By: Diana De Mata
I. The Principle Of Constitutional Supremacy In The Jurisdictional Function
Within the Guatemalan legal system, the jurisdictional function must be exercised, by constitutional mandate, in strict observance, compliance and protection of the constitutional principle of constitutional supremacy.
In the first paragraph of Article 203 of the Constitution, referring to the “independence of the Judiciary and power to judge” it is clearly and expressly established that “justice shall be imparted in accordance with the Constitution and the laws of the Republic.” In the second paragraph of the same article, it is established that “Magistrates and judges are independent in the exercise of their functions and are subject only to the Constitution of the Republic and the laws.”
In the same sense, Article 204 of the Constitution, referring to the “essential conditions of the administration of justice,” establishes that “The courts of justice in any resolution or sentence shall obligatorily observe the principle that the Constitution of the Republic prevails over any law or treaty.”
Regarding the relationship that should exist between the exercise of the jurisdictional function and the principle of constitutional supremacy, the Constitutional Court, has established the following:
“(…) The constitutional hierarchy and its influence over the entire legal system has one of its manifestations in the prohibition that the rules of lower hierarchy may contradict those of higher hierarchy. The principle of legal supremacy is guaranteed by the Constitution; on the one hand, which orders the adequacy of the law to the constitutional norms and, on the other hand, which imposes on the courts the duty to observe in any resolution or sentence the principle that the Constitution prevails over any law. (…).[i]”(emphasis added).
“(…) As an initial point, it should be noted that among the principles that make up the State of Guatemala is that of constitutional supremacy, according to which, at the apex of the Guatemalan legal system are the Constitution and, by the recognition of the block of constitutionality, the international treaties and conventions on Human Rights duly approved and ratified. As the supreme law of the State, the Constitution and said agreements are binding for both rulers and governed in order to achieve the consolidation of the Constitutional State of Law, which implies not only that they act as a fundamental and foundational body of the general legal system, but also that they are legal provisions in force, that is to say, they have normative force, and cannot be conceived as mere declarations of rights, principles and political structures whose effectiveness is subordinated or conditioned – except in cases where this is expressed in the norm itself – to the discretionary activity of any of the organs of the constituted power. (…)”[ii]. (emphasis added).
Within the Guatemalan legal system, the observance of the principle of constitutional supremacy is a general and absolute requirement, both for citizens and for the public power. In the specific case of the jurisdictional function, the defense of the principle of constitutional supremacy acquires even greater relevance since it is materially impossible to speak of “justice” when it is not based on, does not obey and is not intended to defend constitutional norms, principles and values.
II. The Material and Formal Legal Value of the Judgment Declaring the Unconstitutionality in a Concrete Case “Con Lugar”.
In accordance with the provisions of Article 266 of the Political Constitution of the Republic, referring to the “unconstitutionality of laws in specific cases”, “in specific cases, in any proceeding of any competence or jurisdiction, in any instance and in cassation and until before a judgment is rendered, the parties may raise as an action, exception or incident, the total or partial unconstitutionality of a law. The court must rule on the matter”.
Regarding unconstitutionality in specific cases as a constitutional guarantee intended to defend the principle of constitutional supremacy, the Constitutional Court has established the following:
“(…) This mechanism is a procedural legal instrument whose purpose is to maintain the preeminence of the Constitution over all other norms, and to guide the appropriate selection of norms applicable to each specific case. The person who is directly affected by the unconstitutionality of a law may raise it before the appropriate court according to the subject matter and it may be promoted when the “law” in question has been cited as a legal support in the complaint, in the answer or in any other way resulting from the trial process. (…)[iii]”.
