Título Cuatro. Constitucionalidad de las leyes

The courts of justice shall always observe the principle that the Constitution prevails over any law and international treaty, without prejudice to that in matters of international conventions accepted and ratified by Guatemala.

Laws and governmental provisions or provisions of any other order that regulate the exercise of the rights guaranteed by the Constitution shall be null ipso jure if they violate, diminish, restrict or distort them.

No law may contravene the provisions of the Constitution. Laws that violate or distort constitutional norms are null ipso jure.

In specific cases, in any proceedings of any competence or jurisdiction, at any instance and in cassation, before judgment is rendered, the parties may raise, as an action, exception or incident, the total or partial unconstitutionality of a law for the purpose of having its inapplicability declared. The tribunal shall rule thereon.

The unconstitutionality of a law may be raised in cassation until before judgment is rendered. In this case, the Supreme Court of Justice, once the unconstitutionality proceeding is exhausted and prior to deciding the cassation, shall rule on the unconstitutionality in a reasoned order. If the decision is appealed, it shall remit the case file to the Constitutional Court.

The unconstitutionality may also be raised as a ground for the appeal and in this case its consideration is mandatory.

When in specific cases unconstitutional laws or regulations are applied in administrative actions, which by their nature have apparent validity and are not grounds for constitutional relief (amparo), the affected person shall be limited to pointing it out during the corresponding administrative proceedings.

In these cases, unconstitutionality shall be raised in contentious-administrative proceedings within the thirty days following the date on which the decision became final and shall be processed in accordance with the procedure for unconstitutionality of a law in a specific case.

However, unconstitutionality may also be raised in the appeal in cassation, in the manner established in the preceding article, if it was not raised in contentious-administrative proceedings.

In labor matters, in addition to the general rule applicable to every trial, when the unconstitutionality of a law is raised during proceedings arising from a collective labor dispute, it shall be decided by the corresponding labor tribunal.

In concrete cases, the person directly affected by the unconstitutionality of a law may raise it before the tribunal corresponding according to the subject matter. The tribunal assumes the character of a constitutional tribunal.

If unconstitutionality is raised in proceedings conducted before a lower Trial Court, it shall immediately refrain from continuing to hear the case and shall send the record to the hierarchical superior who shall hear the unconstitutionality in first instance.

In the action of unconstitutionality in concrete cases, once the claim has been filed, the tribunal shall grant a hearing to the Public Prosecutor's Office and to the parties for a term of nine days. Upon expiration of this term, a public hearing may be held, if any of the parties should request it.

The tribunal shall decide within the following three days. The decision shall be appealable before the Constitutional Court.

If the plaintiff seeks within the same proceedings a declaration of unconstitutionality together with other claims, the tribunal shall grant a hearing as provided in the preceding article. Upon expiration of the time limit, whether or not the parties have appeared, the tribunal shall, within three days, issue an order deciding exclusively the unconstitutionality claim.

In concrete cases the parties may raise, as an exception or in an incident, the unconstitutionality of a law that has been cited as legal basis in the claim, in the answer, or that in any other way arises from the proceedings of a trial, the tribunal being required to rule in this respect.

Once the unconstitutionality of a law has been raised, as an exception or in an incident, the tribunal shall process it in a separate record, shall grant a hearing to the parties and to the Public Prosecutor's Office for a term of nine days and, whether or not the hearing has been responded to, shall rule on the unconstitutionality in a reasoned order within the term of the following three days.

If other defenses are filed together with the defense of unconstitutionality, the procedure for the latter shall be that corresponding to them according to the nature of the proceedings in question. If the defenses filed include those of lack of competence or arbitration agreement, these shall be decided beforehand in that order. In due course, the competent tribunal shall decide the unconstitutionality defense within the time limit established in the preceding article. The remaining defenses shall be decided once what relates to unconstitutionality becomes final.

The proceedings shall be suspended from the moment the first-instance tribunal issues the order deciding the matter relating to unconstitutionality, until it becomes final. The tribunal may only continue to hear the matters referred to in Article 129 of this law.

The decision referred to in Article 121 and the orders issued regarding unconstitutionality in the other cases are appealable. The appeal shall be filed, in a reasoned manner, within the third day.

From the time the appeal is filed, the jurisdiction of the tribunal is limited to granting or denying the appeal.

Notwithstanding the provisions of the preceding article, the tribunal may continue to hear:

a)Incidental matters being processed in a separate file formed before the appeal is admitted;

b)All matters relating to embargoed property, its preservation and custody; its sale, if there is danger of loss or deterioration; and matters relating to precautionary measures; and

c)The withdrawal of the appeal filed if the case file has not been transmitted to the Constitutional Court.

