El control jurisdiccional de la legalidad, (lo formal versus lo integral)

Abstract

This work deals with the principle of the rule of law and the conditions that, in the opinion of his author, would have to concur so that the said principle shall become effectively applied by the courts, or more specifically, by the Administrative Court of Guatemala. The subject is approached in an introduction that refers to the aspects of Guatemala's reality concerning judicial review and how this reality contrasts with the principles contained in its Constitutions, the Laws and the official discourse. It discusses certain issues of a philosophical nature relative to the ideal of the rule of law and defines the objective of the research task. The thesis then refers briefly to the history, prior to the French Revolution, of the ideal of the rule of law and describes the problems that the extreme interpretation of the theory of the separation of the powers of the State created in France. Immediately following this section, the work covers the historical development of the principle of the rule of law in the several constitutions of Guatemala, beginning with the Cadiz Constitutions, dealing also with the laws that have governed the subject matter of judicial review. From that perspective the author proceeds to discuss several rulings of the Constitutional Tribunal and the Supreme Court of Justice of Guatemala, in respect of which the author analyzes and criticizes certain ways of approaching the respective matters which, in his opinions, show a formalist or timid mentality on behalf of said tribunals when it comes to the protection of the rights of the citizens by the Courts. The second part of the work contains a synthetic analysis of the French, Spanish, English and American systems of judicial review, all from the perspective of the most salient characteristics that could be associated or related with the effectiveness or materiality with which judicial review is carried out in all those countries. Of the French system the author points out its case law evolution; of the Spanish system, the way in which jurisprudence and scholarly doctrine have enhanced the several laws (notably from that of 1956) that have regulated this matter; and of the English and American systems reference is made to the different techniques that have been developed in order to face the substance of the of the cases brought to the competent Courts. From this overview the author goes on to a recapping of the most important elements, in a more concentrated way, of the several specific concrete issues that point to the fact that it is the case law and the scholarly doctrine, more than the letter of the law, that have made judicial review of the actions of the Administration an effective reality in all those systems. On the basis of these findings, in the third and final section, the thesis deals with the aspects that bear on the inexistence of a jurisprudential and scholarly tradition on judicial review in Guatemala and a includes some specific suggestions related with those issues, as well as with those necessary, at both a constitutional and legislative level, in order to remove the principal causes of formalistic attitude and a mentality that the author considers to be a direct consequence of the shortcomings or structural problems of the system of judicial review and, in general of the Court system of Guatemala. The conclusions consist of a synthesis of the work.

Date of Award	26 Jul 2004
Original language	Spanish
Supervisor	Antoni Milian Massana (Director)