CHAPTER I

POLITICAL AND REGULATORY SYSTEM

A. Political organization of the State of Guatemala

1. That country's current constitution was decreed by the National Constituent Assembly on September 15, 1965, and the Guatemalan state's political organization is based on its provisions. That state is conceived as “a free, sovereign, and independent nation, established for the purpose of guaranteeing to its inhabitants the enjoyment of freedom, security and justice.” Its system of government is defined as “republican, democratic and representative,” which “delegates its sovereignty to the legislative, executive and judicial branches, which are not subordinate one to the other.” It is further provided that “no person, group or entity may usurp the sovereignty of the nation.”1

2. The legislative power is vested in the Congress of the republic, which has the “legislative authority,” and which is composed of “deputies elected directly by the people, by universal suffrage.” The deputies are considered representatives of the nation and as such enjoy several prerrogatives.2

The powers of the Congress include that of electing the President and Vice President of the republic, by ballot, from the two candidates who have obtained the greatest number of votes in case there was no absolute majority of votes; receiving the oath of office from both officials and investing them with their offices; and withdrawing recognition from the President of the republic if, after his constitutional term has ended, he continues to hold the office. In such a case, the armed forces of the country shall automatically become subject to the authority of the President of the Congress. Moreover, the legislative branch has specifically listed powers, which include enacting, amending, and repealing legislation; and decreeing amnesty for political crimes and related common crimes when the public convenience so requires.3

The deputies in Congress, the executive organs acting through the ministry concerned with the subject matter, the Council of State, and, in matters within their cognizance, the Supreme Court of Justice and the University of San Carlos of Guatemala may initiate laws. “No law may be contrary to the provisions of the Constitution. Laws that violate or distort constitutional mandates are ipso jure null and void.”4

3. With regard to the executive branch, the Constitution established that the executive functions are exercised by the President of the republic “who represents the national unity, is the head of state, and shall always act together with his ministers, either assembled in council, or separately, with one or more of them. He coordinates the action of the executive branch.” The President of the republic is elected by the people, by universal suffrage, by an absolute majority of votes and for a term of four years, which may not be extended. It is also established that a person who at any time has held office as president of the republic by popular election, or who has held such office for more than two years as a replacement of an elected president, may not again hold such office for any reason; and that the reelection or prolongation of the term of the presidential office by any means is punishable under the law. It is added that any mandate so intended is null and void ipso jure. In cases of a temporary or absolute impediment of the President of the republic, he shall be replaced by the Vice President. In the first case, the President shall reassume his office ipso facto when the reason for the impediment has ended. If the impediment of the President is absolute, the Vice President shall occupy the presidency until the end of the constitutional term; and in the absolute impediment of both men, the term shall be completed by the person designated by an assembly composed of the Congress of the republic and the Council of State.5

The President's functions include that of observing and enforcing the Constitution and the laws; exercising command of the armed forces as commanding general of the army; approving, promulgating, executing and enforcing execution of the laws; issuing decrees within the powers granted by the Constitution, and issuing resolutions, regulations and orders for strict compliance with the laws without altering their spirit; participating in the making of laws by presenting bills to the Congress through the ministers of state; directing exclusively the international policy of the republic and concluding, ratifying, and denouncing international treaties, conventions, or agreements; commuting the death penalty to the immediately lesser penalty and granting pardons for political and related common offenses; seeing the strict compliance with the guiding principle set forth in the Constitution with respect to electoral and political matters and integrity of the suffrage.6

The President of the republic is responsible for his acts in accordance with the provisions of Article 145 of the Constitution and the provisions of the Law on Responsibilities. Article 145 establishes that public officials are the depositories of the authority, legally responsible for their official conduct, subject to law and never above the law, and that public officials and employees are in the service of the state and not of any political party, adding that the public function cannot be delegated except in those cases specified by law, and that it may not be exercised without first taking an oath of loyalty to the Constitution.

4. The structure of the executive branch, pursuant to the Constitution, includes the Vice President of the republic, who is elected on the same ballot with the President of the republic, in the same manner and for the same term. He may not be reelected to the same office nor elected president for the immediately following term. The state ministers have specific functions for handling the affairs of the executive branch, and it is provided that there shall be the number of ministers specified by law, with the powers and competence indicated therein.7

5. The Constitution established the Council of State, with the membership provided for in the basic text. This council also has specific advisory powers in channeling matters of the country, including the power to render opinions on bills and other matters submitted to it for study by the government branches.8

6. Moreover, the structure of the executive branch includes the army as the “institution designated to maintain the independence, sovereignty, and the honor of the nation, the integrity of its territory, and peace within the republic. It is one and indivisible, essentially nonpolitical and non deliberative; it is composed of land, sea, and air forces; its organization is hierarchical and is based on principles of discipline and obedience.” It further establishes that “the organizing or functioning of militias other than the army of Guatemala is punishable.” The army is governed by its constitutive law and by military laws and regulations.9

