By: Eduardo Calderón
Introduction
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.