GUATEMALA: CONSTITUTIONAL COURT HAS BROAD IMPACT

UNCLAS GUATEMALA 001187

SIPDIS

SIPDIS
SENSITIVE

E.O. 12958: N/A
TAGS: PGOV KJUS ETRD EAID SNAR GT
SUBJECT: GUATEMALA: CONSTITUTIONAL COURT HAS BROAD IMPACT
ON GUATEMALAN SOCIETY



1. (SBU) Summary: Guatemala's Constitutional Court has a
broad mandate to weigh in on political and social issues.
The newly-elected court includes some notable legal scholars.
The new court portends to be less partisan and more
independent than previous courts. End Summary.


2. (U) The primary responsibility of Guatemala's
Constitutional Court (CC) is to interpret the 1985
Constitution. Separate from the CC is the Guatemalan Supreme
Court (CSJ),which supervises and administers the criminal
and civil justice system. The president of the CSJ is
considered the head of the judicial branch, but CSJ decisions
are appealed to the CC, and vice versa, which sometimes makes
it difficult to say who will have the last word on any given
issue. The Constitutional Court is independent from other
branches of government and is the ultimate arbiter of
challenges to the constitutionality of laws. It has
jurisdiction over legal challenges presented against the
Guatemalan Congress, Supreme Court, or executive branch.
Finally, the CC has the last word on international treaties
and agreements. Much of its workload consists of hearing all
appeals of court rulings on the much-abused injunctions
("amparos").


3. (U) The Court has five judges, each with an alternate,
for a total of 10 justices, all of whom serve five year
terms. Each judge and corresponding alternate is elected by
different entity, namely the executive branch, Congress,
Supreme Court, National University (University of San
Carlos),and the Guatemalan Bar Association. Each entity has
its own rules for selection of justices. On constitutional
questions, decisions are reached by seven judges, usually the
five principal judges and two more selected by random drawing
from among the five alternate judges.


4. (U) The current justices assumed their positions in April
2006; this is the fifth court to be seated since it was
established following the transition to democracy in 1985.
The president of the current court is Alejandro Maldonado,
one of Guatemala's most prominent and experienced
politicians. Maldonado, the congressional nominee, has
served as an ambassador overseas, as cabinet minister, and as
congressman. The executive branch appointed widely respected
constitutional expert (and former Solicitor General) Roberto
Molina, while the Supreme Court nominated Gladys Chacon, the
only woman justice. The University of San Carlos elected law
professor Mario Perez and the Bar Association reconfirmed
Justice Francisco Flores for a consecutive term as justice.
Maldonado and Molina are well-known to the Embassy.


5. (SBU) The CC's broad mandate and the down-in-the-weeds
details of the 70-page Constitution (which has over 280
articles, some of them with up to twenty subparagraphs) have
allowed the Constitutional Court in recent years to weigh in
on a broad range of policy issues ranging from taxation
authority and electricity rates to payments for former
members of civil defense patrols. One of the areas that
affects U.S. interests is extradition, where the
Constitutional Court can be a venue for appeals and dilatory
tactics. The court also has pending two challenges to CAFTA,
presented by the national university and a coalition of NGOs.
The university's objection to CAFTA is procedural, alleging
that the government should have submitted CAFTA to a
referendum. The NGO challenge is substantive, alleging that
CAFTA does not meet the government's constitutional
obligation to pursue economic and trade policies advantageous
to the Guatemalan people. The two challenges are considered
to be specious, and neither is expected to prosper.


6. (SBU) The court is also available for consultation and
review, even without a formal legal challenge. In August
2004, the court (at the government's request) issued an
opinion that derailed a previous iteration of CICIACS, the
GOG-UN agreement to create an international team to
investigate clandestine criminal groups. As the court had
interpreted several aspects of the CICIACS agreement to be
unconstitutional, President Berger's advisors spent 18 months
revising the draft. Believing that they have addressed the
unconstitutionalities, Vice President Stein and Human Rights
Commissioner Frank LaRue have said they intend to send the
current version to the court for a new opinion, once they get
the UN's agreement in principle.


7. (SBU) The Constitutional Court's most notable decision
occurred in May 1993 when it ruled against then-President
Serrano's attempt to stage a Fujimori-style "auto-coup." The
court has issued several rulings on the presidential
eligibility of former dictator Efrain Rios Montt, ruling him
ineligible in 1990 and 1995 before deciding in 2003 that he
was an eligible presidential candidate. The new court
recently struck down a pension law for senior citizens. The

court has on its docket the politically sensitive challenge
by former President Cerezo to the constitutional provision
that forbids presidential reelection. A ruling in favor of
Cerezo would also open the door to a bid by former president
Alvaro Arzu, currently mayor of Guatemala City, who,
according to some polls and analysts could defeat the other
likely contenders.


8. (SBU) Comment: The Constitutional Court has earned a
reputation of being staffed with partisan justices who make
decisions based on political considerations rather than legal
merit. The new court president (Maldonado) and at least two
of his fellow justices (Molina and Flores) are viewed as
strong constitutional experts who are less likely to bend to
political influence.
Derham