Constitutional Reform: Accord for a Firm and Lasting Peace

Agreement on Constitutional Reforms and the Electoral Regime (Stockholm, 7 December 1996)

I. Constitutional Reforms

Whereas the Constitution in force since 1986 sets forth the responsibility of the State, as the expression of the legal and political organization of society, for promoting the common good and the consolidation of the rule of legality, security, justice, equality, freedom and peace, and defines as a central concern the promotion of the full enjoyment of human rights within a stable, permanent and popular institutional order in which governed and government act with absolute adherence to the law,

Whereas in the Oslo Agreement of 30 March 1990, the delegation of the National Reconciliation Commission of Guatemala (CNR), acting with the full support of the Government of Guatemala, and the delegation of the Unidad Revolucionaria Nacional Guatemalteca (URNG), acting with the full support of its General Command, placed on record their express determination to find ways to solve the nation's problems peacefully by political means,

Whereas on 24 April 1991, the process of direct negotiation began between the Government of the Republic of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG), the Parties having pledged that the political agreements reached would reflect the legitimate aspirations of all Guatemalans and would be drawn up in accordance with the constitutional framework in force and with the El Escorial agreements, in which URNG and the country's political parties had pledged to promote such reforms of the Political Constitution of the Republic as were necessary for the reconciliation of all Guatemalans, the ending of the internal armed conflict, the peaceful solution of the nation's problems by political means and full respect for and application of the law,

Whereas the constitutional reforms contained in this Agreement constitute a substantive, fundamental basis for the reconciliation of Guatemalan society within the framework of the rule of law, democratic coexistence, full observance of and strict respect for human rights, an end to impunity and, at the national level, the institutionalization of a culture of peace based upon mutual tolerance and respect, shared interests and the broadest possible public participation in all structures of power,

Whereas the above-mentioned reforms will contribute to political stability, the strengthening of civilian power and the agreed redefinition of the functions of the armed forces for the new era in the country's history which will begin with the signing of the Agreement on a Firm and Lasting Peace,

Whereas the above-mentioned reforms also systematize and develop the spirit and the letter of the commitments signed on institutional, political, economic, social and ethnic issues, on human rights and their strict observance and on efforts to combat impunity,

Whereas, at the national level, recognition of the identity of indigenous peoples is of fundamental importance for building national unity based on respect for and the exercise of the political, cultural, economic and spiritual rights of all Guatemalans, as well as on the fulfillment of their duties,

Whereas the agreed constitutional reforms are a historic step which, at the institutional level, guarantees and ensures the building of a just peace and democratic stability by political and institutional means, within the framework of the political Constitution of the Republic,

The Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG), hereinafter referred to as "the Parties", have agreed as follows:

1. The Government of the Republic shall place before the Congress of the Republic the draft constitutional amendments contained in sections A and B of this Agreement 60 days after its entry into force.

2. It is understood that, where the text of a proposed constitutional amendment is not expressly drafted and the number of the corresponding article is not indicated, its drafting and numbering will be left to the legislative branch.

3. The Parties request the Congress of the Republic to promulgate or amend ordinary legislation, as necessary, to adapt it to the provisions agreed to by the Parties in the Peace Agreements and to the constitutional amendments contained in this Agreement; and also, if necessary, to agree to any other constitutional or legal amendments that may be required to maintain consistency and compatibility with the reforms proposed by the Parties.

A. Constitutional reforms contained in the Agreement on Identity and Rights of Indigenous Peoples

4. This Agreement provides for constitutional recognition of the identity of the Maya, Garifuna and Xinca peoples and, from that standpoint, of the need to define and characterize the Guatemalan State as being one of national unity and multi-ethnic, multicultural and multilingual in nature. It is not just a matter of recognizing the existence and identity of various ethnic groups, as article 66 of the Constitution currently does, but of recognizing that the very make-up of society, without prejudice to the unity of the nation and the State, is characterized in that way; this also entails recognizing the specific nature of indigenous people's spirituality as an essential component of their world view and of the transmission of their values, and granting official constitutional recognition to indigenous languages as one of the mainstays of national culture and as a vehicle for acquiring and transmitting indigenous people's world view, knowledge and cultural values.

