Guatemala Legal Profile

Guatemala has a civil law system. There is a clear legal hierarchy, with constitutional law forming the supreme law of Guatemala, followed by statutory law. The Political Constitution of the Republic of Guatemala’s supremacy is affirmed in Article 175, which states that no law may contradict the Constitution and those that violate it are void in terms of the law. Its three sections protect fundamental rights and liberties, establish the basic structure and power of the government and set out safeguards to protect the rights and liberties recognised in the Constitution.

The president has limited legislative and legal powers and always acts in conjunctions with at least one minister, although they may be temporarily empowered during national emergencies. The Congress of the Republic, the legislative branch, also serves as a check on executive power.

Judicial independence is enshrined in Article 203 of the Political Constitution. The judicial branch is formed from the Supreme Court, the Appellate Court of Accounts, Administrative Tribunals, the Court of Appeals, First Instance Courts as well as minor and child courts. The Supreme Court acts as the highest court for civil, criminal and constitutional matters. The autonomy of the judiciary, however, is questionable. Attacks on judges and lawyers involved in high profile court cases are not uncommon and private sector groups have been able to delay such cases on multiple occasions.

Cases are also hampered by a number of mechanisms provided by national legislation. As such, the judiciary is only moderately independent as it is subjected to interference by political, criminal and private-sector actors.

Corruption represents a major threat to the independence of the judiciary, and is also endemic within the business and political environments. Bribes and irregular payments are often exchanged in return for favourable or delayed court rulings which contribute to the inconsistency in judicial decisions and long ruling times.

As such, impunity is widespread amongst government officials, although major corruption cases have occurred in recent years. Notably La Línea scandal saw the resignation of and charges brought against former President Otto Pérez Molina and his vice-president. Current President Jimmy Morales is also embroiled in scandal after failing to expel the head of the UN International Commission against Impunity in Guatemala from the country.

Furthermore, the attorney general is also attempting to remove Morales political immunity in order to press corruption charges, linked to the 2015 election, against him. Strong anti-corruption legislation exists, but interference with the judiciary by third parties often stops effective implementation.

Guatemalan civil law is based off French influences and legislation is considered the primary source of law. Custom may only be invoked in the complete absence of applicable legislation. The Civil Code of 1963 governs a broad range of topics including contracts, obligations and personal law.

The Commercial Code of 1970 regulates commercial activity and covers corporate law, commercial entities and law on commercial agreements; the Labour Code, meanwhile, governs employer-employee relations.

Furthermore, corruption offences, both passive and active, are criminalised under Guatemala’s Penal Code. Guatemala’s courts are also empowered to seize goods and assets connected to illicit activities, through the Asset Recovery Law.

Guatemala has signed a number of international treaties and conventions including the Geneva Conventions, United Nations Convention Against Corruption, the New York Convention and the Framework Convention on Climate Change as well as the Kyoto Protocol.

Guatemala is also a member of a number of international organisations. These include the Central American Common Market, Dominican Republic-Central America Free Trade Agreement, World Trade Organisation and the International Centre for Settle of Investment Disputes. National legislation is preeminent over international law, except for treaties and agreements ratified concerning human rights.

References

https://web.archive.org/web/20121121143038/http://www.nyulawglobal.org:80/Globalex/Guatemala1.htm;  https://www.constituteproject.org/constitution/Guatemala_1993.pdf?lang=en.

https://www.constituteproject.org/constitution/Guatemala_1993.pdf?lang=en.

https://www.bti-project.org/en/reports/country-reports/detail/itc/gtm/.

http://www.business-anti-corruption.com/country-profiles/guatemala.

http://www.business-anti-corruption.com/country-profiles/guatemala.

https://www.constituteproject.org/constitution/Guatemala_1993.pdf?lang=en.

http://www.imf.org/external/datamapper/NGDP_RPCH@WEO/GTM; http://www.imf.org/external/datamapper/NGDPD@WEO/GTM.

https://atlas.media.mit.edu/en/profile/country/gtm/.

http://www.doingbusiness.org/data/exploreeconomies/guatemala#starting-a-business.

https://globaledge.msu.edu/countries/guatemala/risk.

https://www.cia.gov/library/publications/resources/the-world-factbook/geos/gt.html.

https://globaledge.msu.edu/countries/guatemala/risk.

http://www.business-anti-corruption.com/country-profiles/guatemala.

http://www.imf.org/external/datamapper/NGDPD@WEO/GTM;  http://www.imf.org/external/datamapper/NGDP_RPCH@WEO/GTM.

https://www.cia.gov/library/publications/resources/the-world-factbook/geos/gt.html.