Introduction
Interpretation and scope of diffuse control of constitutionality
Comment
On 10 June 2011, the Political Constitution of the United Mexican States (the Constitution) was amended to strengthen the protection of human rights in Mexico, as well as to consolidate such rights as the cornerstone of the Mexican legal system. Among the many changes introduced by this reform, it is worth highlighting the amendments to article 1 of the Constitution that established, among other things, the obligation of all Mexican authorities, within the scope of their competence, to promote, respect, protect and guarantee human rights. This constitutional reform also established the principle that all authorities should, in the exercise of their functions, always choose to apply the norm that is most beneficial to individuals.
As a result of the reforms and the decision of the Plenary of the Supreme Court of Justice of the Nation (the Supreme Court) in the Radilla Pacheco case, a system of diffuse control of constitutionality was established in Mexico. That is to say, the power and obligation of judges throughout the Mexican legal system to decide not to apply a norm when it is contrary to the human rights contained in the Constitution itself was established. This obligation also applies to the international treaties to which the Mexican state is a party, as well as in the jurisprudence issued by the federal judiciary and in the criteria of the Inter-American Court of Human Rights.
Interpretation and scope of diffuse control of constitutionality
Within the Mexican legal system, one of the main and strongest tools for the protection of human rights against acts of the authorities is the amparo trial. An "amparo trial" is where a federal judge or court is requested to analyse the constitutionality of a specific act of an authority. Like the rest of the Mexican judges, the judges who hear amparo proceedings are also obliged to perform a diffuse control of constitutionality.
Notwithstanding this, the Supreme Court decided that the judges and courts that hear an amparo proceeding are not empowered to perform, ex officio, a diffuse control of constitutionality with respect to the norms that govern the proceedings or trials from which the act claimed before them derives. They can only perform this diffuse control of constitutionality in respect of the norms that govern the amparo proceeding itself. A contrary interpretation could violate procedural institutions, such as preclusion or res judicata.
Additionally, the Supreme Court held that such interpretation does not translate into a constraint on the amparo judges and courts to comply with their obligation to promote, respect, protect and guarantee human rights, since such courts may carry out a concentrated control of constitutionality following the rules and procedures that have traditionally governed the amparo proceeding. This means that the judges and courts that hear the amparo proceeding may conduct an analysis of the constitutionality of a norm when requested to do so by the plaintiff within the concepts of violation or on the occasion of the substitution of the complaint in accordance with the provisions of the Amparo Law.(1)
The Supreme Court decided(2) to abandon this criterion by considering that the diffuse control of constitutionality is necessary to protect constitutionally recognised human rights and is also compatible with principles of legal certainty because it does not interfere with the operation of institutions such as preclusion or res judicata. It also harmonises with the functioning of the system, since it respects the federal regime and the distribution of competences among the jurisdictional bodies. This is on the understanding that the result of this control is limited to the non-application of general rules in the concrete act of application without generating future effects.(3) This means that the general rules deemed unconstitutional by the amparo judge would only be unapplied to the claimant in the specific case that is the object of amparo and not to other claimants or future cases. The resolution was published in the Judicial Weekly of the Federation on 11 February 2022, so it is considered mandatory as of 14 February 2022.
It is thought that this new interpretation of the scope of the diffuse control of constitutionality in the amparo trial is more in line with the spirit of the 2011 constitutional reform since it seeks to provide amparo judges and courts with greater tools for the protection of human rights. As previously stated, the amparo trial is the gold-standard tool for the protection of human rights within the Mexican legal system; therefore, the protection of human rights should not be subordinated exclusively to the claims of the plaintiff or the cases of substitution of the complaint recognised by the Amparo Law. Rather, the judge should be obliged to provide the broadest and most effective protection possible. Likewise, the spirit of the reform is to prioritise a true protection of human rights over enervating formalisms. In this sense, with the new interpretation of the scope of the diffuse control of constitutionality, the Supreme Court has managed to harmonise the operation of procedural institutions such as preclusion and res judicata with a broad protection of human rights.
For further information on this topic please contact Eduardo Vinssac at Martínez Algaba de Haro y Curiel by telephone (+52 55 5258 0202) or email ([email protected]). The Martínez Algaba de Haro y Curiel website can be accessed at www.mah.com.mx.
Endnotes
(1) Precedent P X/2015 (10a) Plenary of the Supreme Court of Justice of the Nation. Digital record: 2009817.
(2) Contradicción de tesis 351/2014.
(3) Precedent P/J 2/2022 (11a), Plenary of the Supreme Court of Justice of the Nation. Digital record: 2024159.