UPDATE: Guide to Legal Research in Guatemala
By Ana Cristina Rodríguez Pineda
Ana Cristina Rodríguez Pineda obtained her degree as Attorney at law and Notary Public from Universidad Francisco Marroquín in Guatemala. She also obtained an LL.M. degree from Columbia University School of Law in New York, and is qualified to practice law both in Guatemala and in New York. Currently she is Counsellor at the Permanent Mission of Guatemala to the United Nations serving as Deputy Political Coordinator and Legal Adviser.
Published May 2012
(Previously updated on May 2009)
Table of Contents
2.1. Constitutional Law
3.1. The Executive 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
6.3. Law Schools
Guatemala is located in Central America; it is bordered by 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 km. It has a population of approximately 14 million people. The capital is Guatemala City with approximately 3 million people. The official language is Spanish, but it also has 22 Mayan languages, as 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 was a Spanish colony.
Guatemala gained independence from Spain on September 15, 1821; it briefly became part of the Mexican Empire, and then for a period belonged to a federation called the United Provinces of Central America. From the mid-19th century until the mid-1980s, the country passed through a series of dictatorships, insurgencies, coups, and stretches of military rule with only occasional periods of representative government.
In the 1960s insurgencies against the Government led to a civil war in which 40,000 to 50,000 people were disappeared, approximately 200,000 were killed and tens of thousands were displaced. 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.
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 has been 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: recognizes and protects the fundamental rights and liberties of its nationals;
b) Organic: establishes the basic structure of the national government, the three branches, and enumerates their powers;
c) Procedural: sets forth proceedings and safeguards used to enforce and protect the rights and liberties recognized in the Constitution.
The fundamental rights and liberties contained in the PCR are found in articles 1 to 46. Article 2 provides it is the duty of the State to guarantee freedom, justice, security, peace and integral development of the person. Article 3 affirms the State guarantees and protects human life since its conception, as well as the person’s integrity and security. Guatemala is also party to the core international human rights treaties, see Section 6.4 below.
In exceptional cases, the death penalty is permitted. Article 18 of the PCR stipulates the death penalty shall not be applied based on presumptions, to women, persons over sixty, detainees convicted for political crimes or detainees whose extradition was granted on that condition. The Guatemalan Criminal Code decree 17-73 of Congress prescribes the crimes to which the death penalty may be applied.
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 [] that guarantees the right to personal freedom, and the other the writ of amparo [] that protects the rest of fundamental rights from arbitrary governmental acts.
Regarding the first, that is procedures concerned with constitutional supremacy, articles 266[] and 267 [] 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.[]
The two remaining procedures, concerned with the protection of individual fundamental rights, are governed by articles 263[] and 265 [] 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 by invoking either an injury or a threat of an injury to individual rights as guaranteed in the PCR. An injury occurs when 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. []
Constitutional Law in Guatemala is not only governed by the PCR but also by the “Ley de Amparo, Exhibicion Personal y de Constitucionalidad” (hereinafter 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. []
Guatemala’s Constitutional Court was 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 regard 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 Law on Constitutional Protection and Actions also contains provisions from articles 150 to 189. The Court is composed of five justices serving a five-year term, each with a corresponding alternate. This Court is independent and does not form part of the Judicial Branch.
Regarding judicial review, Guatemala follows a mixed or hybrid judicial review system that combines the diffused system [] 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. However, 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. [] Although judges can exercise judicial review in concrete cases (either through amparo or an unconstitutionality), on appeal the Constitutional Court has exclusive jurisdiction. []
The Court also has advisory jurisdiction available to the three Branches, which is governed in articles 171 to 177. Advisory opinions are non-binding and concern only matters under the Court’s purview.
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.
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. Simple majority is required otherwise, there is a second round. 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, whereby in accordance with the PCR the Vice-President is entitled to exercise most of the powers of the President.
A very important provision in the PCR that contains limitations on access to the Presidency or Vice-presidency of the Republic, banning reelection to the presidency and vice-presidency has been the object of many constitutional actions and advisory opinions, particularly what is provided in the first three literals of Article 186: The following may not hold this office: “a) The leader and chiefs of any coup d'etat, armed revolution or similar movement that changes the constitutional order, nor those who become head of the government as a result of such actions; b) Incumbents holding office of President or Vice-President during the time when elections take place; c) The blood relatives in the fourth degree and legal relatives in the second degree of the President or Vice-President including of those referred to in the first literal.”
