International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2015 Issue



The Guatemalan Judicial System

Eduardo Calderón
By: Eduardo Calderón


According to Article 203 of the Guatemalan Constitution the Supreme Court is the highest judicial body of the country and every other lower court falls under its authority.  Article 205 affirms that functional independence, financial independence, irremovability of judges and magistrates and the selection of its own personnel are guarantees of the judicial branch. However, as will be seen, there is much to be done in order to have those guarantees become a reality. 

Apart from the Constitution itself, there are two laws that regulate the selection process for lower judges and for magistrates.   Therefore, three different documents regulate the same topic. 

The first way in which a person can be elected as a judge is through the process established in the statute of the judicial career (Ley de la Carrera Judicial).  The second way is through the statute that regulates the nominating commissions  (Ley de Comisiones de Postulación). 

1. Appointing judges: the nominating commissions and the judicial career

Regarding the nominating commissions, the process was introduced in the 1985 Constitution –and regulated in more depth by statute in 2009 -as a way to depoliticize the selection of magistrates by commissioning to a group of nonrelated professionals and academics the preparation of a list of individuals who would comply with the requirements to be a magistrate. For the 2014 appointments, the nominating commission was integrated by one representative of the presidents of all universities and the dean of every law school (11 deans in total).  In addition, there is an equal number of representatives of judges and representatives from the Guatemalan Bar Association relative to that of the number of deans (22 in total).  The system, therefore, put in place a group of 34 members that had the responsibility of selecting a short list of candidates of the Supreme Court and appellate bodies, to be be sent to Congress for the final appointment of the magistrates.

While in paper the idea behind the selection process via a group of individuals representing (1) higher education institutions, (2) fellow judges and (3) members of the Bar Association would appear to be a proper way of choosing candidates with the highest moral and professional qualities, in reality the commissions have been politicized by the exact same sectors that were supposed to be outside the scope of political and/or ideological pressures. For example, every dean of every law school is represented and has a vote. However new universities and law schools have emerged.  One of those law schools, had no students as of 2014 but had a voting dean in the nominating commission.  

Regarding the judicial career process, the mechanism came into force in 2000. It aims to have individuals with the highest degree of knowledge and reliability in the judiciary by creating a system of opposition, thus assuring that only the best professionals are selected.  However, the statute does not apply to Supreme Court magistrates, thus making it a barrier in itself, because a carreer judge cannot aspire to the highest court, while at the same time, a person with no experience in the judiciary   could   be   a    Supreme    Court   magistrate.


Normally, the fact that a person has never been a judge does not mean that he or she is not capable of becoming a good magistrate.  In some cases it might even be desirable.  However, it illustrates the lack of consistency in the entire process.

2. Other challenges

There is a manifest lack of stability since judges occupy their seats for fixed periods of only five years. This creates discomfort among current judges and is also a negative incentive for citizens interested in becoming judges since after only five years they might find themselves jobless.  Also, this has a negative impact on the independence of the judges because their decision-making capacity is compromised by this five year constraint. 

In addition, another aspect that is often overlooked but that affects the adminsitration of justice is the lack of resources derived from budgetary constraints.  Under article 213 of the Constitution, of the entire State’s General Ordinary Revenues Budget only 2% is allocated to the judicial branch.  To put that percentage into perspective, the public university -Universidad de San Carlos- receives 5% of the total budget while 3% is destined to sports, whether federated and unfederated, as well as leisure and school sports.  However important sport and health might be in a society, it is difficult to argue that they should have more financial support than the entire judicial branch.   

There is another variable to consider when analyzing the Guatemalan justice system. This variable is the existence of a Constitutional Court that, in reality, has surpassed the Supreme Court in importance and whose decisions cause the greatest legal and political impact in the country.  The Constitutional Court is an independent and permanent tribunal of exclusive jurisdiction.  Article 268 of the Constitution establishes that it is not a part of the judicial branch but its budget derives from the revenues that correspond to the judicial organism.  The Constitutional Court is not a part of the judicial branch because its main function is the defense of the constitutional order. Thus its subject matter jurisdiction is of a different nature and should not be mixed with regular problems that are litigated in ordinary courts.

Litigation that involves political aspects and even cases that are not of a political nature find a way to reach the Constitutional Court. Thus the Constitutional Court is becoming the country’s real highest tribunal.  The Supreme Court is not really supreme if, for example, every appeal in an amparo procedure (a form of constitutional relief found in the legal systems of some countries) is to be resolved by the Constitutional Court, not the Supreme Court.  

3. Conclusion

Broadly speaking, the Guatemalan judicial system is complex, slow, highly politicized and, for the most part, inefficient. But all is not lost.  The process for the election of Supreme Court magistrates, appellate magistrates and ordinary judges in late 2014 showcased many of those problems and reform actions might be undertaken. It is clear to the expert and the layman that the judicial system is in need of reform. However, it is difficult to predict when and to what extent the necessary reforms could reach.  2015 is an electoral year and political issues are expected to dominate the local environment. In that sense, the two most important institutions are likely to be the Supreme Electoral Tribunal and, once again, the Constitutional Court, not the Supreme Court.    

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2015 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at