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18/05/2022
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Judicial decisions are not discussed, they are obeyed, but what matters the Constitutional Court considers, is debatable

With each new magistracy, the Court has become more and more involved in matters of political significance that do not deserve to be decided by the highest court. In addition to this, the Constitutional Court has  maintained for some time the criterion that active legitimation - the possibility of  someone filing an amparo action - no longer falls only on those who are directly  affected by a decision of the public power, but hat it has been allowed that anyone has legitimation.

Alejandro Palmieri
25 de abril, 2022

Now that there’s a discussion about the provisional ruling (amparo) granted by the Constitutional Court (CC) ordering the Postulation Commission to elect attorney general to complete the list of 6 candidates using "meritocratic" criteria, it’s appropriate to recall some other cases in which, through similar rulings (amparos), matters of all kinds have been decided.

In those cases, almost all favorable to socialist or anti-system people and organizations, the vast majority of the media and journalists, as well as activists and civil society actors applauded that, through amparo, all these issues were decided because it benefited them. In all those cases, they said again and again: "judicial decisions are not discussed, they are complied with" or similar phrases. Now that the current Court rules as did previous courts, but in another way (a way they don’t like) those who used to say that, now discuss, and oppose the resolution and even called for not abiding it. They showed the double standards they apply, the double standards they have.

Amparo emerges as a mechanism for protecting citizens from power and its possible abuse, but amparo has been used to reverse all kinds of decisions. Thus, many cases can be mentioned where, by amparo, different matters have been decided improperly.

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Claudia Paz y Paz became Attorney General via amparo; Erika Aifán got appointed judge of first instance through amparo; the Constitutional Court interfered in foreign policy decisions that fall within the exclusive competence of the executive branch and prevented Iván Velásquez from being expelled from the country; Lucrecia Hernández Mack managed to assume as a congresswoman despite not having a document exonerating her from charges from a previous post required by law, because she obtained a provisional amparo in her favor; after the process of Postulation Commission for magistrates of the Supreme Court and Courts of Appeal was carried out, via an amparo the process was stopped and the Court ordered the Legislative Branch how and whom to choose and, therefore, the courts have not been renewed in more than two years; the election of magistrates by the Bar Association was repeated because the CC issued an amparo to favor a candidate who had not reached enough votes to go to the second round; the law regulating Inacif indicates that to be its general director one must have a specialty in criminalistics, but via an amparo, Fanuel García was appointed; he did not have such a specialty but was close to a former magistrate of the CC; Jordán Rodas became Human Rights Ombudsman after a preliminary trial was stopped against him by amparo; via amparo the pretrial of an endless number of judges and magistrates were stopped, such is the case of Ranulfo Rojas of the Supreme Electoral Tribunal, but also against Miguel Ángel Gálvez and Erika Aifán; after a legal battle that was defined by amparo, Edgar Balsells arrived at the Board of Directors of the Guatemalan Institute of Social Security; through an amparo the entry into force of the regulations that eliminated the obligation to make publications of edicts on paper was stopped, thus benefiting a particular newspaper; through amparos the legislative process has been stopped although it is the exclusive power of Congress of the Republic, and illegally, the CC has ordered that certain matters cannot even be discussed.

The above mentioned are only some of the most notorious cases, but there are many more in which, via amparo, things that are not constitutional matter are decided, thus abandoning the essential function of that protection.

From the conception of the Constitutional Court and its inclusion in the constitution of 1985, its role has been increasingly decisive, not only legal, but political life in Guatemala. Probably from 1993 when that second magistracy resolved that Congress should elect new president and vice president after Jorge Serrano gave a "self-coup" and the CC marked the route that the country should follow is that the Court, little by little, takes roles and interferes in matters that although they require solution, they should not be a matter for a constitutional court to rule upon, rather to be resolved by ordinary mechanisms or politically.

The years of dictatorship undoubtedly contributed the excessive competence in matters of amparo and made the constitutional legislators establish that "there is no area that is not susceptible to amparo." In the end, this phrase of the Amparo Law has resulted in every matter, whether of ordinary jurisdiction and of any matters (civil, criminal, labor, etc.) or administrative and / or political, to be decided eventually by the Constitutional Court. The cases that come to the attention of the CC increase every year; that is because the Court has interfered in matters that it should not.

One factor has been the voracious power appetite of some of those who have been magistrates and their foray into political matters; with each new magistracy, the Court has become more and more involved in matters of political significance that do not deserve to be decided by the highest court. In addition to this, the CC has maintained for some time the criterion that active legitimation - the possibility of someone filing an amparo action - no longer falls only on those who are directly affected by a decision of the public power (as prescribed by the Amparo Law) but that it has been allowed that anyone has legitimation and, therefore, amparos are

filed by whoever wants on any matter. This cannot continue and that requires that the lawyers' guild stop using and abusing the amparo for all matters. Whether it is due to legal reform or self-conviction remains to be seen, but we must put an end to the abuse of amparo.

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