Who Defends the Offended?

Those are words from our constitution on one of the sacred postulates of any country: the right to be defended. But we ask ourselves, to what point this legality principle has been manipulated within our fragile legal system, causing greater and more serious evils than those it is trying to avoid?

Jurists and legislators might try, with profound philosophical and juridical intentions to find the best way to guarantee the right of defense. This activity, although most interesting for those concerned with the law, does not concern the rest of the community. The community members are concerned with what it finds to be an inefficient legal body.

Those in the construction business, or in real estate, will be worried if, when properties are leased, they will not have the certainty that the law will support them fully when there is a break of terms of lease. The banker is worried that, should there be incompliance in the form of payment, a swift arrangement in the mortgaged properties will be possible, and not the interminable appeals and dilatory tactics of the debtors. The inventor worries about keeping exclusivity for his invention, and the manufacturer worries that he will not be able to avoid cheap copies of one of his prestigious brands.

The common businessman cannot understand how the total unfulfillment of the legal mechanisms is supposed to be in order to protect the right to be defended.

On the other hand, jurists and legislators are often lost in abstract debating, without perceiving the practical effects of the laws they create. These effects are suffered by all of us and, curiously, both the common citizen and those that create the laws blame the people (judges and lawyers) for the Justice Organism being inoperative.

It is easier to criticize the people and not the system. But at this moment, Guatemala will benefit much more if the critics by the community in relation to the inefficiency of the Justice Organism would be aimed to changing the Civil and Mercantile Law.

With clear proof, such as a contract or lease, and breach of payment, why can't the judge immediately evict the tenant? But this is impossible under our present Civil Law, even though the judge might honestly want to carry out the eviction, the system does not allow it. Why? Because the tenant has the right to be defended. Whom, then is the law defending?