in the aforementioned articles, these are automatically incorporated without requiring an act by Congress.

 

Accordingly with respect to customary international law and treaties not contained in articles 171 and 172 of the PCR, it could be said that Guatemala is monistic in its approach towards the incorporation of international law into domestic law, and as an exception, in the case of treaties described in articles 171 and 172 of the PCR, Guatemala is dualistic. 

4.3 Jurisprudence

In article 2 of the Judicial Branch Law the reference is made to jurisprudence.  This mention is important because the expression “jurisprudence” is equivalent to what is known in domestic law as “legal doctrine”.  According to article 627 of the Civil Procedure Code we have legal doctrine after five continuous uniform judgments issued by the Supreme Court (cassation) setting forth the same criteria. 

 

Article 43 of the Law on Constitutional Protection and Actions establishes that legal doctrine is set forth by three continuous and uniform judgments issued in the same sense by the Constitutional Court.  The Constitutional Court has the right to step aside from its jurisprudence and this innovation shall not be binding for other tribunals unless legal doctrine is once again established.

 

5. Foreign Direct Investment

1996 marked the beginning of a series of important events that contributed to a more secure and attractive investment environment in Guatemala.  Two important laws were passed.  First, as of May 21, 1996, legislation based on the UNCITRAL Model Law on International Commercial Arbitration was enacted in Guatemala. [28]  Guatemala is one of the UNCITRAL Model Law Jurisdictions.  Added weight was given to the fact that this law allowed for the use of international arbitration for the first time.  Second, a Foreign Investment Law (FI Law) was passed for the first time in 1998.[29] 

 

At the domestic level, foreign investors and their investments are governed mainly by what is prescribed in the Foreign Investment Law. The Investment Law was the first to exist as such in the Guatemalan legislation.  Previously many investment provisions existed scattered among different industry sector laws.  The prior rules did not protect foreign investment; they only set forth regulatory mechanisms, performance requirements and special rules for foreign investors.  What the Investment Law did was to harmonize the various existing rules and eliminate arbitrary restrictions that limited investments within certain commercial activities.

 

Article 2 of the FI Law provides that the foreign investor has the same rights and enforcement mechanisms as the Guatemalan nationals.  Nonetheless, if the foreign investment deals with a part of the national economy governed by a special law, the foreign investor shall also abide by its guidelines. 

 

At the international level investment rules are governed by treaties and customary international law.  The first international agreement that Guatemala joined containing investment provisions was the Multilateral Treaty for Free Trade and Central American Economic Integration.[30]  

 

In 2005, Guatemala, along with the rest of Central America, Dominican Republic and the United States concluded negotiations on the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR). One of the most significant chapters arising from the CAFTA-DR is Chapter 10 on Foreign Direct Investment. This agreement would represent the most detailed and precise set of rules to form part of the Guatemalan legislation on foreign investment. In the case of Guatemala, the CAFTA-DR investment rules will not undergo a revolutionary implementation process because many of the substantive rights are already contained in the FI Law.[31] 

5.1 Expropriation

The Guatemalan Constitution contemplates expropriations in cases of collective use, social benefit or public interest duly justified.[32] Any taking is subject to previous compensation at the actual value in fully usable legal currency.  It also sets within its own standard of promptness a time-limit of 10 years for any compensation to be paid.

 

Article 39 of the PCR provides that the expropriation process will be subject to the rules elaborated by domestic law.  The two most relevant laws governing expropriation, compensation, and their procedures in Guatemala are the Expropriation Law[33] and the Foreign Investment Law.

 

The specific law is the Expropriation Law, which dates back to 1948. This law is complemented by the expropriation provisions contained in the Foreign Investment Law. 

Just because Guatemala is a developing country does not mean that its expropriation laws fall short of the internationally recognized standard for expropriation and compensation. 

 

To be more specific the text of article 40 of the PCR prescribes the following: 

 

“In concrete cases, private property may be expropriated for reasons of collective utility, social benefit of public interest duly verified.  The expropriation must follow the procedures established in the law, and the affected property shall be valuated by experts based on the current value. 

The compensation shall be previous, in current effective currency, unless the interested party agrees to another form of compensation. 

 

Only in case of war, public calamity, or grave disturbances to the peace can property be intervened or occupied, or expropriated without previous compensation, but this shall be made immediately after the emergency ends.  The law shall establish the rules to follow with the enema property.  The form of payment of the compensations for the expropriation of idle lands shall be established by law.  In no case shall the term to pay said compensation exceed ten years.”