Identity of the Maya, Garifuna and Xinca peoples

5. Sponsor in the Congress of the Republic express constitutional recognition of the identity of the Maya, Garifuna and Xinca peoples, within the unity of the Guatemalan nation.

List of the languages existing in the country

6. Sponsor in the Congress of the Republic an amendment to the Constitution incorporating in its article 143 a list of all languages existing in the Republic, which the Government is required to recognize, respect and promote.

Official recognition of indigenous languages

7. Sponsor in the Congress of the Republic, in accordance with the conclusions of the Official Recognition Commission established under the Agreement on Identity and Rights of Indigenous Peoples, the necessary constitutional amendments arising out of the Commission's work.

Spirituality of the Maya, Garifuna and Xinca peoples

8. Sponsor in the Congress of the Republic the amendment of article 66 of the Constitution to stipulate that the State recognizes, respects and protects the various forms of spirituality practised by the Maya, Garifuna and Xinca peoples.

Definition and characterization of the Guatemalan nation

9. Sponsor in the Congress of the Republic an amendment to article 140 of the Constitution to define and characterize the Guatemalan nation as being one of national unity and multi-ethnic, multicultural and multilingual in nature.

B. Constitutional reforms included in the Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society

10. Within the framework of the modernization of State institutions, the Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society provides for constitutional reforms with respect to the Congress of the Republic, the Judiciary, the functions of the President of the Republic, and the Guatemalan armed forces. The aim is not to propose case-by-case measures, but to reformulate the whole conception of State organs and institutions with a view to strengthening democracy in line with present-day constitutional trends.

Congress of the Republic

11. With regard to the Congress of the Republic, present conditions have prompted various social sectors to raise the issue of the number of deputies, with a view to preventing their numbers from exceeding a predetermined reasonable level while preserving their representativeness as a characteristic expression of democracy. In addition, that representativeness raises the need for an equally reasonable turnover of deputies; accordingly, it is envisaged that deputies will not be able to be re-elected for more than two consecutive terms.

Fixed number of deputies

12. Sponsor in the Congress of the Republic an amendment to article 157 of the Constitution to maintain the number of deputies in the Congress at the current level.

13. An amendment to the same article, stating that deputies cannot be re-elected for more than two consecutive terms, should also be sponsored, so as not to prevent parliamentary careers but at the same time to permit a turnover of political leadership in the Congress.

Administration of justice

14. The integrity and efficiency of the judicial function fulfill the task of guaranteeing the rules of social relations, a guarantee which can become operative only if there is security, as manifested in the substantive rights prescribed by law, the fair settlement of disputes, universal respect for procedural norms, the punishment of offenders and reparation for injury.

15. That is why it is important to strengthen the judicial function so that, within the constitutional framework that provides general guarantees for the administration of justice, free access to the administration of justice, regardless of financial means, can become a reality, based, in particular, on the multi-ethnic, multicultural and multilingual nature of Guatemala; the impartiality and independence of judges; the reasonable and prompt resolution of social conflicts; the provision of alternative mechanisms for resolving such conflicts; and a career judicial service which strives to ensure the professional excellence of judges, as well as proper recognition of the dignity of their profession and of their rights and responsibilities with regard to training and advanced training, without prejudice to a disciplinary system which, while respecting the rights of defence and due process, guarantees the proper exercise of the judicial function, with the power to impose penalties being exercised solely by the judiciary.