In the processing of the appeal, upon receipt of the record, the Constitutional Court shall set, on its own initiative, day and time for the hearing within a period that shall not exceed nine days. The hearing shall be public if any of the parties so requests.

The judgment shall be rendered within the six days following the hearing.

When the judgment becomes final, the proceedings shall be returned immediately to the tribunal of origin, with certification of the ruling, for the consequent effects.

If the tribunal hearing the case denies the appeal, where such appeal is proper, the party deeming itself aggrieved may resort de facto to the Constitutional Court, within the three days following notification of the denial, requesting that the appeal be granted.

The Constitutional Court shall remit the original petition to the lower tribunal so that it reports within the following twenty-four hours. In view of the report, it shall decide the petition within twenty-four hours, declaring whether or not the order from which the appeal was denied is appealable. If the Constitutional Court deems it necessary, it shall request the original record.

In the first case it shall request the original record and shall proceed in accordance with the provisions of Article 130, and, in the second, it shall declare the petition without merit, ordering that the respective proceedings be archived and imposing on the petitioner a fine of fifty quetzales.

The unconstitutionality of laws, regulations or provisions of a general nature that contain a partial or total vice of unconstitutionality shall be raised directly before the Constitutional Court.

The following have standing to raise the unconstitutionality of laws, regulations or provisions of a general nature:

a)The Board of Directors of the Bar Association acting through its President;

b)The Public Prosecutor's Office through the Prosecutor General, or the Attorney General's Office (Procuraduría General de la Nación);

c)The Human Rights Ombudsman against laws, regulations or provisions of a general nature affecting interests within its jurisdiction;

d)Any person with the assistance of three active licensed attorneys.

The petition of unconstitutionality shall be made in writing, containing, as applicable, the requirements required in every first filing in accordance with the common procedural laws, expressing in a reasoned and clear manner the legal grounds on which the challenge rests.

If requirements have been omitted in the memorial of interposition, the Constitutional Court shall order the filing party to supply them within three days.

When the unconstitutionality raised is against a law, the Constitutional Court shall be composed of seven members in the manner provided in Article 269 of the Constitution.

Without prejudice to the provisions of Article 136, the Constitutional Court shall order, on its own initiative and without opening a separate proceeding, within the eight days following the filing, the provisional suspension of the law, regulation or provision of a general nature if, in its judgment, the unconstitutionality is manifest and capable of causing irreparable injury.

The suspension shall have general effect and shall be published in the Official Gazette on the day following its issuance.

If provisional suspension is not ordered or, where applicable, once it has been ordered, a hearing shall be granted for fifteen common days to the Public Prosecutor's Office and to any authorities or entities that the Constitutional Court deems pertinent, upon the expiration of which, whether or not the hearing has been responded to, a day and time shall be set on its own initiative for the oral hearing within a period of twenty days. The oral hearing shall be public if requested by the petitioner or the Public Prosecutor's Office. The judgment shall be issued within the twenty days following the date of the oral hearing.

The Court shall issue judgment within a maximum period of two months from the date on which the unconstitutionality was filed.

When the judgment of the Constitutional Court declares the total unconstitutionality of a law, regulation or provision of general character, they shall cease to be in force; and if the unconstitutionality is partial, it shall cease to be in force in the part declared unconstitutional. In both cases they shall cease to have effect from the day following the publication of the ruling in the Diario Oficial.

When provisional suspension has been ordered pursuant to Article 138, the effects of the judgment shall relate back to the date on which the suspension was published.

No appeal shall lie against the judgments of the Constitutional Court and against the orders issued in accordance with the provisions of Article 138.

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Unconstitutionality in any case shall be decided as a point of law. Nevertheless, for its decision, antecedents, advisory opinions, opinions, doctrinal elements and jurisprudence may be invoked and consulted.

The tribunal before which unconstitutionality is raised shall rule on it, on pain of liability.

The judgment on unconstitutionality shall be rendered in accordance with the provisions of this law for the proceedings of constitutional relief (amparo) and of unconstitutionality in specific cases, insofar as they are applicable.

Unconstitutionality may only be declared with the favorable vote of the absolute majority of the members forming the tribunal.

The publication of the judgments of the Constitutional Court declaring total or partial unconstitutionality shall be made in the Official Gazette within the three days following the date on which they become final.

Against judgments and orders issued in matters of unconstitutionality, clarification or amplification may be requested. For such purpose, the provisions of articles 70 and 71 of this law shall apply.

When the unconstitutionality is declared without merit, the tribunal of first instance and the Constitutional Court, as applicable, shall impose on each of the assisting attorneys a fine of one hundred to one thousand quetzales, without prejudice to the award of costs against the filing party.

Said sanction shall not be imposed nor shall costs be awarded, when the filing party falls within subsections a), b) and c) of Article 134 of this law.