7. The functions of the public ministry are exercised by the Attorney General of the nation, who shall have such auxiliary agents and investigators as are specified by law. This official is appointed by the President of the republic by selecting from a panel proposed by the Council of State. The principal functions of the Attorney General include the following: to represent the state and defend its rights and interests, judicially or extrajudicially; to take such steps as may be necessary for the correct and prompt administration of justice and the investigation of crimes and violations that disturb the social or public order; and to represent and defend those persons specified by law.10

8. With regard to the judicial branch, it is established that justice is administered in accordance with the Constitution and the laws of the republic and that the authority to judge and to execute judgments rests with the courts of justice. It is further indicated that the other agencies on the state must offer the courts of justice any assistance that may be required to carry out their decisions.

The judicial functions are exercised exclusively by the Supreme Court of Justice and the other courts having ordinary or special jurisdiction. “The administration of justice is obligatory, gratuitous, and independent of the other functions of the state. It shall always be open to the public except when morals, the security of the state and the national interest demands security.”11

The President of the judiciary, the magistrates of the Supreme Court of Justice, of the Court of Appeals, of the Contentious-Administrative Courts, of the Court of Second Instance of Accounts and of the Court of Conflicts of Jurisdiction and their alternates, are elected by Congress for a term of four years. The Supreme Court of Justice consists of at least seven magistrates and may be divided into chambers whenever the administration of justice so requires. The president of the judicial branch is also President of the Supreme Court of Justice, and his authority in respect of the administration and discipline of the courts extends throughout the republic.12

The Guatemalan Constitution also governs the Court of Appeals, the Contentious-Administrative Courts, the Court of Second Instance of Accounts and the Court of Conflicts of Jurisdiction, as well as the Courts of Amparo and the Court of Constitutionality. The Court of Constitutionality is composed of twelve members and is presided over by the President of the Supreme Court of Justice. It is responsible for hearing appeals entered against laws or governmental orders of a general nature which contain the partial or total defect of being unconstitutional. An appeal on grounds of unconstitutionality may be entered by the Council of State, the Lawyers Association, the Public Ministry, or by any person or entity affected directly by the unconstitutionality of the law or government order challenged, with the assistance of ten practicing lawyers. No appeal of any kind may be entered against a decision of the Court of Constitutionality.13

It should be pointed out that the Guatemalan judicial organization includes the law on domestic tribunals contained in Decree Law Nº 206 of May 7, 1964. This legal provision establishes the domestic tribunals with exclusive jurisdiction to hear all family-related matters.14

B. Human rights in the Constitution of Guatemala

1. The Guatemalan constitutional system recognizes the essential rights inherent to mankind, established in the American Convention on Human Rights, to which the Guatemalan state is a party.

2. The human rights set forth in the current basic text of 1965 appears systematically in two chapters under Title II devoted to constitutional guarantees. Chapter I deals with individual rights and guarantees, and Chapter II deals with the recourse of habeas corpus and amparo.

3. Following is a summary of the individual rights and guarantees contained in Title I, Chapter I of the Constitution:

a. All human beings are free and equal in dignity and rights. According to the Constitution, the state guarantees as rights inherent in the human person, live, corporeal integrity, dignity, personal security and that of his property. No person may be subjected to servitude or to any other condition that impairs his dignity or respect. Any discrimination because of race, color, sex, religion, birth, economic or social position or political opinions is prohibited.15

b. The free exercise of the rights established by the Constitution is guaranteed with no limitations other than those deriving from the necessity of maintaining the public and social order.

c. Every person has the right to do whatever the law does not prohibit. No person is required to comply with or obey orders or mandates which are not based on law. No person may be persecuted or executed for his opinions or for acts which do not involve an infraction of the law. Any act that hinders or restricts Guatemalans from exercising their rights and fulfilling their duties as citizens is punishable, with the exception of restrictions established by the Constitution.

d. No person may be arrested or imprisoned except for a crime or misdemeanor and by virtue of a writ or warrant issued pursuant to law by the appropriate judicial authority. A prior warrant shall not be necessary when a person is discovered in the act of committing a crime or in the case of a fugitive from justice. Persons under arrest must be immediately placed at the disposal of the judicial authority and confined in places of temporary detention separate from those provided for the purpose of serving a sentence.

