Principle of substance over form
On 15 September 2017, the House of Representatives reformed article 17 of the Mexican Constitution in order to add a paragraph, as a result of a study carried out by the Second Chamber of the Supreme Court of Justice. As a result of this analysis, the Court has issued a jurisprudential criterion registered under Jurisprudential Thesis No. 2a/J 16/2021 (11a) regarding the principle of substance over form, which must be applied by all authorities in the resolution of materially jurisdictional proceedings.
Principle of substance over form
Under the terms of the Court's criterion, the third paragraph of article 17 of the Constitution establishes the principle of substance over form, which obliges all authorities with materially jurisdictional powers in Mexico to privilege the substantive resolution of conflicts submitted to their power over procedural formalisms, provided that the procedural equality between the parties is not affected.
Having analysed this legal precept, the legislature considered that, in order to address the problem of the "proceduralist culture" – which causes a significant number of cases to be paralysed by merely formal issues, leaving aside the merits without resolving the controversy – it was necessary to expressly establish an obligation for the authorities to give priority to the resolution of the substance of a case, above formal aspects.
This duty requires a change in the method of the authorities so that, in handling cases, the courts do not opt for the simplest or quickest resolution but for that which effectively closes the controversy and facilitates the application of substantive law.
In addition, the explicit incorporation of the principle of form over substance is intended to permeate the justice system at a national level. This means that all judicial authorities with materially jurisdictional powers in the country should not only be subject to its enforcement, but also recognise the reason and moral principle underlying it, beyond its mandatory nature.
By virtue of the above, since the entry into force of the amended third paragraph of the Constitution, all jurisdictional authorities must give priority to the resolution of disputes submitted to their jurisdiction, regardless of whether the rules governing their procedures expressly establish this issue. The teleological analysis of this reform indicates that the added principle will support the entire national justice system so that the authorities will give priority to a substantive resolution, thus avoiding unnecessary and dilatory referrals of jurisdiction in the administration of justice.
It should be noted that in issuing the diverse jurisprudence registered under Jurisprudential Thesis No. 1a/J 29/2021 (11a), the First Chamber of the Supreme Court established that the subjection of the jurisdictional authorities to this principle is not unrestricted but is conditioned to the fact that, in procedures which follow the form of a trial, its application does not affect the equality between the parties, due process or other rights.
It is thought that the reform by which this principle was explicitly added to the Constitution, and in particular Jurisprudential Thesis No. 2a/J 16/2021 (11a), will bring a considerable improvement in the administration of justice and result in a reduction of the unnecessary formalisms that characterise the Mexican justice system.
For further information on this topic please contact Alejandro Legaspi Lanz or Diego Velázquez Lavínat Martínez Algaba de Haro y Curiel by telephone (+52 55 5258 0202) or email ([email protected] or [email protected]). The Martínez Algaba de Haro y Curiel website can be accessed at www.mah.com.mx.