“(… ) the unconstitutionality of laws in specific cases is one of the means of defense that the Constitution establishes so that the parties to a proceeding may avoid that their own fundamental rights may be violated by the application of legal provisions that, if applied in particular cases submitted to the ordinary jurisdiction, may result in violation of precepts of the Constitution, The aim is to obtain a pronouncement from the Constitutional Court before deciding the case in question, so that, upon hearing the merits of the case, the law or rule under attack will not be applied, since the aforementioned assumptions are found to exist. Laws that, as a general rule, have been cited by the parties in support of their claims in the dispute that the judge or court must resolve may be challenged in this way, including those of a substantive, regulatory (administrative) and procedural nature. (…)[iv]”.
From the aforementioned jurisprudence, it is evident that the judgment that declares the unconstitutionality claim “admissible” in a specific case assumes that the judge who heard said claim, in the exercise of his jurisdictional function, carried out the corresponding analysis and technical legal reasoning that led him to conclude, determine and decide that the word, phrase, sentence or normative provision challenged as unconstitutional, indeed, violates a constitutional rule or principle. And, therefore, in order to preserve the principle of constitutional supremacy, as expressly mandated by the Constitution, it “inapplies” the normative provision declared unconstitutional to resolve the case before it.
In this order of ideas, it is important to note that the jurisdictional decision of declaring the unconstitutionality of a specific case to be “upheld” implies, for the court that issued it, much more than a “positive ruling” with respect to an approach or request presented by one of the procedural parties. The ruling that declares “with place” a motion of unconstitutionality in a specific case, in reality, has a double legal value, one material and the other formal and, therefore, it produces or should produce, decisive and incisive effects in the judiciary in which such ruling was issued.
The “material” legal value of this type of ruling is precisely the decision reached by the jurisdictional body in establishing and declaring that a certain normative provision, in force within the Guatemalan legal system, is unconstitutional. The declaration of unconstitutionality in a specific case, contrary to what many jurists still think today, does not imply or imply that the normative provision declared unconstitutional is unconstitutional by virtue of the factual context of the specific case in which it arises. The declaration of unconstitutionality in this type of unconstitutionality action, as in the case of general unconstitutionality, is eminently “normative”, which means that if the court decides that the challenged provision is unconstitutional, it is because, in its (legal-constitutional) judgment, the provision violates constitutional norms, principles or values, regardless of the factual context of the specific case.
The foregoing then allows to establish that the declaration of unconstitutionality in a specific case does not contain a “circumstantial” judgment or criterion regarding the unconstitutionality of the challenged norm, but rather, it supposes an “objective”, “general”, “abstract” and “impersonal” judgment or criterion regarding the unconstitutionality of the same. And hence the relevant and definitive material value of this type of constitutional rulings because, although they are not issued by the highest court in constitutional matters of the country, it can be said that the positive declaration in specific cases regarding the unconstitutionality of the challenged norm, from a strictly legal-constitutional point of view, implies the “discovery”, the “identification” and the “conclusion” that a norm in force within the Guatemalan legal system violates and contravenes the constitutional text. Circumstance that constitutes, from any point of view, a latent, proven and evidenced threat to the constitutional Rule of Law that the State of Guatemala pretends to become.
On the other hand, the “formal value” that supposes the declaration of unconstitutionalities in a concrete case, is the “jurisprudential precedent” that is created or formed by the jurisdictional organ when dictating said decision. In other words, if the court, at the request or proposal of a procedural party in a specific case, determines, discovers, decides and concludes that a certain normative provision is unconstitutional, automatically, a jurisdictional criterion of special jurisprudential value is born to the legal life, since, as previously established, it is not that the judge considers that, for that specific case (due to the specific factual circumstances of the same), the challenged norm is unconstitutional, but rather, the judge establishes that the challenged normative provision “IS UNCONSTITUTIONAL”, independently of the case and the facts that gave rise to the unconstitutionality in the specific case.
III. The Obligation of the Jurisdictional Body that Declared the Unconstitutionality Claim in a Specific Case to “Inapply” the Unconstitutional Legislative Provision in Other Cases
The principle of legal certainty, within the scope of the jurisdictional function, requires that judges rule in an identical or similar manner in those cases in which both the legal problem and the rules that resolve it are in dispute. This is precisely what constitutes the value of “jurisprudential precedents” and “jurisprudential lines”. In light of the content of the principle of legal certainty and security, it is naturally expected that the jurisdictional bodies attend, observe and respect their own jurisdictional criteria in those similar cases in which it is merited to do so.