e. The law has no retroactive effect, except in criminal matters when favorable to the defendant. Actions or omissions which are not crimes or misdemeanors punishable by a law enacted prior to their perpetration are not punishable.16

f. There is no imprisonment for debt, nor may the penalty of confinamiento (confinement to a certain place with freedom to move about therein but under the surveillance of the authorities) be imposed; and no person may be compelled in a criminal case to testify against himself, against his spouse, or against relatives within the fourth degree of consanguinity or second degree of affinity.

g. Every person arrested shall be interrogated within forty-eight hours. At the time of this questioning, the reason for the detention, the name of the accuser or denouncer, and any other facts necessary for a knowledge of the alleged punishable act are to be made known. From the time of this proceeding, the accused may avail himself of legal counsel, who shall have the right to be present at the hearing and to visit the defendant at any time during office hours. Preventive arrest may not exceed five days. Within this period, an order of imprisonment must be issued or the arrested persons must be set free. A judge who prolongs this period will be held responsible. Any authority, prison head or employee who holds or orders the holding of a person incommunicado shall be removed from his position, without prejudice to the imposition of other penalties prescribed by law. No writ of imprisonment may be issued unless preceded by information that a crime has been committed and unless there are sufficient grounds for belief that the person under arrest has committed it or participated in it.

h. Defense of one's person and of one's rights is inviolable, and no one may be tried by a commission or by special courts. No one may be sentenced without having been charged, heard, and convicted in a legal trial held before competent and previously established courts or authorities, at which the essential formalities and guarantees have been observed; likewise, no one may be temporarily deprived of his rights except by virtue of proceedings which meet the same requirements.

i. No arrested or imprisoned person shall have inflicted upon him physical or moral torture, cruel treatment, infamous punishment or acts, hardships, or coercion, nor shall such a person be compelled to perform work prejudicial to his health or incompatible with his physical constitution or his dignity, nor may he be the victim of extortion. Minors must not be regarded as criminals and may never be sent to jails or establishments intended for adults, but should be attended to in suitable institutions under the care of qualified persons, for the purpose of obtaining a full education, medical and social assistance and their adjustment to society.17

j. Heads of prisons and places of detention shall be responsible, as authors thereof, for any act of torture, cruel treatment, or infamous punishment inflicted on criminals or inmates in the establishment of which they are in charge.

k. The domicile is inviolable and no one may enter another person's home without permission of the occupant, except on the written order of a competent judge and never before 6:00 a.m. or after 6:00 p.m. The correspondence and private papers and books of any person are inviolable. They may be examined or seized only by virtue of an order issued by a competent judge in accordance with the law.

l. All persons are free to enter, remain in, travel through and leave the territory of the republic except for the limitations established by law. No person may be compelled to change his residence or domicile except by order of a competent authority in accordance with the requirements prescribed by law. No Guatemalan may be expatriated, prohibited from entering the territory of the republic, or denied a passport or other documents of identification. Guatemalans may enter and leave the country without fulfilling visa requirements.

m. Guatemala recognizes the right of asylum and extends it to political refugees who seek protection under its flag, provided they respect the sovereignty and the laws of the state. Extradition of political offenders is prohibited and in no case shall an attempt be made to extradite Guatemalans who for political reasons take refuge in a foreign country. No Guatemalan shall be handed over to a foreign government for trial or punishment except for crimes covered by international treaties in force in Guatemala. Extradition of persons accused of common crimes connected with political crimes is also prohibited. Whenever expulsion of a political refugee is ordered, he shall not be handed over to the country whose government pursues him.

n. The right of peaceful assembly without arms is recognized. The right of assembly and of public demonstration may not be restricted, limited, or restrained and the law shall regulate these rights for the sole purpose of guaranteeing public order. Religious processions outside of churches are permitted and are governed by law.

o. The inhabitants of the republic have the right to associate freely for the various objectives of human life, for the purpose of promoting, exercising and protecting their rights and interests, especially those established by the Constitution.18

p. Thoughts may be freely expressed without prior censorship and any person who abuses this right by acting with a disregard for private life or morality shall be held responsible before the law. Denunciation, criticism, or censure directed against public officials or employees for strictly official acts committed in the course of their duties do not constitute the offenses of libel and slander. Printing shops, radiobroadcasting and television stations and any other media of expression may not be confiscated or seized, attached, or closed, or their work interrupted, because of any crime or misdemeanor in the expression of thought.19

q. The profession of any religion is guaranteed. Every person has the right to practice his religion in public or in private, through instruction, worship and observance, limited only by peace, good morals, public order and the respect due to the country's symbols. Religious associations and groups are prohibited from participating in partisan politics and ministers of faiths from campaigning.

4. Moreover, the basic text of Guatemala establishes that the rights and guarantees granted by the Constitution do not exclude others which, although not expressly indicated therein, are inherent in the human person. It adds that “laws and governmental orders or those of any other kind that regulate the exercise of rights guaranteed by the Constitution shall be null and void ipso jure if they diminish, restrict or distort such rights.”