 

The Expropriation Law also touches upon emergency expropriations, requiring that at least the amount of book value be deposited in favor of the owner.[34] Article 40 does not require prior compensation in cases of emergency but requires compensation upon the ending of the state of emergency. That is why the payment of interests is required in article 10 of the Expropriation Law and must be equivalent to the average interest rates published by the banks of the financial system on the prior day. 

 

Finally we reach the part concerning the amount that must be compensated in case of expropriation.  Although the foreign investor obviously will be concerned by the taking itself, the right to take is difficult to challenge.  Thus, traditionally most of the problems have centered on valuation procedures, to determine just compensation.  The disagreement involves whether the payment standard should be “just”, “appropriate”, “prompt, adequate and effective,” or bear some other label.

 

The Guatemalan Constitution requires compensation to be made at the actual value of the property.   However some international rules, like the ones contained in the CAFTA-DR refer to “fair market value.”  Since the PCR leaves the expropriation and compensation procedures in the hands of domestic law, article 12 of the Expropriation Law establishes the following valuation method. First the state and the expropriated person can agree to determine what the compensation value will be.  Should the parties fail to reach such agreement, then expert valuators can determine the actual value of the property taking into account the value in books and the following:

 

a)    The actual value of the property,

b)    The reciprocal offers of both parties,

c)     The evidence offered by the parties. 

 

The valuators shall be named in accordance with the procedure set forth in the Guatemalan Civil Procedure Code.  The valuators are required to duly reason their opinions and are responsible of any negligence or lack of integrity in which they may incur.[35]

 

A question still remains and it is whether actual value is equivalent to fair market value.  The PCR only refers to the actual value, so this is all that could be obtained under Guatemalan law.  The procedures previously described seem to be accurate in trying to determine not only an actual value but also a fair market value. Should a difference result, then it could probably be object of a claim, but it is very remote that the difference result disproportionate.

 

As long as the actual market value is paid, a State should not be held liable ipso facto on the basis that compensation is not fair to the investor receiving it.  Also, guessing compensations granted in accordance with due process by impartial expert valuators could go beyond the point of receiving fair compensation.  These problems, however, are mitigated by the fact that, no massive expropriations have occurred in Guatemala since World War II.  Therefore actual promptness or adequateness of compensation for expropriation cannot be evaluated. This also proves that expropriation risk in Guatemala is low.  Usually the takings in Guatemala have been of property owned nearly exclusively by nationals rather than by foreign investors. 

 

6. Research Tools

6.1 Government Internet Sites

Executive Branch

 

Legislative Branch

 

Judiciary Branch

 

Other State organs

 

Public Registries

6.2 Guatemalan Bar and Legal Associations

6.3 Law Schools

6.4 Books and Publications

Legal Databases

The main databases in Guatemala for access to legal documents and legislation are the ones indicated below.  Unfortunately they are not free.   

 

Case-law

It is very difficult to find Guatemalan case-law in electronic format.  The aforementioned databases have some case-law, especially the Constitutional Court jurisprudence and relevant Supreme Court or Contentious Administrative decisions.  Masterlex is a database that provides access to all the jurisprudence of the Guatemalan Supreme Court and Constitutional Court.  (CD-ROMs with this case-law are also available).

 

 

The Judiciary Branch offers some services on-line such as (paid) access to the Supreme Court Masterlex and a tracking system of current cases submitted before the courts. These services must be accessed from the Judiciary Branch website hyperlinked above in government sites section.

 

Websites containing Guatemalan laws

Although somewhat dispersed throughout different links, the following websites can be used as a reference for free access to Guatemalan legislation. 

 

Libraries

 

Periodicals

  • Diario Oficial de Centro América – (Official Gazette ): as indicated above in section 4.1, the final step to the enactment process of laws is their publication in the Official Gazette called “El Diario Oficial de Centro América”.  The official website can be visited to obtain daily information on publications.  However in order to have access to past publications a service fee must be paid.
  • Revista de la Facultad de Derecho, Universidad Francisco Marroquín (Guatemala) - Compilation of Guatemalan Legislation by Raúl Figueroa Sartí, trimester publications since 2001, Editors F&G Editores / Editorial Cholsamaj, 2001

 

Books

A legal compilation book used by law students and professionals is the “Biblia Jurídica” which includes basic important laws such as the Civil Code, Commercial Code, Civil and Commercial Procedure Code, Criminal Code, Criminal Procedure Code, Labor Code, Military Code, among others.

