President Bernardo Arévalo is seeking the support of the Constitutional Court (CC) to make public the negotiations of the collective agreement of the Ministry of Education; but his advisory opinion lacks constitutional support, according to the opinion of consulted lawyers.
On May 15, President Bernardo Arévalo submitted a consultation to the CC and asked three questions seeking to determine whether union negotiations can be considered confidential issues.
Currently, the Ministry of Education and the Union of Education Workers of Guatemala (STEG), headed by Joviel Acevedo and the one with the most members, are advancing in negotiations for a new collective agreement, amid sessions that are not public due to confidentiality clauses that prevent their publicity.
The discussion
The case was heard by the plenary session of constitutional judges on July 10, but before making a decision they requested information from the Presidency of the Republic.
Four of the five magistrates who are hearing the case supported the request for new documents. Some magistrates have so far had some doubts regarding whether the issue can be treated as a constitutional matter.
Last Wednesday, the CC requested the Presidency to provide, within a period of no more than five days, the reasons on which the request for confidentiality of the negotiations of the pact was based, and to explain what type of documents, actions and proceedings can be considered confidential.
If the Presidency does not respond within the deadline, the advisory opinion will be rejected.
The only one who did not support requiring more information before making a decision was Judge Leyla Lemus. She is the rapporteur of the case and her vote was dissenting in the resolution of file 2964-2024, which required the information and summoned the Presidency of the Republic.
Backless
Experts in constitutional matters also doubt the support for the referendum, since they believe that, as it is an administrative issue, it can be resolved directly by the Executive Branch without having to go to Parliament.
“It is an example of the president’s weakness of character. The constitution is very clear in stating that all acts of public administration are public, without confidentiality, unless for state security, and this requirement is not met here,” said constituent Aquiles Faillace.
In addition to seeing that the consultation lacks the constitutional backing to be resolved, Faillace detects another problem: the negotiations continue in secret.
“That is a big problem, because if the president wants to publish and be transparent in the negotiations, he will not continue with them; but if he does not want to publish the negotiations, then they should remain secret,” said the constituent.
Lawyer Francisco Quezada, a legal analyst at the National Economic Research Center (CIEN), also sees weaknesses in the presidency’s legal action. He doubts that the CC has jurisdiction in this matter.
“These types of consultations cannot be carried out by the CC. The Court is only there for constitutional issues, constitutional interpretation, not to resolve administrative matters. I believe that the purpose of the consultation will not fit and the CC might determine that the budgets are not met,” explained Quezada.
The lawyer for Cien believes that the strategy of the Presidency might have an ulterior motive, since it is an action that has a long period of time to be resolved.
“I think they are buying time, because the collective agreement is moving forward and the point will come when they will sign it (…) to say that I was active in wanting to make it transparent, but I turned to other authorities who did not give their approval,” Quezada reflected.
Few options
The confidentiality of the collective agreement on Education has already reached the Cortes, but its resolutions have not been the most favorable.
Constitutional lawyer Edgar Ortiz filed a first appeal before the Supreme Court of Justice (SCJ) seeking transparency and publicity of the document, but the full court suspended his appeal.
Now, with the advisory opinion of the president, Ortiz believes that if it is resolved, it may not provide a concrete answer to the discussion of the collective agreement on Education.
“The advisory opinion is not binding, it is only a guide for limits or scope of interpretations. The questions raised by the president have a value in the future with respect to the interpretation of the negotiations with the collective agreements,” Ortiz argued.
The lawyer filed a second amparo action on the same issue, but now before the CC, of which he has not received further notification following it was admitted for processing.
No posture
The CC gave the Presidency a five-day deadline to send the necessary reports to respond to the President’s advisory opinion.
An attempt was made to obtain the opinion of the Secretary General of the Presidency, Juan Gerardo Guerrero, to find out if they might deliver the documents on time, since if they did not, the consultation would be rejected.
His opinion was also sought in response to the doubts expressed by the lawyers regarding the legal basis of the consultation opinion, but it was not possible to establish communication with the official of the Executive Branch.
Joviel Acevedo’s education union also filed a complaint with the CC over the suspension of school health insurance. It filed an injunction that was not granted and a constitutional action once morest the Executive’s decision, which has not been definitively resolved.
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