SCJN Says No to Amparo Trial as Avenue to Challenge Constitutional Amendments

30 03 2011

The Suprema Corte de Justicia de la Nacion, Mexico's Highest Court, in Plenary Session

Amendments to the Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the Mexican United States, MXConst) cannot be challenged through Amparo trials, the Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, ruled last March 28th.

Last Monday’s SCJN session was a continuation of their 01.31.11 meeting that ended in a 5-5 vote draw. Ministro Jorge Mario Pardo Rebolledo, the Court’s newest justice, had the uneasy task of starting his rookie year tipping the scale (although at the end there were 7 votes for the proposed denial, as the transcript of the session indicates).

The case at hand was a revision by the SCJN of an Amparo trial that had been dismissed by a lower federal court where private citizens lead by Federico Reyes Heroles, Head of Transparencia Mexicana, Mexico´s Chapter of Transparency International, argued that a 1997 constitutional reform prohibiting access to private individuals to buy electoral publicity, which has now to be bought by political parties only through Mexico’s Instituto Federal Electoral (Federal Electoral Institute, IFE) violated the fundamental right to free [political] speech .

Jorge Castañeda (fmr. Minister of Foreign Affairs); attorney Alonso Aguilar Zinser and Federico Reyes Heroles (president of Transparencia Mexicana) at the Supreme Court

An Amparo trial (as Wikipedia explains it) is a Mexican federal trial where a complainant alleges violation of her constitutional rights by an authority. Almost any Mexican authority can be sued via Amparo. Even Congress. (For more on Amparo trial, see my brief PowerPoint Presentation.)

The issue was whether Amparo trial was the proper venue to challenge the constitutionality of a constitutional amendment. In other words: could Federal courts entertain a trial where a modification to the MXConst itself was questioned.

The SCJN sided with the lower court, saying that the Amparo trial is not the proper venue, mainly because Amparo sentences have no universal, erga omnes effects, but only benefit the plaintiffs that brought it (this characteristic is known as the relativity principle or Otero Formula, first proposed by 19-Century jurist Mariano Otero, the Father of the Amparo trial (read a good article about it by Mexican professor Juan Real Ledesma).

Jorge Castañeda, former Minister of Foreign Affairs of Mexico and one of the plaintiffs in the original case, was understandably disappointed. Mexicans have no right to hire electoral publicity, and since the new rule is part of the Constitution, have no means of challenging it either. On a broader level, individuals have no right either to challenge any amendment to the Constitution, even if they contradict or nullify fundamental rights within it (as the Court suggested in a non–binding jurisprudence precedent of 2002 on the issue of the crime of illicit enrichment). The SCJN did not ruled on the substance of the Amparo complaint.

Ministro José Ramón Cossío Díaz voted for allowing the review of the case via Amparo, and announced a dissenting opinion (or as is said in Mexico, a voto particular); I look forward to reading the opinion of the SCJN most advanced scholar (before joining the Court, he was the dean of the school of law of ITAM).

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