Guarantees for the administration of justice

16. Sponsor in the Congress of the Republic an amendment to article 203 of the Constitution which would make an initial express reference to guarantees of the administration of justice and, as such, include:

(a) free access to the administration of justice in the person's own language;

(b) respect for the multi-ethnic, multicultural and multilingual nature of Guatemala;

(c) defence counsel for those who cannot afford it;

(d) impartiality and independence of judges;

(e) reasonable and prompt resolution of social conflicts; and

(f) provision of alternative conflict-resolution mechanisms. In addition, the present content of article 203 should be reproduced in summarized form in a separate paragraph.

Career judicial service

17. Sponsor in the Congress of the Republic the amendment of articles 207, 208 and 209 of the Constitution, which would include a reference to the Act on the Career Judicial Service and establish its content as follows:

(a) Rights and responsibilities of judges, dignity of the profession and adequate remuneration;

(b) System of appointments and promotions of judges based on public competitive examinations designed to ensure professional excellence;

(c) Right and duty to pursue judicial training and advanced training;

(d) Disciplinary system, with pre-established guarantees, procedures, levels of jurisdiction and penalties, and the principle that a judge or magistrate can be investigated and punished only by his peers.

Personnel of the judiciary

18. Sponsor in the Congress of the Republic an amendment to article 210 of the Constitution eliminating the guarantee set forth in the second paragraph, since its content would be subsumed under the three preceding articles. Article 210 should refer only to personnel of the judiciary who are not judges or magistrates.

National Civil Police

19. Sponsor in the Congress of the Republic the inclusion of an article in the Constitution defining the functions and main characteristics of the National Civil Police as follows:

"The National Civil Police is a professional and hierarchical institution. It is the only armed police force with national jurisdiction and its function is to protect and safeguard the exercise of the rights and freedoms of individuals; to prevent, investigate and combat crime; and to maintain public order and internal security. It shall be under the control of civilian authorities and shall show strict respect for human rights in carrying out its functions.

"The law shall regulate the requirements and procedures for admission to the police profession, as well as promotions, advancement, transfers, disciplinary action against police officials and employees and other questions related to the functioning of the National Civil Police."

Guatemalan armed forces

20. In a democratic society, the typical functions of the armed forces relate to the defence of sovereignty and territorial integrity; any other function is atypical and exceptional; like any other government institution, their exercise of other functions must take place in a context of subordination to lawfully constituted authority and be preceded by a decision of and be monitored by the lawfully constituted authorities of the State within their specific sphere of competence. Any exceptional function of the armed forces must therefore be decided by the President of the Republic, as Head of State and Commander-in-Chief of the Armed Forces, and be subject to oversight by the Congress of the Republic.

21. Moreover, like other Ministers of State, the Minister of Defence is called upon to perform policy-making functions which do not necessarily require that he have a strictly technical background. As a result, the current requirement that he be a member of the armed forces is not justified. In keeping with present day conceptions of the organization of the judiciary, exclusive military jurisdiction in criminal matters should be confined to strictly military crimes and misdemeanours.

Constitution, organization and functions of the armed forces

22. Sponsor in the Congress of the Republic an amendment to article 244 of the Constitution so that it reads as follows:

"Article 244. Constitution, organization and functions of the armed forces. The Guatemalan armed forces are a permanent institution in the service of the nation. They are unique and indivisible, essentially professional, apolitical, obedient and non-deliberative. Their function is to defend the sovereignty of the State and the integrity of its territory. They consist of land, sea and air forces. Their organization is hierarchical and is based on the principles of discipline and obedience."

Functions of the President of the Republic

23. Sponsor in the Congress of the Republic an amendment to article 183 of the Constitution which would include the following:

"Delete paragraph (r) of article 183 and amend the wording of paragraph (t) to read: 'To grant special pensions'".

24. With regard to the functions of the President of the Republic, it has been agreed to sponsor the inclusion of the following in article 183:

"Where the normal means for the maintenance of public order and internal peace have been exhausted, the President of the Republic may, on an exceptional basis, use the armed forces for this purpose. The action of the armed forces shall always be temporary, shall be conducted under civilian authority and shall involve no limitation whatsoever on the exercise of the constitutional rights of citizens.

