Important Constitutional Amendments

June 5, 2011
Important Constitutional Amendments

After many years, in which different individuals have discussed the need to substantially amend the constitutional writof amparo, Mexico’s President has finally signed the Decree amending and adding articles 94, 103, 104 and 107 of theMexican Constitution. A significant step was taken as the amendment was published in the Official Journal of theFederation (Diario Oficial de la Federación) on June 6 and scheduled to take effect 120 days after publication. Withthe constitutional framework resolved, the process initiated years ago to amend different laws, particularly the AmparoLaw, will continue. These amendments were begun in 1999, when the Supreme Court (Suprema Corte de Justicia dela Nación) assembled a work group to prepare a draft bill amending the Amparo Law. Two years later, this draft bill,which was submitted for the approval of the Supreme Court, was discussed at a national conference in the city ofMérida. Years later, several legislators reintroduced the issue and submitted a draft for consideration by the Senate.Such new draft distorted the main purpose of adequately changing the Amparo Law, and the effort was discarded.According to a statement by Justice José Ramón Cossío in a newspaper article, as a result of influence by federallegislators and the Supreme Court itself, efforts for the promulgation of a new Amparo Law were reintroduced threeyears ago. Considering that the Supreme Court does not, as part of its federal judicial power, have the legal capacity todraft legislation, as do other supreme courts, such as in Spain, the scope and prestige of its judicial influence weredefinitive factors in keeping the idea of an amendment to the Amparo Law alive. The uncertainty that still remainsamong the legislature, the judiciary, and Mexican academia is whether amendments to the Amparo Law are enough, orwhether a completely new Amparo Law, and everything else that this would imply, must be promulgated. The questionthat legislators will have to answer is whether the amparo will serve as a means of protecting individual constitutionalguaranties. This would mean that nothing would change: an amparo may only be filed by a person who has beenaffected by an authority and the amparo’s effects will be limited only to that person who files for and obtains theprotection of an amparo, as is presently the case. According to others, the amparo is a process and a way by which tosecure the protection of fundamental rights. Consequently, the Amparo Law should be substantially amended to ensurethat its implications are general (erga omnes). The legislative branch is currently at that crossroads as its members mustnow discuss and approve new laws deriving from the constitutional amendments that have been promulgated. Thepurpose of this amendment, among others, is to stop the abuse resulting from the suspension of the act claimed by theamparo. The amendment is intended to prevent someone from using the amparo as a way to evade justice or to serveas a means to make the process difficult for authorities. Suspensions via an amparo may be granted or denied onlywhen it is clear that the amparo is not being used to evade the law. Amparos shall be considered as properly filed onlywhen rights guaranteed by law have been violated. It is mentioned that the rights arising from Mexican law are not theonly ones subject to protection. Those rights deriving from international treaties that have been ratified and consideredto be law in the country are also included. The new capacity of the Supreme Court to issue declarations regarding theunconstitutionality of laws and general standards is of great significance. A declaration of unconstitutionality withgeneral or collective validity may be issued when such jurisprudence is affirmed, 90 days have transpired, and noauthority has corrected any omissions. In addition, the constitutional amendment that gives the Supreme Court thecapacity to establish panels considering the number and specialization of the constitutional amparo circuits by generalagreement is also relevant. These panels, comparable to panels used in appellate courts in the United States to resolvematters in a collegiate manner, will allow the presidents from each circuit panel to resolve contradictory case decisionsthat may arise. This will allow the Supreme Court to resolve and have more time to attend to amparo proceedings,constitutional controversies and unconstitutional acts, which will be a top priority when one of the houses in Congressor the executive branch indicates that an urgent matter is in the best interests of the public pursuant to the constitutionalamendment promulgated.

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