It also establishes that “action for the prosecution of violators of rights and guarantees set forth in this title is public and may be brought by a simple denunciation without bond and without formality of any kind. Adequate resistance for the protection of the rights and guarantees set forth in the constitution is legitimate.”20

C. Other Legal Provisions

1. Guatemala's legal system includes other legal provisions which in one way or another are also related to the observance of human rights. Thus, through a series of laws, decrees, and codes, which constitute the aforementioned juridical system, the corresponding constitutional provisions related to the protection of human rights are developed.

2. Among these legal regulations, the following should be mentioned: the Penal Code, which was enacted on July 27, 1973, through Decree Nº 70-73 of the Congress of the republic; the Penal Procedural Code, enacted on July 27, 1973, through Decree Nº 52-73 of the Congress of the republic; the Labor Code, enacted on May 5, 1961, through Decree Nº 1441 of the Congress of the republic; the Law on the Judicial Branch, enacted on July 2, 1968, through Decree Nº 1762 of the Congress of the republic; the Law on Elections and Political Parties, enacted on October 21, 1965, through Decree Law Nº 387 by the Chief Executive; the Law on the Expression of Thoughts, enacted on April 28, 1966, through Decree Nº 9 of the Constituent Assembly; the Law on Public Order, enacted on November 30, 1965, through Decree Nº 7 of the Constituent Assembly; and the Law on Amparo, Habeas Corpus and Constitutionality, enacted on May 3, 1966, through Decree Nº 8 of the Constituent Assembly.

3. The legal regulations for the Guatemalan juridical system which have been mentioned will be dealt with specifically in this report's chapters upon analyzing specific topics related to the observance of human rights in that country.

D. International juridical regulations

1. As a member state of the international juridical community, Guatemala is a party to several international juridical instruments, at both the world and regional level, which set forth specific provisions related to human rights.

Moreover, Guatemala has participated in international conferences and meetings in which juridical instruments establishing the observance of human rights have been subscribed or adopted. These include the United Nations Charter, the Charter of the Organization of American States, the Universal Declaration of Human Rights, and the American Declaration of the Rights and Duties of Man.

2. The Guatemalan state is a party to the American Convention on Human Rights, which it ratified through Decree Nº 6-78 of April 27, 1978, and whose instrument of ratification it deposited on May 25 of that same year. In the aforementioned instrument of ratification, the Guatemalan Government expressed a reservation regarding Article 4, paragraph 4 of the Convention, holding that “Article 54 of the Constitution of the Republic of Guatemala excludes application of the death penalty only for political crimes, but not for common crimes related thereto.”

3. Guatemala is also a signatory of an party to other international conventions entered into in the framework of the United Nations, the inter-American system and the International Labour Organisation, which recognize respect for an observance of fundamental human rights.

Notes_____________________

1 Article 1 of the Constitution.

2 Articles 156,157 and 150 of the Constitution.

3 Articles 166, 169 and 170 of the Constitution.

4 Articles 171 and 172 of the Constitution.

5 Articles 181, 182, 185 and 188 of the Constitution.

6 Article 189 of the Constitution.

7 Articles 191 and 196 of the Constitution. The composition and functioning of the executive branch and of the public administration corresponding to that branch are regulated by the Executive Branch Law, enacted by the Congress of the republic through Decree Nº 93, of April 25, 1945, and later expanded and amended through subsequent decrees.

8 Articles 207 and 213 of the Constitution.

9 Articles 215 and 220 of the Constitution.

10 Articles 221 and 222 of the Constitution.

11 Article 240 of the Constitution.

12 Articles 242 and 249 of the Constitution.

13 Articles 253, 260, 262, 263, 264 and 265 of the Constitution. The judicial branch is governed by the Law on the Judicial Branch contained in Decree Nº 1762 of June 11, 1968.

14 Article 1 of the Law on Domestic Tribunals.

15 Article 43 of the Constitution.

16 Article 49 of the Constitution further establishes that “any individual or group action of a communist or anarchist nature or contrary to democracy is punishable. The law shall govern matters relating to this class of crime.” This constitutional provision is governed by Decree-Law Nº 9, which contains the Law on Defense of Democratic Institutions.

17 The matter of minors is governed by the Code of Minors contained in Decree 61-69 of the Congress of the republic.

18 Article 64 of the Constitution adds the following: “The organization or operation of groups that function in accordance with or subordinate to international organizations advocating the communist ideology or any other totalitarian system is prohibited.”

19 The Law on the Expression of Thoughts is governed by Decree Nº 9 of the National Constituent Assembly, enacted in 1964.

20 Articles 77 and 78 of the Constitution.