 

The following books are general references to specific subject-matters of law published by renowned jurists in Guatemala:

 

  • Maldonado Aguirre, Alejandro, Nuestra Constitución, Editorial Piedra Santa, 2001
  • Maldonado Aguirre, Alejandro, Reflexiones Constitucionales, Imprenta Corte de Constitucionalidad, 2003
  • Castillo González, Jorge Mario, Constitución política, comentarios, Guatemala, 1994.
  • Prado, Gerardo, Derecho Constitucional Guatemalteco, Editorial Estudiantil Fénix, 2003
  • Rohrmoser Valdeavellano, Rodolfo, Corte de Constitucionalidad. La Jurisdicción Constitucional en Guatemala, in Juan Vega Gómez and Edgar Corzo Sosa, (coords.), Tribunales y Justicia Constitucional. Memorias del VII Congreso Iberoamericano de Derecho Constitucional, Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas, Serie Doctrina Jurídica, 108, México, 2002
  • Villagrán Kramer, Francisco, El Largo brazo de la justicia penal internacional: estudios de derecho penal internacional para jueces y abogados, Imprenta Off-Set copi Fiel Guatemala, 2001
  • Villagrán Kramer, Francisco, Derecho de los Tratados, Imprenta Corte Suprema de Justicia et al, 2002
  • Orellana Zabalza, Gabriel, El Derecho de los Tratados en Guatemala, Imprenta Universidad Francisco Marroquín, 2003
  • Calderón Castillo, Hugo, Derecho Administrativo,
  • Rivera Woltke, Víctor Manuel, Posición del Juez en Guatemala, in La Justicia como Garante de los Derechos Humanos: La Posición del Juez, ILANUD/Unión Europea, 1996
  • Aguirre Godoy, Mario, Derecho Procesal Civil Guatemalteco, Editorial Edita, 1982
  • Aguirre Godoy, Mario, Repertorio de Jurisprudencia, Imprenta Universitaria, 1969
  • Fernández Molina, Luis, Derecho Laboral Guatemalteco, Editorial Oscar De León Palacios, 1996, 2002
  • Muñoz, Nery Roberto, La forma notarial en el negocio jurídico: escrituras públicas,  Editorial Infoconsult Editores, 2001
  • Figueroa Sarti, Raúl,  Código penal, concordado y anotado con la exposición de motivos y la jurisprudencia constitucional y de la corte suprema, Editorial F&G Editores, 2004
  • Figueroa Sarti, Raúl, Código procesal penal, concordado y anotado con la jurisprudencia constitucional incluye exposición de motivos; incluye Exposición de Motivos por César Barrientos Pellicer, Editorial F&G Editores, 2003

6.5 Newspapers

 

6.6 Participation in International Organizations

International organization participation: BCIE, CACM, FAO, G-24, G-77, IADB, IAEA, IBRD, ICAO, ICFTU, ICRM, IDA, IFAD, IFC, IFRCS, IHO, ILO, IMF, IMO, Interpol, IOC, IOM, ISO (correspondent), ITU, LAES, LAIA (observer), NAM, OAS, OPANAL, OPCW, PCA, RG, UN, UNCTAD, UNESCO, UNIDO, UPU, WCL, WCO, WFTU, WHO, WIPO, WMO, WTO, UN-WTO

 

 



[1] The Spanish term for this constitutional guarantee is “exhibición personal” which means bodily presence.

[2] “Amparo” has no equivalent translation but it can basically be described as a writ of constitutional protection for individual rights.

[3] Article 266.-Unconstitutionality of the laws in concrete cases.  In concrete cases, in any procedure concerning any competence or jurisdiction, at any instance and in Cassation and even before a final ruling, the parties can present the total or partial unconstitutionality of a law in the form of an action, preliminary exception or incident.

[4] Article 267.-General unconstitutionality of the laws.  Actions against laws, ministerial agreements or general rules that contain a partial or general unconstitutionality shall be submitted directly before the Constitutional Court.

[5] The PCR abides by the principle of constitutional supremacy whereby any law, governmental resolution, treaty or provision of any nature is ipso jure null and void if it contradicts, restricts or diminishes the constitutional text.  Thus, the hierarchy of the Constitution is above any law, governmental resolution, provision of any nature, including treaties.  See also article: 9 of the Judicial Branch Law, 423 of the Criminal Code, 29 of the Criminal Procedure Code; 12 of the Labor Code.

[6] Article 263.-Habeas Corpus.  A person has a right to be presented before a court when illegally imprisoned, detained or in any fashion restrained from personal freedom, threatened by losing it or suffers injuries even when the arrest is lawful, for the purpose of being immediately released or making the injuries or coercion cease.