"To order these exceptional measures, the President of the Republic shall issue the corresponding agreement. The action of the armed forces shall be limited to such time and modalities as are strictly necessary and shall cease as soon as its purpose has been achieved. The President of the Republic shall keep the Congress informed of the operations of the armed forces, and the Congress may at any time order that such operations shall cease. In any event, within 15 days following the end of such operations, the President of the Republic shall submit to the Congress a detailed report on the action of the armed forces."

Duties and powers of the President over the armed forces

25. Sponsor in the Congress of the Republic an amendment whereby the final sentence of paragraph (b) of article 246 of the Constitution, which reads:

"He may, likewise, approve special pensions", would be deleted.

26. Also sponsor the redrafting of the first paragraph of article 246 so that it reads as follows:

"The President of the Republic is the Commander-in-Chief of the Armed Forces and shall issue his orders through the Minister of National Defence, whether the Minister is a civilian or a member of the armed forces."

Military courts

27. Sponsor in the Congress of the Republic the total redrafting of article 219 of the Constitution, so that it reads as follows:

"Article 219. Military courts. The military courts shall try the crimes and misdemeanours specified in the Military Code and in the corresponding regulations. Ordinary crimes and misdemeanours committed by military personnel shall be tried and judged by the ordinary courts. No civilian may be judged by military courts."

Agreement on the Strengthening of Civilian Power and the Role of the Armed Forces in Democratic Society (Mexico City, 19 September 1996)

II. The Legislative Branch

6. The Parties agree that the legislative branch must be enhanced, modernized and reinforced, and that the Presidency of the Congress will be requested to set up a multi-party agency for that purpose. This agency will work in conjunction with those legislative commissions which have been entrusted with responsibilities in connection with the follow-up to the agreements on a firm and lasting peace and the process of modernization and strengthening of the Congress of the Republic. Its agenda, minimal and open-ended, will give priority to the following aspects:

(d) Legal or constitutional reforms to maintain the number of deputies in the Congress at a constant level;

(e) Reform of article 157 of the Constitution so that deputies cannot serve more than two consecutive terms, so as to avoid disrupting political careers while at the same time ensuring the renewal of political leadership in the Congress;

III. System of Justice

Constitutional reforms

12. Promote the reform of the following articles of the Constitution in the Guatemalan Congress:

Chapter IV - The judiciary

Section I: General provisions

(a) Article 203: the article should contain an initial reference to guarantees of the administration of justice and, as such, include: free access to the system of justice in the person’s own language; respect for the multi-ethnic, multicultural and multilingual nature of Guatemala; legal assistance to those who cannot afford their own counsel; the impartiality and independence of judges; reasonable and prompt resolution of social conflicts and provision of alternative conflict-resolution mechanisms;

(b) The summarized contents of article 203 should be included in a separate paragraph;

(c) Articles 207, 208 and 209 should refer to the Act on Careers in the Judiciary and include the following provisions:

- Rights and duties of judges, the dignity of the profession and adequate remuneration;

- System of appointment and promotion of judges based on competitive examinations to promote professional excellence;

- Right and duty to pursue professional legal training and career development;

- Disciplinary system, with pre-established guarantees, procedures, levels of jurisdiction and penalties, and the principle that a judge or magistrate can be investigated and punished only by his peers; (d) Article 210: the guarantee in the second paragraph should be deleted, since its contents would be covered by the three previous articles. This article should refer only to personnel of the judiciary who are not judges or magistrates.

IV. Executive Branch

B. Public security

Constitutional reforms

23. The reform of the Constitution shall establish the functions and main characteristics of the police force as follows:

"The National Civil Police shall be a professional and hierarchical institution. It shall be the only armed police force competent at the national level whose function is to protect and guarantee the exercise of the rights and freedoms of the individual; prevent, investigate and combat crime; and maintain public order and internal security. It shall be under the direction of the civil authorities and shall maintain absolute respect for human rights in carrying out its functions.