Ministers of State are appointed and discharged by the President of the Republic as are the respective deputy ministers. There are thirteen Ministries in the current structure of the government, the most recent one being the Ministry of Social Development created in 2012.
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 ranking as Ministers of State.
The Council of Ministers is the main body within the Executive Branch. It is composed of the President, the Vice-President, the Ministers and Vice-ministers of State. The legal basis for the powers and functions of this Branch, in addition to the PCR, is the Law of the Executive Branch, decree 114-97 of Congress.
The Guatemalan legislative system is unicameral composed of 158 members. 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 at least one congressman, subject to the number of inhabitants per district. In addition, each district elects an alternate congressman.
The Congress of the Republic divides the items on its agenda through working committees. They constitute technical bodies, which can be ordinary, extraordinary or specific with a view to examining and studying bills and proposals.
The Legislative Branch is governed by the Legislative Branch Law, decree 63-94 of Congress. Articles 21 to 45 of the Legislative Branch Law elaborate on their composition and functioning of the working committees.
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.
According to Article 58 of the Judicial Branch Law jurisdiction is indivisible. The following is a general description of the Guatemalan court system:
a) Minor or Peace courts: 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) Child and Adolescence courts and for Adolescents in conflict with Criminal Law and oversight in the implementation of measures.
c) First instance courts: They judge first tier cases in civil, commercial, criminal, labor and family matters.
d) Courts of Appeals: Presented with the appeals cases from the first instance. It also hears some matters coming under their exclusive jurisdiction.
e) Division of Child and Adolescence
f) Contentious Administrative Tribunal
g) Appellate Court of Accounts
h) Supreme Court of Justice and its Chambers: It is the highest court in the Republic composed of 13 justices. It is divided into chambers.
i) Any other established by 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. Autonomous decentralized state organs 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.
settlement of disputes within the administrative realm, remedies must be
exhausted before a case can be presented to a judge. In that case, the
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.
With a view of enhancing transparency within the public administration, Guatemala has a Law of Access to Public Information issued under decree number 57-2008 of Congress to protect and guarantee the right of all interested persons to become aware of, request and have access to all existing information related to their person in the public records.
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. Their legal basis is the PCR.
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.
In 2007, the International Commission against Impunity in Guatemala (CICIG) was established under an agreement between the UN and the Guatemalan Government that came into effect on 4 September 2007. CICIG is an independent, non-UN body, with a mandate to conduct its own investigations and also help local institutions, particularly the Office of the Public Prosecutor to eradicate illegal armed groups and clandestine security organizations. It can also act as a complementary prosecutor to help bring high-profile cases to trial before the national courts, recommend laws and policies, and enter into cooperation agreements to carry out its full mandate. CICIG has a two-year mandate, which has been extended on two occasions since 2009; its current mandate expires on 3 September 2013.
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. Duties of the Attorney General 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 Ombudsman has the main responsibility of investigating allegations of human rights violations and promoting efficiency and management in the area of human rights. The Ombudsman is appointed for five years. Guatemala has a national human rights committee composed of congressmen representing the different political parties. The Ombudsman is part of this committee and presents an annual report on human rights through the aforementioned committee.
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. Custom can only be invoked in the absence of an applicable law insofar it is not contrary to morals or public order and is duly proven.
Guatemala is a civil law jurisdiction in which legislation is considered 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. Unless otherwise provided, the entry into force of every law is 8 days from the moment of its publication in the Official Gazette.
The process for enacting laws requires a presentation of a bill and three readings by Congress in three separate sessions. Then the bill is passed to the Executive Branch for signature and publication. After 15 days, the law is passed as long as 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, then the veto 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 of Congress. This procedure is exceptional and used only for bills considered a matter of national emergency.
The general rule is that laws passed by Congress require the vote of an absolute majority. However, 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. [] These cases pertain to the approval of treaties, conventions or other international arrangements:
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:
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 internal law”.
Concerning the scope of the expression “internal 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.[] Thus, the Constitution is above any law, governmental resolution, or 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. Article 3 of the Law on Constitutional Protection and Actions is clearer in that sense stating as follows: “The Constitution prevails over any law or treaty. Notwithstanding, in the matter of human rights, treaties and conventions accepted an ratified by Guatemala prevail over internal law.”
The Constitutional Court, or 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. []
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 which favors and benefits Guatemalan nationals the most. 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 decree and even any other subject-matter treaty in the event of a legal conflict.
Notwithstanding that 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 rights.