[7] Article 265.-Admissiblity of the amparo.  The amparo is established with the purpose of protecting persons against threats of violations of their rights or to restore them upon the occurrence of a violation.  There is no area, which is not subject to amparo, and it shall always proceed as long as the acts, resolutions or rules of the authority imply a threat, restriction or violation of the rights guaranteed by the laws and the Constitution.

[8] The emphatic note on “the law or application” of the law is because these procedures require an arbitrary act, but the unconstitutionality in concrete cases refers to the constitutionality of laws.  Therefore it is through the application of a law in which an authority bases its act or decision that an infringement of constitutional right is derived.  Not deriving directly from the act per se.

[9] Although it is classified as a constitutional law, according to Guatemalan legislation, it does not have a constitutional ranking over ordinary laws, but is simply considered an ordinary law with a strict amending process due to its special content.

[10] In the diffuse system or American system the power to determine the constitutionality of the laws does not only correspond to one court [the Supreme Court] but also to various state courts which also measure state laws and official actions.

[11] The centralized system or European tends to combine the concept of constitutional supremacy with the monopoly of constitutional authority through specialized constitutional courts with exclusive jurisdiction.

[12] Article 272 subsection c) and d) of the PCR.

[13] Two-thirds.  

[14] Articles: 44, 175, 204 of the PCR; 9 of the Judicial Branch Law.  See also 423 of the Criminal Code; 29 of the Criminal Procedure Code; 12 of the Labor Code.

[15] Articles 44, 175 and 204 enunciate the principle of constitutional supremacy over any law, treaty, governmental resolution or provision of any nature.

[16]a) International conventions and treaties; b)International custom; General principles of law recognized by civilized nations; and d) As a subsidiary means, judicial decisions and the teachings of the most highly qualified publicists. Guatemala is a member of the United Nations and accepted the UN Charter and the ICJ Statute on 21 November 1945.

[17] Jurisprudential Review of the CC No. 19, page No.9, file 320-90 judgment of January 8, 1991.

[18] Jurisprudential Review of the CC No. 59, file No. 482-98, page No. 696, judgment of November 4 1998;

  Jurisprudential Review of the CC No. 19, file No. 324-90, page No. 23, judgment of January 8 1991.

[19] Enacted as decree 55-96 by the Congress of the Republic on 6/26/96; Ratified 5/14/97; Deposited 6/21/97; Published 8/27/98.  In force as of 6/21/97.

[20] 191 “d)” of the PCR.

[21] Article 38 of the Executive Branch Law decree number 114-97 of Congress.   

[22] Article 40 of the Executive Branch Law decree number 114-97 of Congress.   

[23] Article 39 f. of the Executive Branch Law decree number 114-97 of Congress.

[24] Article 32 c., d. of the Executive Branch Law decree number 114-97 of Congress.

[25] Article 171 of the PCR.

[26] This section deserves special mention since it refers to an incomplete version of the exact norm corresponding to article 170 (13) contained in the previous 1965 Constitution.  Back then approval was required when the treaty affected laws passed with 2/3 of votes. In the present version of article 171 the number of majority votes has been omitted turning inapplicable within the current legislation.

[27] Article 9 of the Judicial Branch Law decree number 2-89 of Congress.

[28] Decree number 67-95 of Congress. Published on November 17 1995 in the Official Gazette.

[29] Decree number 9-98 of Congress. Published on March 3, 1998 in the Official Gazette.

[30] Multilateral Treaty of Free Trade and Central American Economic Integration. Signed on June 10, 1958. Chapter VI. Investments. Article XVII: “Each of the Party members, acting within the realm of their respective constitutional provisions, shall grant National Treatment to the capital investments of the investors of other states and the right to establish and manage either mercantile or financial productive enterprises, and participate in them. In addition each state shall grant fair and non-discriminatory treatment to the transfer of profits from investments belonging to the nationals of the other members”

[31] At the moment this article was prepared Guatemala had not yet ratified CAFTA.

[32] According to article 1 of the Expropriation Law social benefit or public interest is understood as anything that would tend to satisfy a collective need, whether material or spiritual.

[33] Decree number 529 of the Congress of the Republic of Guatemala. Published on September 09, 1948 in the Official Gazette.

[34] Article 32 of the Expropriation Law.

[35] Guatemala is a member of the Multilateral Investment Guarantee Agency (MIGA) of the World Bank.