"The law shall govern the requirements and procedures for admission to the police profession, as well as promotions, advancement, transfers, disciplinary action against officers and employees in the profession and other questions related to the functioning of the National Civil Police."

C. Armed forces

Constitutional reforms

36. The Government undertakes to sponsor the following amendments to the Guatemalan Constitution:

(a) Article 244. Constitution, organization and functions of the armed forces. The Guatemalan armed forces are a permanent institution in the service of the nation. They are unique and indivisible, essentially professional, apolitical, loyal and non-deliberative. Their function is to protect the sovereignty of the State and its territorial integrity. They consist of ground, air and naval forces. Their organization is hierarchical and based on the principles of discipline and obedience;

(b) Article 219. Military courts. The military courts shall take cognizance of the crimes and misdemeanours specified in the military code and in the corresponding regulations. Ordinary crimes and misdemeanours committed by military personnel shall be tried and judged by the ordinary courts. No civilian may be judged by military courts;

(c) Article 246. Duties and powers of the President over the armed forces. Replace the first paragraph by the following: "The President of the Republic is the Commander-in-Chief of the armed forces and shall issue his orders through the Minister of Defence, whether he is a civilian or a member of the military".

D. Presidency of the Republic

Constitutional amendments

45. The Government shall sponsor in the Guatemalan Congress the following amendments to the Guatemalan Political Constitution:

(a) With regard to the functions of the President of the Republic, include the following:

"When the ordinary means for the maintenance of public order and domestic peace are exhausted, the President of the Republic may exceptionally use the armed forces for this purpose. The deployment of the armed forces shall always be temporary, shall be conducted under civilian authority and shall not involve any limitation on the exercise of the constitutional rights of citizens.

"In order to take these exceptional measures, the President of the Republic shall issue an agreement to that end. The operations of the armed forces shall be limited to the time and modalities which are strictly necessary, and shall end as soon as the purpose has been achieved. The President of the Republic shall keep Congress informed about the operations of the armed forces, and Congress may at any time decide that such operations should cease. At all events, within 15 days of the end of such operations, the President of the Republic shall submit to Congress a detailed report on the operations of the armed forces;"

(b) Amend article 246, entitled "Duties and powers of the President over the armed forces", by deleting the sentence in paragraph (b) of that article which reads: "He may, likewise, approve special pensions";

(c) Amend article 183, entitled "Functions of the President of the Republic", by deleting paragraph (r) and amending the text of paragraph (t) as follows: "To grant special pensions".

Implementation History

1997

Minimum Implementation

The Agreement on the Implementation, Compliance and Verification Timetable for the Peace Agreements stipulated that proposed constitutional reforms should be presented to the Congress of the Republic for ratification by 15 April, the Follow-up Commission rescheduled the deadline for 15 May. The Guatemalan government presented the draft constitutional amendments to the Congress on 15 May, fulfilling the terms of the agreements.1

  • 1. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/51/936), June 30, 1997.
1998

Minimum Implementation

All 50 constitutional amendments submitted by the Government were approved by the Congress in October 1998. The constitution mandated that they then be submitted to the people for a referendum, scheduled for May 1999.2

  • 2. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/54/526), November 11, 1999.
1999

Minimum Implementation

The referendum for the full package of constitutional amendments occurred on 16 May 1999. Voters denied all of the proposed amendments.3

2000

Minimum Implementation

No further developments observed.

2001

Minimum Implementation

No further developments observed.

2002

Minimum Implementation

No further developments observed.

2003

Minimum Implementation

No further developments observed.

2004

Minimum Implementation

No further developments observed.

2005

Minimum Implementation

No further developments observed.

2006

Minimum Implementation

No further developments observed.