Judiciary Reform: Accord for a Firm and Lasting Peace

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

III. System of Justice

8. One of the major structural weaknesses of the Guatemalan State stems from the system of administration of justice, which is one of the key public services. This system and the functioning of judicial proceedings within it suffer from faults and deficiencies. The antiquated legal practices, slow proceedings, absence of modern office management systems and lack of supervision of officials and employees of the judicial branch breed corruption and inefficiency.

9. The reform and modernization of the administration of justice should be geared to preventing the judiciary from producing or covering up a system of impunity and corruption. The judicial process is not a simple procedure regulated by codes and ordinary laws but rather an instrument for ensuring the basic right to justice, which is manifested in a guarantee of impartiality, objectivity, universality and equality before the law.

10. A priority in this respect is to reform the administration of justice in order to put an end to inefficiency, eradicate corruption and guarantee free access to the justice system, impartiality in the application of the law, judicial independence, ethical authority and the integrity and modernization of the system as a whole.

11. In order to address all the foregoing, the Government undertakes to adopt, where it is within its power, and to promote in the Guatemalan Congress, where it is within the latter’s competence, the following measures:

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.

Legal reforms

13. Promote the following legal reforms in the Guatemalan Congress:

Careers in the judiciary

(a) Establish careers in the judiciary as provided for by article 209 of the Constitution in accordance with the contents of this Agreement;

Public Defender's Office in criminal matters

(b) Establish a Public Defender's Office in criminal matters to provide legal assistance to those who cannot afford to retain their own counsel. It would be functionally autonomous and independent from the three branches of Government, have the same standing as the Public Prosecutor's Office and have effective country-wide coverage;

Penal Code

(c) Institute a reform of the Penal Code that gives priority to the criminal prosecution of those offences that are most detrimental to society, takes into account the country's cultural differences and customs, fully protects human rights and characterizes threats and coercion of judicial personnel, bribery, graft and corruption as particularly serious offences which are severely punished.

Administrative initiatives and measures

14. Take such administrative initiatives and measures as are necessary to:

(a) Provide the judiciary and Public Prosecutor's Office with more financial resources to enable them to carry out their technological modernization and to expand their coverage throughout the country, institute multilingualism in the system of justice in accordance with the Agreement on Identity and Rights of Indigenous Peoples, and implement an effective protection plan for witnesses, prosecutors and individuals who cooperate with the justice system. In this regard, by the year 2000, the Government intends to increase net public expenditure allocated to the judiciary and the Public Prosecutor's Office as a proportion of gross domestic product by 50 per cent over its 1995 level;

(b) Provide the necessary resources to the Public Defender's Office so that it can be established and begin its activities in 1998.

Commission on the strengthening of the justice system

15. The Parties also agree that, within 30 days after the signing of the agreement on a firm and lasting peace, the President of Guatemala will propose that a commission be established with the mandate to prepare within six months, following an extensive debate on the justice system, a report and a set of recommendations for implementation as soon as possible. That commission, which will receive advisory assistance from the Mission for the Verification of Human Rights and of Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala (MINUGUA), shall include the qualified representatives of the various public institutions and social and private bodies that are involved in and/or are knowledgeable about the justice system.

16. The work of the Commission shall include and not be limited to the following:

Modernization

(a) How to effectively separate administrative functions from jurisdictional functions in the judiciary and the Public Prosecutor's Office, so as to relieve judges and prosecutors from burdensome tasks that prevent them from dedicating themselves fully to their proper mandates, instituting a modern and effective management system in both institutions;

(b) The adequate distribution of available financial resources in order to strengthen the system, bearing in mind the need for more rational use of resources;

(c) Outlining the basic elements of a bill for the civil service of the judiciary;

Access to the justice system

(d) With the participation of indigenous peoples' organizations, follow up on the commitments undertaken under the Agreement on Identity and Rights of Indigenous Peoples concerning how justice is administered among those peoples, with a view to facilitating a simple and direct access to the justice system by major sectors of the country that are currently outside the system or that are at a disadvantage when they appear in court;

Streamlining

(e) Phase in oral legal proceedings in order to extend the benefits of such a system to those areas where it does not exist, and the guarantee of direct access to a judge in all proceedings;

(f) Implement the expansion and recognition of alternative conflict resolution mechanisms;

Professional excellence

(g) Devise a system for the selection and appointment of appeals court magistrates through competitive examinations;

(h) Strengthen the Judicial Training School and the training unit of the Public Prosecutor's Office as the main bodies for the selection and further training of judges, magistrates and prosecutors;

Non-State partners

(i) Promote the active involvement in the legal reform process of those bodies outside the State system of justice which play a decisive role in such reform.

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

I. Constitutional Reforms

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

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.

Implementation History

1997

Intermediate Implementation

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

Governmental Agreement 221-97 established the Commission on the Strengthening of the Justice System on 7 March, and it commenced to promote consultation and debate about the reformation of the judiciary.2

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

Intermediate 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 1999.3

The Public Prosecutor's Office restructured to improve capacity and access to justice. A Coordinating Authority for the Modernization of the Justice Sector was created to bring together the Ministry of the Interior, the Public Prosecutor's Office and the judiciary to work for comprehensive reform.4

The judiciary began improving access to justice by expanding its geographic presence and increasing the number of linguistic interpreters.5

  • 3. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/54/526), November 11, 1999.
  • 4. “Eighth Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/52/946), June 15, 1998.
  • 5. “Ninth Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/53/853), March 10, 1999.
1999

Intermediate Implementation

The referendum for the full package of constitutional amendments occurred on 16 May 1999. With low turnout, voters denied the proposed amendments related to the judiciary, along with all other proposed amendments.6

Congress passed legislation to build the career judicial service on 27 October. Congress also developed consensus on the selection process for judges in the Supreme Court of Justice, and the new judges took office on 13 October. The first class (26 persons) of first instance and sentencing court judges graduated from the Judicial Training School in July. The Public Prosecutor's Office completed the first stage in the restructuring of its district offices in May.7

  • 6. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/54/526), November 11, 1999.
  • 7. “Tenth Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/54/688), December 21, 1999.
2000

Intermediate Implementation

No developments observed this year.

2001

Intermediate Implementation

As of September 2001, the judicial system had largely failed to adapt to guarantee equal access and equal rights for indigenous persons.8

  • 8. “The Indigenous Peoples of Guatemala: Overcoming Discrimination in the Framework of the Peace Agreements, Verification Report," United Nations Verification Mission in Guatemala (MINUGUA), September 2001.
2002

Intermediate Implementation

The judicial system improved its capacity, spreading courts, judges and affiliated personnel across the country. This increased presence, however, did not result in actual improvements in the rule of law. On the contrary, crime and impunity were on the rise, with the increasing involvement of the police in the crimes and subsequent obstruction of justice. In the midst of these difficulties, Congress cut the budget for the justice system by 12%.9

  • 9. “Thirteenth Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/57/336), August 22, 2002.
2003

Intermediate Implementation

The Public Prosecutor's Office was unable to investigate all the reports of human rights violations committed by the PNC. As of July, roughly 1,600 complaints were pending. Its personnel had grown modestly compared to the previous year, but it still lacked resources and only had offices in 10% of municipalities. Overall, the Office was no better equipped to combat corruption and human rights violations than it was in 1997.10

  • 10. “Fourteenth Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/58/566), November 10, 2003.
2004

Intermediate Implementation

No developments observed this year.

2005

Intermediate Implementation

No developments observed this year.

2006

Intermediate Implementation

The Guatemala judiciary ten years after the accord is considered one of the most inefficient and corrupt institutions in Guatemala.11