By: Ralph G. Smth and Daniel Smith
Most Latin American countries have monolithic court systems, with the Supreme Court of Justice, as it is usually called, at the top, and, below that, the court or courts of appeal or casación, also often known as the second instance court, the tribunal de segunda instancia. Working down the ladder, we have the first instance court, which is the equivalent of the Superior Court or District Court in a common law jurisdiction. At the bottom, in most countries, is the juez de paz, the justice of the peace.
In many countries there are separate court systems for administrative appeals, or labor laws, which do not operate under the judicial branch. There may be separate Constitutional Courts which deal with constitutional questions which are not entrusted to the regular judiciary. The growth of constitutionalism and the blurring of the formerly sharply drawn lines between public law and private law have made adjustments in the system necessary.
The supreme courts in most Latin American countries have many more justices than in the United States, and the Supreme Court is frequently divided into several sections, or salas, which are assigned to handle only specified types of cases. For example, the Supreme Court of Ecuador was recently expanded from sixteen to thirty-one justices (“ministerios jueces” in that country). The court is divided into six salas of five justices each. The salas are Civil, Criminal, Labor, Administrative, Fiscal and Constitutional. The “extra” justice is the chief justice, the presidente of the court.
The justices of the Supreme Court, or “magistrates”, as they are usually called, may be chosen by the president of the republic, or by the legislature, or by some combination of recommendation and appointment. In Guatemala, there are nine magistrados of the Supreme Court of Justice. Each has a fixed term of office of six years. Four of the nine are elected by the Congress, directly. The other five are selected by the Congress from a list of thirty candidates proposed by a nominating committee composed of the deans of the law schools of each university in the country; an equal number elected by the Bar Association, and a representative of the judiciary named by the supreme court. The magistrados elect a chief justice, the presidente, from among their own number.
In Guatemala, the appellate judges of the corte de apelación are selected by the Congress from a list of candidates submitted by the Supreme Court. All other judges, which leaves only first instance judges and jueces de paz, are named by the supreme court. In other countries, the Supreme Court may select all judges (and support personnel) below its own level. It may be seen from the power structure outlined above that in most countries the supreme court, and particularly the presidente thereof, has a great deal of clout. If the presidente is in good graces with the Congress, he can exercise a great deal of power, since he can control the whole court system by means of selective judicial appointments.