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, or ICJ, confers a guide on how the legal quality of alleged rules of international law are assessed. Guatemala recognizes the additional sources spelled out in article 38.[] 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. It should also be noted that Guatemala has made a declaration recognizing as compulsory the jurisdiction of the ICJ for a specified period of time, which is now expired.
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 govern 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.[] 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 […].[]
Guatemala has ratified the Vienna Convention on the Law of Treaties of 23 May 1969, or VCLT, in 1997.[] 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. In 2007, Guatemala withdrew the rest of its reservations to the VCLT, these related to articles 11 and 12, maintaining solely its reservation to article 27.
Although this issue was clarified after Guatemala’s ratification to said treaty, uncertainty still rests regarding the regulation prior 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.
The President of the Republic in his capacity as Head 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, and 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. []
Some Ministries of State also have treaty-related powers. According to the Executive Branch Law, the following Ministries are charged with:
a) The Ministry of Foreign Affairs: Coordinate, analyze, support and follow up on 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. []
b) The Ministry of Labor: In coordination with the Ministry of Foreign Affairs, represent the State before international organizations related to the affairs of its competency and in the processes of negotiation on the international convents on labor, as well as the application of those that are in force.[]
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. []
d) The Ministry of Economics: Conducting, under the delegation of the President, negotiations on 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. []
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 does not need to pass through Congress. The approval of Congress before the ratification of a treaty, convention or any other international agreement is required when: []
a) A law in force that requires the same majority of votes as this Constitution is affected. []
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.
In section 4.1 above a reference was made to Article 172 of the PCR enumerating the cases in which a two-thirds majority by Congress is required to approve treaties, conventions or other international arrangements, these refer to the passage of foreign military troops through the national territory, the temporary establishment of foreign military bases or could concern the security of the State or end a state of war.
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. [] The latter means that any judgment issued by the national courts of Guatemala must observe the principle of constitutional supremacy.
The approach of a particular state to international law will be characterized by that state’s attitude to and reception of international law – an attitude that 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 as 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.
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) which set 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.
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. [] 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. []
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 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 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.[]
In 2005, Guatemala, along with the rest of Central America, the Dominican Republic, and the United States concluded negotiations on the Central American-Dominican Republic Free Trade Agreement (DR-CAFTA). This agreement entered into force in Guatemala on July 1, 2006. One of the most significant chapters arising from the DR-CAFTA is Chapter 10 on Foreign Direct Investment. It therefore represents 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.
In 2008, Guatemala enacted a new Secured Transactions Law (Ley de Garantías Mobiliarias), creating new forms of pledges over movable assets and a modern registry for the pledges. Under the new law, accounts receivable and inventory may be described in general terms when used as collateral and parties may agree to out-of-court enforcement of the security right at the time the security interest is created. The Law is governed by decrees number 51-2007 and 46-2008, both of the Congress of the Republic. The new registry only opened to the public on January 2, 2009 and is now fully operational.
Another important step forward in Guatemala is the new Electronic Communications and Signatures Recognition Law contained in decree number 47-2008 of the Congress of the Republic. With this law, both national and international transactions by electronic means are provided with legal validity and certainty.
The Guatemalan Constitution contemplates expropriations in cases of collective use, social benefit or public interest duly justified. [] 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 [] 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.[] 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 whether it should 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 for any negligence or lack of integrity, which they may incur. []
A question still remains as to 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 disparity between these two values result, then one could probably make a claim regarding this difference, but it is very unlikely that the disparity will be highly 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. In addition, 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.
Other State organs
6.3 Law Schools
The main databases in Guatemala for access to legal documents and legislation are the ones indicated below. Unfortunately, not all of them are free. The website of the Congress of the Republic also contains all the enacted decrees published in the Official Gazette, which can be found according to number and date of publication.
Participation Status of Guatemala in Treaties
The following links are quite useful and up-to-date, the first being a database of the Ministry of Foreign Affairs categorized by agreements, conventions, treaties, and protocols. The second provides the status of participation (signature, accession, acceptance, consent to be bound, or ratification) of all Member States of the United Nations concerning all multilateral instruments that have been deposited with the Secretary-General. In this case, treaties are categorized by chapters, and please note that if Guatemala does not appear in a status chart of a particular instrument, it is because it has not yet taken any action to that effect. The website of the Organization of American States is also a relevant link containing a database with Inter-American multilateral treaties and bilateral agreements.
