The former magistrate of the Supreme Court of Justice (CSJ), Luis Fernández Molina, does not doubt that having modified the Organic Law of the Public Ministry (MP) in 2016 was a mistake to benefit a single person.
“That is the problem, when a law is modified personally, a la carte, for a particular circumstance,” explains the Guatemalan lawyer.
For Fernández Molina, that happened in 2016: “that legislation was promoted to protect Thelma Aldana, which was wrong and now that same umbrella or shield covers Consuelo Porras.”
For the expert, it was a mistake to change the law in 2016, because “it was personalized, casuistic and circumstantial. The law cannot be that way. Laws must be, and are, impersonal, abstract and generalized.”
Return item
In 2016, the Organic Law of the MP was modified related to the removal of the attorney general and head of the institution. On Tuesday, February 23 of that year, 140 deputies voted in favor of the approval of decree 18-2016, reform of the Organic Law of the investigative entity.
Now, the Executive has asked Congress to discuss in plenary session the restoration of that legislation to proceed with the removal of the attorney general, in this case, Consuelo Porras.
Former magistrate Fernández assures that in any case the MP Law is currently unconstitutional, because the Magna Carta establishes two things in article 251, on the one hand, he explains, the MP is an auxiliary institution of the administration, “so there can be no lawsuit between the head of that administration and one of his assistants.”
And on the other hand, it says that it has autonomous functions, but not that it is totally autonomous.
“But even more important is that at the end of the text it establishes that the President of the Republic may remove the attorney general or head of the MP with justified cause, duly established. The Constitution says that,” argues Fernández.
Therefore, Fernández says: “the president has the full right to remove the prosecutor with justified cause, as article 251 of the Constitution says.”
If there is no change
If the changes to the Organic Law do not occur in Congress, we would have to turn to the Constitutional Court, where this court has already decreed that it is not unconstitutional. Although here the outlook is uphill for the Executive.
“In accordance with article 43 of the Amparo Law, the CC can change criteria, but must justify why it does so,” explains Fernández.
He adds: “Until now the CC has maintained the criterion that this law is not unconstitutional, and that it is applicable law, but if its criterion changes, it automatically opens the door and saves the Executive the entire modification process. ”.
Likewise, it should not be lost sight of, the expert believes, that the process of reforming the MP law must go through the CC again. A Court that has denied endless actions to the current official party.
Consequences
The consequences of changing this Law again for Fernández is that it falls “into a purely casuistic circumstance, due to a specific situation. “That is a bad precedent, because the law must be generic, broad and abstract.”
“In a sense we would return to constitutional prevalence, but it is always being done or attempted at a conjunctural moment,” he analyzes.
Retroactivity would apply to the prosecutor, as established by the Constitution. “Here there is no acquired right, it is not labor law, but rather a purely institutional and administrative right,” adds the former magistrate.
Although it is difficult for them to modify the law at this time, due to timing, votes, and other circumstances, if it happens, the president could immediately remove the prosecutor. “It would go back to how it was done since 1993,” he remembers.
“We have a ‘castrated’ Constitution in the sense that, if it gives full rights, there is no reason for an inferior law to limit what the Magna Carta proclaims,” argues Fernández Molina.
advertising lever
Fernández does not consider that this fight between the Executive and the MP will have negative effects on the high court election in the country, whose nomination process has already been called.
“For me this is an advertising lever. The president and his advisors know that this reform is not going to come out this year, and if it does come out it will be in the middle of next year, because first, Congress ends ordinary sessions on May 17,” he reflects.
He adds: “We would have to wait for the second period, then have 107 votes, which is very difficult. It was demonstrated with the recent attempt to decree a state of emergency.”
Of course, Fernández analyzes, “unless there was some type of motivation or incentive for some deputies to return their visa in exchange for their vote. Or what do I know, this is pure speculation on my part, but some of that would be behind this advertising lever.”
President @BArevalodeLeon presented an initiative to put an end to the abuses of power and the co-option of the Public Ministry by Consuelo Porras.
The Government’s commitment is to the will of the people and to the recovery of justice so that Guatemala can emerge… pic.twitter.com/D9odYUVlGK
— Government of Guatemala (@GuatemalaGob) May 6, 2024
When referring to advertising leverage, Fernández considers it to come because of the promises made in the first 100 days, which perhaps were not all fulfilled.
“It’s like saying: look, it’s not my fault, I tried, but you see who it is. You already saw where the blockage is, the handbrake,” she argues.
Fernández also sees it as a message to the United States, regarding the visit of the Secretary of State, Anthony Blinken.
“They send the message of ‘I try to do things well’. In fact, I stand next to my dad’s photo, so they can see that we are the best governments. We try to do things, which must also be given credit, which is true in many aspects, but basically what this advertising lever wants to convey is ‘I want to, but they won’t let me and these mafias will. It also serves to excite the population, to inflame it, in the sense that opposition to this climate of corruption that unfortunately exists grows.
📢 #Press release #MPfuerteYfirme
The Public Ministry reports: pic.twitter.com/o6QQk15LSD— MP of Guatemala (@MPguatemala) May 6, 2024
Causes
International sanctions do not count towards removing Porras as attorney general, Fernández assures, so having been included on the Engel list does not mean the immediate removal of the attorney general.
“Not at all,” he says, but yes, he explains, “the inaction, the own, the few, poor and very pauper results regarding large investigations such as the Chimaltenango bypass, the Q122 million – from José Luis Benito -, the purchase of Sputnik vaccines, the hospitals, the cases that the Minister of Communications has presented, “those are causal,” he argues.
According to the former magistrate, there are many cases that demand that they be investigated, but they have not done so.
“What the president is also doing in this advertising lever is to put pressure and raise the bar well, so that within two years it will be said: look, you did not comply and therefore, there will be a new prosecutor appointed by Arévalo and in some way it changes the perfect scenario,” he points out.
#advertising #lever #president #reform #happen #year