The observance of the judicial precedent by the jurisdictional bodies should not be “begged” by the procedural parties, since an essential or fundamental part of the exercise of the jurisdictional function is the judicial obligation to preserve the principle of legal certainty in the form and sense of resolving. This obligation, by the way, as mentioned above, implicitly implies the observance of the principle of constitutional supremacy.
In this order of ideas, in the opinion of the author, it is concluded that, if a judge declared the unconstitutionality of a normative provision, by virtue of a petition of unconstitutionality in a specific case, this judge could not and, therefore, should “inapply” said norm at the time of resolving any other case before him, without the need for there to be a petition of unconstitutionality in a specific case in which such inapplication is requested.
In these cases, the “ex officio inapplication” of the rule becomes mandatory for the jurisdictional body since the judge himself has already resolved and established the unconstitutionality of the normative provision, a decision that, as previously established, transcends the specific case in which the unconstitutionality claim was heard, since it would be legally and constitutionally unacceptable for a judge to resolve a case by applying a rule, knowing that it is unconstitutional, according to his own well-founded legal motivations and reasons. In other words, it would constitute a “legal aberration” to accept that a judge, in the exercise of his jurisdictional function, disregards the declaration of unconstitutionality that he himself resolved with respect to a certain legal rule and, therefore, decides to apply it, even considering it unconstitutional, to resolve another case. In these cases, the judge would not only be violating the constitutional mandate to impart justice observing the principle of constitutional supremacy, but would also be denaturalizing his function as “comptroller” and “guarantor” of the principles, values, rights and constitutional guarantees in the resolution of conflicts. This situation, far from being preserved, is an injury to the constitutional rule of law that the State of Guatemala intends to become.
The ruling that declares the unconstitutionality in a specific case “allowed” must be understood and valued in its just and due dimension, that is to say, as a decisive and incisive legal-constitutional decision that transcends the specific case in which it was generated. The foregoing by virtue of the following reasons:
The unconstitutionality declared by virtue of an approach of unconstitutionality in a specific case does not imply that the normative provision contravenes the constitutional norms, principles and values only in the specific case, but, rather, it implies that the same infringes the constitutional principles and values in a general, abstract and impersonal manner, regardless of the case in which its constitutionality was challenged.
For the judge to continue resolving cases by applying a norm that he not only “considers”, but even “declared” unconstitutional, would mean not only a violation of the constitutional mandate addressed to the judges that obliges them to resolve cases observing the principle of constitutional supremacy, but also a denaturalization of the jurisdictional function aimed at preserving and strengthening the constitutional rule of law.
The “ex officio inapplication” of a normative provision by the jurisdictional body that declared its unconstitutionality by virtue of a declaration of unconstitutionality in a specific case should not be understood as a case of “judicial activism”, but, rather, as a case of strict observance of the constitutional mandate to preserve the principle of constitutional supremacy and, therefore, as a legitimate, correct and constitutional exercise of the judicial function.
Just as “judicial precedents” play a fundamental role in promoting and safeguarding the principle of legal certainty in the exercise of the jurisdictional function, the jurisdictional decision on the unconstitutionality of a norm must be respected by the same jurisdictional body that issued it in the performance of its jurisdictional function, not only in order to preserve the principle of constitutional supremacy, but also to safeguard legal certainty through respect for and observance of judicial precedent.
[i] Judgment of the Constitutional Court issued in case number 1028-2016 on December 27, 2018.
[ii] Judgment of the Constitutional Court issued in case number 4197-2017 on December 19, 2018.
[iii] Judgment of the Constitutional Court issued in case number 531-94 on June 1, 1995.
[iv] Judgment of the Constitutional Court issued in case number 1682-2009 on June 17, 2009.