Guatemala is party to the following major multilateral treaties:
Charter of the United Nations ratified 21 Nov 1945; Convention on the Privileges and Immunities of the United Nations acceded 7 Jul 1947; Vienna Convention on Diplomatic Relations ratified 1 Oct 1963; Vienna Convention on Consular Relations acceded 9 Feb 1973; Convention on the Prevention and Punishment of the Crime of Genocide ratified 13 Jan 1950; International Convention on the Elimination of All Forms of Racial Discrimination ratified 18 Jan 1983; International Covenant on Civil and Political Rights acceded 5 May 1992; International Covenant on Economic, Social and Cultural Rights acceded 19 May 1988; International Convention on the Suppression and Punishment of the Crime of Apartheid acceded 15 Jan 2005; Convention on the Elimination of All Forms of Discrimination against Women ratified 18 Aug 1982; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment acceded 5 Jan 1990; Convention on the Rights of the Child ratified 6 Jun 1990; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families ratified 14 Mar 2003; Convention on the Rights of Persons with Disabilities ratified 7 Apr 2009; Convention relating to the Status of Refugees acceded 22 Nov 1983; Single Convention on Narcotic Drugs, 1961 ratified 1 Dec 1967; United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ratified 28 Feb 1991; Rome Statute of the International Criminal Court acceded 2 Apr 2012; International Convention Against the Taking of Hostages ratified 11 Mar 1983; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents ratified 18 Jan 1983; Convention on the Safety of United Nations and Associated Personnel acceded 23 Sep 2008; International Convention for the Suppression of Terrorist Bombings acceded 12 Feb 2002; International Convention for the Suppression of the Financing of Terrorism ratified 12 Feb 2002; United Nations Convention against Transnational Organized Crime ratified 25 Sep 2003; United Nations Convention against Corruption ratified 3 Nov 2006; United Nations Convention on the Law of the Sea ratified 11 Feb 1997; Vienna Convention on the Law of Treaties ratified 21 Jul 1997; Convention on the Recognition and Enforcement of Foreign Arbitral Awards acceded 21 Mar 1984; United Nations Framework Convention on Climate Change ratified 15 Dec 1995.
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.
The Judicial Branch through the National Center of Analysis and Judicial Documentation (CENADOJ) has produced a complete collection of books and CD-ROMS pertaining to case-law (1972-2004), as well as Guatemalan laws. In addition, on-line services (paid) are also available by CENADOJ with access to the Supreme Court and a tracking system of current cases submitted before the courts. See the Judicial Branch website above.
The Constitutional Court has also compiled its case-law, which is available in hardcopy and CD-ROM. The rulings of general constitutional actions declaring the unconstitutionality of laws and the advisory opinions of the Court are both published in the Official Gazette. Opus Magna Constitucional Guatemalteco is a periodical containing comprehensive articles and commentaries on constitutional justice in Guatemala. So far four volumes have been issued.
The compilation Prontuario Tributario de Leyes de Guatemala is a CD-ROM containing the main Guatemalan tax laws.
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.
A legal compilation book used by law students and professionals is the “Biblia Jurídica” which includes principal laws such as the Civil Code, Commercial Code, Civil and Commercial Procedure Code, Criminal Code, Notarial Code, Criminal Procedure Code, Labor Code, and Military Code, among others.
The following books are general references to specific subject matters of law published by renowned jurists in Guatemala:
International and Regional Organizations: BCIE, CACM, FAO, 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, SIECA, SICA, UN, UNCTAD, UNESCO, UNIDO, UPU, WCL, WCO, WFTU, WHO, WIPO, WMO, WTO, UN-WTO. Regional Groups: Group of Twenty-Four on International Monetary Affairs and Development (G-24), Group of Seventy-Seven and China (G-77), Non-Aligned Movement (NAM), Rio Group.
Currently Guatemala is a non-permanent Member of the Security Council for the biennium 2012-2014. Although Guatemala is a founding member of the United Nations this is the first time it is a Member of the Security Council.
[] 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.
[] 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.
[] 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.
[] 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.
[] 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.
[] 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.
[] 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.
[] 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.
[] 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.
[] Articles: 44, 175, 204 of the PCR; 9 of the Judicial Branch Law and Article 3 of the Law on Constitutional Protection and Actions. See also 423 of the Criminal Code; 29 of the Criminal Procedure Code; 12 of the Labor Code.
[]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.
Jurisprudential Review of the CC No. 19, file No. 324-90, page No. 23, judgment of January 8 1991.
[] 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.
[] 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”